Citation Nr: 1323220 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 10-07 788 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial compensable disability rating for status-post left knee patella dislocation prior to April 22, 2013. 2. Entitlement to an initial disability rating in excess of 10 percent for status-post left knee patella dislocation from April 22, 2013. 3. Entitlement to a compensable disability rating for hypertension. 4. Entitlement to service connection for a left foot disability, to include as secondary to service-connected status-post left knee patella dislocation. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty from June 1989 to February 1994. These matters come before the Board of Veterans' Appeals ("Board") on appeal from an October 2009 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Roanoke, Virginia, which, inter alia, awarded service connection for status-post left knee patella dislocation with an initial noncompensable rating, effective June 2, 2009; denied an increase in a noncompensable rating for service-connected hypertension; and denied service connection for left foot nerve damage. The jurisdiction for the claims has since been transferred to the St. Petersburg, Florida, RO. In a May 2013 rating decision, the VA Appeals Management Center ("AMC") increased the disability rating for the Veteran's left knee disability to 10 percent, effective April 22, 2013. Despite the assignment of an increased disability evaluation for this disorder, the issue remains in appellate status because the Veteran has continued to express disagreement with the assigned ratings. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (a rating decision issued after a notice of disagreement which grants less than the maximum rating available does not "abrogate the pending appeal"). In October 2012, the Veteran testified before the undersigned Veterans Law Judge during a Travel Board hearing at the St. Petersburg RO. A transcript of the hearing has been associated with the Veteran's claims folder. In February 2013, the Veteran's claims were remanded for additional development, specifically, to afford the Veteran updated examinations, provide him notice of how to substantiate a service connection claim on a secondary basis, and obtain additional treatment records. The claims file has since been returned to the Board. These actions having taken place, the Board is satisfied that its remand directives were properly carried out. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand). Pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Accordingly, the Veteran's service connection claim for left foot nerve damage has been recharacterized as reflected on the title page of this decision. The Board notes that a portion of the Veteran's records are contained in the Virtual VA system. Instead of paper, a highly secured electronic repository is used to store and review every document involved in the claims process. The use of this system allows VA to leverage information technology in order to more quickly and accurately decide a veteran's claim for benefits. FINDINGS OF FACT 1. For the period June 2, 2009 to April 21, 2013, the Veteran's status-post left knee patella dislocation was manifested by symptoms no greater than minimal degenerative arthropathy of the patellofemoral compartment, and subjective complaints of pain, without any objective evidence of compensable limitation of motion of the joint. 2. For the period beginning April 22, 2013, the Veteran's status-post left knee patella dislocation has been manifested by symptoms no greater than minimal degenerative arthropathy of the patellofemoral compartment, subjective complaints of pain and flexion limited to no less than 125 degrees. 3. Throughout the period on appeal, the Veteran's hypertension has not been shown to be productive of diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more, nor has there been a showing that he has a history of diastolic pressure predominantly 100 or more with required use of continuous medication for control. 4. The probative and competent evidence of record demonstrates that the Veteran's left foot disorder is not causally related to a disease, injury or event in service, is not the result of aggravation of a congenital defect by a superimposed disease or injury during service, did not manifest within one year of separation from service, and was neither caused, nor aggravated by his service-connected status-post left knee patella dislocation. CONCLUSIONS OF LAW 1. For the period June 2, 2009 to April 21, 2013, the criteria for an initial compensable disability rating for status-post left knee patella dislocation were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.27, 4.71a, Diagnostic Code 5099-5024 (2012). 2. As of April 22, 2103, the criteria for a disability rating in excess of 10 percent for status-post left knee patella dislocation were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.27, 4.71a, Diagnostic Code 5099-5024 (2012). 3. The criteria for a compensable evaluation for hypertension have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.27, 4.104, Diagnostic Code 7101 (2012). 4. The Veteran's current left foot disorder was neither incurred in, nor aggravated by active service, and may not be presumed to have been incurred therein, and was neither caused, nor aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 111, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307(a)(3), 3.309(a), 3.310(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). A.) Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and 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) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) ("Pelegrini II"), the United States Court of Appeals for Veterans Claims ("Court") held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Element (4), the requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim, was eliminated by the Secretary. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection is awarded. In this case, service connection for a left knee disability and hypertension had already been established, and a portion of the current appeal arose from claims of entitlement to increased disability ratings. The appeal also stems from the Veteran's claim of entitlement to service connection for a left foot disorder. In a letter dated June 2009, prior to the initial adjudication of the claims, the Veteran was informed of how to substantiate a claim of entitlement to service connection, and was informed that he should provide evidence showing that the symptoms from his service-connected hypertension had increased in severity. This letter also advised him of what he should do and what VA would do to assist him in obtaining evidence, including the specific types of evidence, both lay and medical, that could be submitted in support of his claims. In addition, this letter also satisfied the requirements of Dingess/Hartman by advising the Veteran how VA assigns the disability rating and effective date elements of a claim. During his October 2012 hearing before the Board, the Veteran averred for the first time that his left foot disability was caused by his service-connected status-post left knee patella dislocation. Thereafter, a letter dated February 2013 provided the Veteran with notice of the information necessary to substantiate a service connection claim on a secondary basis (i.e., based on an additional disability that was caused or aggravated by a service-connected disability). The U.S. Court of Appeals for the Federal Circuit ("Federal Circuit") has held that any error in a VCAA notice should be presumed prejudicial. The claimant bears the burden of demonstrating such error. VA then bears the burden of rebutting the presumption by showing that the essential fairness of the adjudication has not been affected because, for example, actual knowledge by the claimant cured the notice defect, a reasonable person would have understood what was needed, or the benefits sought cannot be granted as a matter of law. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Here, although the Board observes the Veteran was provided with VCAA notice of how to substantiate a claim of entitlement to service connection on a secondary basis after the initial adjudication of the claim, the claim was subsequently readjudicated in a May 2013 Supplemental Statement of the Case ("SSOC"), which again informed him of the evidence needed to substantiate his claim. Moreover, the evidence shows that during his hearing before the Board, the Veteran made several statements demonstrating his knowledge and familiarity with the concept of secondary service connection and what was needed to establish his claim. Based on these facts, as well as the notice given, the Board finds that a reasonable person would have known what evidence was needed in order to establish entitlement to service connection on a secondary basis. Therefore, any failure in the content or timing of the notice is not prejudicial. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds. B.) Duty to Assist The Board concludes that VA's duty to assist has been satisfied. The claims file contains the Veteran's service and post-service treatment records, as well as VA examination reports dated June 2009, September 2009 and April 2013. Additionally, the claims file contains the Veteran's statements and testimony in support of his claims. The Veteran has not referenced any outstanding, available records that he wanted VA to obtain or that he felt were relevant to the claims that have not already been obtained and associated with the record. Review of the examination reports demonstrates that the VA examiners reviewed the complete evidence of record, obtained a history of symptomatology and treatment from the Veteran, performed comprehensive examinations, along with a review of diagnostic test results, and provided sound reasons and bases for their opinions. Accordingly, the Board concludes that these reports are adequate upon which to base decisions in this case. Further, as noted the Veteran was afforded a Travel Board hearing in October 2012. In this regard, the Board observes that in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge ("VLJ") who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the Board finds that the hearing was held in compliance with the provisions of Bryant. Further, a review of the record also reveals no assertion, by the Veteran or his service organization representative, that VA or the VLJ failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any other prejudice in the conduct of the Board hearing. Moreover, the Veteran's submissions and statements, as well as those of his representative, demonstrated actual knowledge of the elements and evidence necessary to substantiate the claims because the submissions and statements focused on the evidence and elements necessary to substantiate the claims. As such, the Board finds that the VLJ complied with the duties set forth in Bryant and the claim may be adjudicated based on the current record. Cf. Procopio v. Shinseki, No. 11-1253 (Vet. App. Oct. 16, 2012). In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above, finds that the development of the claims has been consistent with the provisions of the VCAA. The appellant has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to the VCAA notice. The purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his appealed claims. Accordingly, the Board will proceed to a decision on the merits. II. Analysis The Board has thoroughly reviewed all of the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Under 38 U.S.C.A. § 1154(a), VA is also required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. In Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the Federal Circuit held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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." (footnote omitted). However, the Court has held that "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). A. Entitlement to an initial compensable disability rating for status-post left knee patella dislocation prior to April 22, 2013, and to a disability rating in excess of 10 percent from April 22, 2013. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, and by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries, and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate Diagnostic Codes ("DC") identify the various disabilities and the criteria for specific ratings. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). The veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2012). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2009). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2012). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). With regard to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: less movement than normal; more movement than normal; weakened movement; excess fatigability; incoordination; impaired ability to execute skilled movements smoothly; and pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45 (2012). Painful, unstable, or malaligned joints, due to healed injury are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59 (2012). The Court has held that the Board must determine whether there is evidence of weakened movement, excess fatigability, incoordination, or functional loss due to pain on use or flare-ups when the joint in question is used repeatedly over a period of time. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995); see also Burton v. Shinseki, No. 09-2873 (U.S. Vet. App. Aug. 4, 2011) (the Court held that 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis). In DeLuca, the Court explained that, when the pertinent diagnostic criteria provide for a rating on the basis of loss of range of motion, determinations regarding functional losses are to be "'portray[ed]' (38 C.F.R. § 4.40 ) in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Id. at 206. The fact that the revised criteria include symptoms such as pain, stiffness, aching, etc., if present, means that evaluations based on pain alone are not appropriate, unless there is specific nerve root pain, for example, that could be evaluated under the neurologic sections of the rating schedule. See 68 Fed. Reg. 51,455 (Aug. 27, 2003). Limitation of motion of the knee is evaluated under 38 C.F.R. § 4.71, DCs 5260 and 5261. Under DC 5260, a 10 percent rating is warranted for flexion limited to 45 degrees, a 20 percent rating is warranted for flexion limited to 30 degrees, and a 30 percent rating is warranted for flexion limited to 15 degrees. Under DC 5261, a 10 percent rating is warranted for extension limited to 10 degrees, a 20 percent rating is warranted for extension limited to 15 degrees, a 30 percent rating is warranted for extension limited to 20 degrees, a 40 percent rating is warranted for extension limited to 30 degrees, and a 50 percent rating is warranted for extension limited to 45 degrees. For VA compensation purposes, normal flexion of the knee is to 140 degrees, and normal extension is to zero degrees. 38 C.F.R. § 4.71a, Plate II (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. Regulations provide that when a disability not specifically provided for in the rating schedule is encountered, it will be rated under a closely-related disease or injury, in which both the functions affected and the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2012). In this case, because there is no diagnostic code that specifically addresses the Veteran's status-post left knee patella dislocation, the disability has been evaluated by analogy to tenosynovitis under 38 C.F.R. § 4.71a, DC 5099-5024. Under DC 5024, the Veteran's disability is rated on limitation of motion of affected parts as degenerative arthritis. Under DC 5003, degenerative arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id; see also 38 C.F.R. § 4.59; Hicks v. Brown, 8 Vet. App. 417, 420 (1995) (citing Litchenfels v. Derwinski, 1 Vet. App. 484, 488 (1991)). A higher rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. The "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,'" as defined in 38 C.F.R. § 4.40 , before a higher rating may be assigned. This is because "pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss." Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Under Diagnostic Code 5257, which concerns "other impairments of" the knees, a 10 percent evaluation is assigned for slight recurrent subluxation or lateral instability of the knee; a 20 percent evaluation is assigned for moderate recurrent subluxation or lateral instability of the knee; and a 30 percent evaluation is assigned for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The VA General Counsel has issued a precedent opinion holding that a claimant who has arthritis and instability of the knee may be rated separately under DCs 5010-5003 and 5257, but cautions that any such separate rating must be based upon additional disabling symptomatology. VAOPGCPREC 23-97; 62 Fed. Reg. 63604 (1997). In September 2009, the Veteran was afforded a VA/QTC left knee examination, at which time, he reported that he experienced weakness, stiffness, swelling, giving way, lack of endurance, fatigability, pain and dislocation. Upon physical evaluation, the Veteran demonstrated an antalgic gait and normal posture. The left knee was negative for edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation, guarding of movement, locking pain, genu recurvatum, crepitus or ankylosis. The feet showed no evidence of abnormal weight-bearing or breakdown, callosities or unusual shoe wear. Range of motion was 0-140 degrees without evidence of pain. Repetitions were done without an additional degree of limitation by pain, fatigue, weakness, lack of endurance or incoordination. Stability tests are demonstrated findings within normal limits. X-rays also revealed normal findings. The diagnosis was status-post dislocation of the patella. The examiner noted that the subjective factor was the Veteran's history, and the objective factor was his antalgic gait. The only affect on his occupation of activities of daily living was left knee pain upon ambulation. Subsequent private treatment records show the Veteran continued to complain of continuous left knee pain; he also attended physical therapy. During an examination in January 2011, it was noted that he had no difficulty getting up and down from a seated position and moved around the examination room freely. Stance and gait were normal and the Veteran had full range of motion of the knees without medial or lateral instability or generalized laxity. There was exquisite medial joint line tenderness, but no effusion, erythema, or increased warmth. Distal strength, sensation and pulses were normal. X-rays revealed no acute fracture or dislocation, a small joint effusion, and minimal degenerative arthropathy of the patellofemoral compartment In February 2011, he was afforded an MRI, which showed some minimal degenerative changes, but no evidence of internal derangement. The left medial collateral ligament was intact and thickened, noted to possibly be the sequelae of a remote injury. There was no residual evidence of patellar dislocation. In March 2011, the Veteran was referred to physical therapy following a diagnosis of a left knee sprain. Extension was to -15 degrees, and flexion was to 138 degrees. Physical therapy notes from April through June 2011 show the same flexion, but flexion had decreased slightly to 134 degrees. The Veteran was noted to have responded well to aquatic therapy and reported being able to play with his 3-year-old son. He also complained of left knee pain with numbness when standing, walking and sitting, and also reported popping. He was treated with a knee brace, which he said helped. During a January 2012 evaluation, he reported frequent dislocation of the knee cap. On examination, there was tenderness on palpation at the medial joint line. Range of motion was 0-140 degrees (with 3 degrees of hyperextension on active extension) without evidence of instability. Motor strength was normal. The Veteran was referred for an additional physical therapy evaluation. Applying the pertinent legal criteria to the facts of this case, the Board concludes that, for the period June 2, 2009 to April 21, 2013, the competent and probative evidence of record is against the Veteran's claim of entitlement to an initial compensable disability rating for status-post left knee patella dislocation. The Board concludes that a higher disability rating is not warranted given that throughout the entire time period, range of motion studies reflect that the limitation of motion was noncompensable under the appropriate diagnostic codes. There is no evidence of flexion limited to 45 degrees, or extension limited to 10 degrees. Although there have been subjective complaints of pain on motion, there is no evidence of additional functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). There is no objective evidence of slight recurrent subluxation or lateral instability. On April 22, 2013, the Veteran was afforded another VA examination, at which time, he complained of left knee pain, swelling, weakness and instability (the latter two symptoms he added were present approximately 10 times per day). He said he wore a knee sleeve, used an ACE bandage and heat for swelling, and utilized a cane when arising from a sitting position. The physical evaluation revealed extension to zero degrees, and flexion to 125 degrees without objective evidence of pain. After repetitive testing, range of motion remained the same with evidence of pain on movement and less movement than normal. Joint stability testing revealed normal findings; x-rays demonstrated no significant joint space narrowing and essentially normal findings. The diagnosis was patellar dislocation. As for the period as of April 22, 2013, the Board has considered whether an increased rating in excess of 10 percent is warranted under either DCs 5260 or 5261 for limitation of flexion or extension. However, as the Veteran does not have flexion limited to 30 degrees, a higher rating is not warranted under DC 5260. Moreover, as the Veteran does not have extension limited to 15 degrees, a higher rating is not warranted under DC 5261. 38 C.F.R. § 4.71a. Furthermore, there was no evidence of excess fatigability with repetitive movement or additional limitation of movement to the extent necessary for an increased disability rating. The Board has also considered whether other diagnostic codes are applicable to the disorder. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (en banc) (the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."). The remaining diagnostic codes relating to knee disabilities include DC 5256 (ankylosis of the knee), DC 5257 (knee, other impairment of, recurrent subluxation or lateral instability), DC 5258 (cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint), DC 5259 (cartilage, semilunar, removal of, symptomatic), DC 5262 (impairment of the tibia and fibula), and DC 5263 (for genu recurvatum, acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated). However, despite the Veteran's subjective claims of instability, giving way and frequent dislocation, as there is no objective evidence of record to indicate that the Veteran has been found to have ankylosis of the knee; recurrent subluxation or lateral instability; dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint; symptomatic removal of the semilunar cartilage; impairment of the tibia and fibula; or acquired, traumatic genu recurvatum, these diagnostic codes are not applicable. In addition to the medical evidence, the Board has also carefully considered the Veteran's statements regarding the severity of his left knee disability. The Board acknowledges that the Veteran, in advancing this appeal, believes that his disability has been more severe than the currently-assigned disability ratings reflect. Medical evidence is generally required to address questions requiring medical expertise. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), determining the severity of a complex knee disorder falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). However, lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a) (2012); Washington v. Nicholson, 19 Vet. App. 363 (2005); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support the presence of a disability even where not corroborated by contemporaneous medical evidence). In this case, although the Veteran is clearly competent to report the knee symptoms he experiences, the competent medical evidence offering detailed, specific, specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. In denying the Veteran's claim for a higher disability evaluation, the Board has also considered whether he is entitled to a greater level of compensation on an extra-schedular basis. Ordinarily, the VA Schedule for Rating Disabilities will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon 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 that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. Id. In this case, however, as noted above, there has been no evidence presented during any portion of the period on appeal that the Veteran's left knee disability has presented such an exceptional disability picture that the available schedular evaluations are inadequate. Further, the current 10 percent disability rating assigned for the second portion of the period on appeal contemplates the pain that is often associated with residuals of left knee patella dislocation with arthropathy. The Board further observes that, even if the available schedular evaluation for the disability were inadequate (which it manifestly is not), the Veteran does not exhibit other related factors, such as those provided by the regulation as "governing norms." Here, the record does not show that the Veteran has required any hospitalization or inpatient treatment for his left knee disability during the course of this appeal. Accordingly, referral of this claim for extraschedular consideration is not indicated. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). B. Entitlement to a compensable disability rating for hypertension. The Veteran's hypertension is currently evaluated as noncompensable under 38 C.F.R. § 4.104, DC 7101. In every instance in which the Ratings Schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2012). Under DC 7101, a 10 percent disability rating requires diastolic pressure predominantly 100 or more, systolic pressure predominantly 160 or more, or that an individual with a history of diastolic pressure predominantly 100 or more requires continuous medication for control. A 20 percent disability rating requires diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. A 40 percent disability rating requires diastolic pressure predominantly 120 or more. A 60 percent disability rating require diastolic pressure predominantly 130 or more. Review of the medical evidence of record fails to demonstrate that the Veteran's diastolic pressure has been predominantly 100 or more, his systolic pressure has been predominantly 160 or more, or that he had required continuous medication for a history of diastolic pressure predominantly 100 or more. For example, the private treatment reports of record show that, during the period January 2007 to August 2008, the Veteran's blood pressure was measured on eight (8) occasions, with the following results: 132/79, 132/89, 133/84, 145/91, 123/65, 125/62, 142/76 and 142/89. In June 2009, the Veteran was afforded a VA/QTC hypertension examination, at which time, it was noted that he was on continuous, daily blood pressure medication. He complained of pounding headaches, dizziness, lightheadedness, and fatigue without any functional impairment. At the time of the evaluation, his blood pressure was measured as 140/90, 140/90 and 142/92. The examiner noted that the effects of the Veteran's hypertension on his occupational activities was the need to maintain doctor appointments and tight blood pressure control. The effect on his activities of daily living were the same, plus following a low salt and fat diet. During an April 2011 private annual examination, the Veteran reported that his blood pressure readings at home revealed findings in the range of approximately 150/90 since he began decreasing his exercise routine. During that examination, it was noted that his "blood pressure repeat improved but still above goal." The actual reading was not listed. He was advised to follow up with the provider if his readings were consistently above 130/80. In April 2013, the Veteran was afforded a second VA examination, at which time, his blood pressure readings were 141/79, 123/74 and 121/77. It was noted that he was still on continuous blood pressure medication. During the October 2012 hearing before the Board, the Veteran reported that he was taking Januvia, Lisinopril, Losartan and Metoprolol for hypertension. He also reported that, during the previous three to five years, he frequently had blood pressure readings of 145/96, 145/90 and 142/80. See Travel Board hearing transcript, p. 4. Based on a review of the complete evidence of record, the Board concludes that a compensable evaluation for hypertension under DC 7101 is not warranted. Rather, the medical evidence demonstrates that the Veteran's blood pressure readings throughout the period on appeal more closely approximate the criteria for the current noncompensable rating. Specifically, the Board notes that although the Veteran has been prescribed medication to control his hypertension, there is no indication that he ever had predominant diastolic readings of 100 or more, or predominant systolic readings of 160 or more. Rather, the evidence shows that, throughout the course of this appeal, the Veteran has never been shown to have a diastolic reading of 100 or more, or a systolic reading of 160 or more. For these reasons, the Board concludes that the Veteran's hypertension does not more nearly approximate the criteria for a compensable disability rating. The Board has also considered the potential application of 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath, supra. Again, however, the threshold determination is whether the disability picture presented in the record is adequately contemplated by the rating schedule. Thun, supra. In this case, there has been no evidence presented for the period on appeal to show that the Veteran's hypertension has been so unusual or exceptional in nature as to render the assigned schedular rating inadequate. There is no unusual clinical picture presented, nor is there any other factor which takes the disability outside the usual rating criteria. Accordingly, as the Board finds that any functional impairment due to the Veteran's hypertension is considered in the current schedular rating criteria, referral for assignment of an extra-schedular evaluation in this case is not in order. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). The Board concludes that the preponderance of the evidence is against the Veteran's claim for an initial compensable evaluation for hypertension. The "benefit-of-the-doubt" rule enunciated in 38 U.S.C.A. § 5107(b) is not for application, as there is not an approximate balance of evidence. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Staged rating are not for application. See Hart v. Mansfield, 21 Vet. App. 505 (2008). C. Entitlement to service connection for a left foot disability, to include as secondary to service-connected status-post left knee patella dislocation. In order to establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) the in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Federal Circuit has recently held that for purposes of 3.303(b), where the veteran asserts entitlement to a chronic condition, but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013), aff'g Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). (emphasis added). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by a showing of in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Service connection may also be granted on a presumptive basis for certain chronic disabilities, including arthritis, when manifested to a compensable degree of 10 percent or more within one (1) year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2012). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). The Court has construed this provision as entailing "any additional impairment of earning capacity resulting from an already service- connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition." Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Establishing service connection on a secondary basis essentially requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by, or (b) aggravated by a service-connected disability. Id.; see also Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection is also available for a preexisting condition provided it was aggravated during service beyond the course of its natural progression. 38 U.S.C.A. § 1153 (West 2002 & Supp. 2012); 38 C.F.R. § 3.306 (2012). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service. In order to rebut the presumption of aggravation, there must be clear and unmistakable evidence that the increase in severity was due to the natural progress of the disability. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Under VA regulations, every person employed in the active military, naval, or air service shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1137 (West 2002 & Supp. 2012). Only such conditions as are recorded in examination reports are considered as noted at enlistment. 38 C.F.R. § 3.304(b). A preexisting injury or disease will be considered to have been aggravated by active military service, where there is an increase in disability during such service, unless there is a finding that the increase in disability is due to the natural progress of the disease. However, aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all of the evidence of record. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Congenital or developmental defects are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9. VA General Counsel has, however, held, that service connection can be granted for congenital diseases which are aggravated by service. See VAOPGCPREC 82-90 (July 18, 1990) (a disease considered by medical authorities to be of familial (or hereditary) origin by its very nature preexist claimants' military service; however, service connection for congenital, developmental or familial diseases could be granted if manifestations of the disease in service constituted aggravation of the condition). A defect is a structural or inherent abnormality or condition, which is more or less stationary in nature. A disease may be defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. Id. Congenital or developmental "defects" automatically rebut the presumption of soundness and are therefore considered to have preexisted service. 38 C.F.R. §§ 3.303(c) , 4.9. However service connection is generally precluded by regulation for such "defects," because they are not "diseases" or "injuries" within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c) , 4.9, 4.127; Terry v. Principi, 340 F.3d 1378, 1383-84 (Fed. Cir. 2003); Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007). Thus, the presumption of soundness does not apply to congenital defects because such defects "are not diseases or injuries" within the meaning of 38 U.S.C.A. §§ 1110 and 1111. See 38 C.F.R. § 3.303(c) ; see also Quirin v. Shinseki, 22 Vet. App. 390, 394, 396, 397 (2009); Terry, 340 F.3d at 1385-86 (holding that the presumption of soundness does not apply to congenital defects); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that a non-disease or non-injury entity such as a congenital defect is "not the type of disease- or injury-related defect to which the presumption of soundness can apply"). Service connection is only possible for a congenital defect if there is evidence of additional disability due to aggravation during service of the congenital defect by superimposed disease or injury. See VAOPGCPREC 82-90; Monroe v. Brown, 4 Vet. App. 513, 514- 15 (1993); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); VAOPGCPREC 67-90; and VAOPGCPREC 11-99. The Veteran asserts that he developed left foot nerve pain and damage "over the course of years" due to constant running and standing. See VA Form 21-526 (application for benefits), June 2009. During his October 2012 hearing before the Board, he said that his podiatrist told him that he had a left foot disorder that had been caused or aggravated by his service-connected status-post left knee patella dislocation. See Board hearing transcript, p. 13. Review of the Veteran's service treatment records reveals no evidence of complaints of, treatment for, or a diagnosis of a left foot disorder. During his February 1994 service separation examination, findings for the lower extremities were within normal limits and the Veteran denied then having, or having had any foot trouble. The first evidence of record that the Veteran had any foot trouble was in August 2008, when he was seen by his private physician for complaints of left forefoot pain and a three-month-old sore. The radiology report showed findings of left foot Os peroneum, plantar fasciitis calcaneal spur, and mild degenerative changes at the interphalangeal joint of the great toe. The clinician diagnosed left metatarsalgia and advised the Veteran to consult with a podiatrist. There was no evidence of nerve damage, and neither the radiologist, nor the clinician ascribed the condition to the Veteran's military service. There are no further treatment reports of record for a foot disorder. In April 2013, the Veteran was afforded a VA compensation and pension examination for his claimed left foot disorder. Upon physical evaluation, there was tenderness to palpation at the ball of the foot in the interspace between the 3rd and 4th toes with movement of the 4th metatarsal head, in the interspace between the 4th and 5th toes, consistent with a neuroma. The rest of the foot was non-tender. Active range of motion in the toes and feet dorsal and plantar fasciitis flexion were within normal limits. X-rays revealed no evidence of significant pathology. The diagnoses were left great toe interphalangeal joint osteoarthritis, left foot Os peroneum, left foot neuroma and left foot calcaneal spur (developmental). However, the VA examiner opined that it was less likely than not that any of these conditions had caused or been aggravated by the Veteran's service-connected left knee disorder or active military service. The examiner opined that the Veteran's osteoarthritis resulted from articular cartilage failure induced by a complex interplay of genetic, biochemical and biomechanical factors with secondary components of inflammation. He noted that the process involves interactive degradation and repair processes of cartilage bone and synovium. He concluded that the condition was less likely than not caused by, a result of, or had been aggravated by the Veteran's status-post left knee patella dislocation because such a condition is not a recognized cause of osteoarthritis of the great toe. Regarding the Os peroneum, the examiner noted that this is an accessory bone in the mid-foot that is developmental. Therefore, he concluded that it was less likely as not caused or aggravated by the Veteran's service-connected status-post left knee patella dislocation. Regarding the Veteran's left foot neuroma, the examiner said the exact etiology of the condition had not been clearly identified or proven conclusively, but noted that various contributing factors had been postulated, including flatfoot (pes planus); anterior splay foot; high arch foot (pes cavus); equinus deformity; ill-fitting (tight or high-heeled) shoe gear; abnormal proximity of neighboring metatarsal heads; and associated forefoot deformities, including hallux abductus, bunion and hammer toes. Therefore, the examiner opined that it was less likely as not that the Veteran's neuroma was caused by, a result of, or had been aggravated by the Veteran's left knee disorder. He also opined it was less likely than not a result of service, as the diagnosis had been made many years after service. Finally, regarding the calcaneal spur, because the examiner found this to be a development disorder, he concluded that it was less likely than not that the Veteran's left knee disability had caused or aggravated the condition. Based on a review of the complete evidence of record, the Board concludes that the competent and probative evidence is against granting the Veteran's claim of entitlement to service connection for a left foot disorder, to include as secondary to the Veteran's service-connected status-post left knee patella dislocation. In this regard, as noted above, the Board has considered whether service connection is warranted either on a direct, presumptive or secondary basis. The Board notes that, whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). With regard to granting service connection on a direct basis, as noted above, there is no probative evidence in the service treatment records, to show that the Veteran was found to have a foot disorder at anytime during active military service. In addition, as no clinician or examiner have linked any of his current foot disorders to any direct incident of service, service connection on a direct basis is denied. There is no evidence that the Veteran sustained a superimposed injury during service which impacted any congenital foot problems. With regard to granting service connection on a presumptive condition, as noted above, the Veteran was diagnosed in 2008 with osteoarthritis of the left great toe. However, because there is no evidence that osteoarthritis was diagnosed within one year of the Veteran's separation from active duty service, service connection on a presumptive basis is not for application. Finally, with regard to granting service connection on a secondary basis, the Board has considered all of the available medical evidence of record, including the statements and testimony of the Veteran. However, after taking all of the evidence into consideration, the Board finds the most probative evidence to be the opinion from the April 2013 VA examiner, who, after thoroughly reviewing the evidence of record, including the Veteran's service and post-service treatment records, as well as the medical literature on the causes of the Veteran's various foot disorders, opined that it was less likely than not that any of the diagnosed conditions were related to service or a service-connected disability, to specifically include his status-post left knee patella dislocation. In arriving at this conclusion, the examiner provided a well-reasoned and fully-detailed report explaining the reasons and bases for his opinion. In addition to the medical evidence, the Board has also considered the statements of the Veteran as to the cause of his left foot disorders. In this regard, the Court has held that a claimant is competent to attest to factual matters of which he or she has first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, although the Veteran is competent to report what comes to him through his senses, there is no evidence that he has medical knowledge or training that would permit him either to diagnose, or determine the etiology of a complex disorder of the nerves, such as Morton's neuroma, or any other complex foot condition. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). As such, although the Board acknowledges the Veteran's belief that his current disorders are the result of a service-connected disorder, his statements in this regard are not deemed competent. Accordingly, the Board concludes that the most probative evidence of record is against the Veteran's claim for service connection for a left foot disorder, to include as secondary to his service-connected status-post left knee patella dislocation. In arriving at the decision to deny the claim, the Board has considered the applicability of the "benefit-of-the-doubt" rule. However, as there is not an approximate balance of evidence, that rule is not applicable in this case. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER For the period June 2, 2009 to April 21, 2013, an initial compensable disability rating for the Veteran's status-post left knee patella dislocation is denied. For the period beginning April 22, 2013, an initial evaluation in excess of 10 percent for status-post left knee patella dislocation is denied. Entitlement to a compensable disability rating for hypertension is denied. Entitlement to service connection for a left foot disorder, to include as secondary to status-post left knee patella dislocation, is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs