Citation Nr: 1323464 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 04-29 550 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a right elbow disability. 3. Entitlement to service connection for a low back disability, to include as secondary to service connected right and left knee disabilities. 4. Entitlement to service connection for a kidney disability, claimed as infections. 5. Entitlement to service connection for a psychiatric disorder, to include as secondary to service connected disabilities. 6. Entitlement to higher initial ratings for left knee limited motion in extension, rated 30 percent prior to September 5, 2012, and 40 percent thereafter. 7. Entitlement to higher initial ratings for left knee limited motion in flexion, rated 10 percent prior to March 12, 2004, and 20 percent thereafter. 8. Entitlement to a higher initial rating for the left elbow. 9. Entitlement to a total disability rating based on individual unemployability for any portion of the appeal period prior to March 12, 2004. REPRESENTATION Appellant represented by: Theodore C. Jarvi, Attorney at Law WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran performed active military service from June 1976 to February 1983. In June 1998, the RO denied entitlement to non-service-connected pension benefits. The Veteran submitted a timely notice of disagreement (hereinafter: NOD) and the RO issued a statement of the case (hereinafter: SOC). The Veteran did not submit a VA Form 9, Appeal to the Board of Veterans' Appeals, or other correspondence containing the necessary information and the RO closed that appeal. This matter arises to the Board of Veterans' Appeals (Board) from May 2001 and later rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The May 2001 rating decision, in pertinent part, denied service connection for the low back, the right elbow, and the right knee. Within the one-year appeal period, the Veteran requested reconsideration of that decision. Moreover, in October 2001, the Veteran's attorney expressed disagreement with the denial of service connection. The submissions of the Veteran and his attorney meet all requirements of an NOD. See Gallegos v Gober, 14 Vet. App. 50 (2000) (an NOD must (1) express disagreement; (2) be filed in writing; (3) be filed at the AOJ; (4) be filed within one year of the mailing date of the decision; and, (5) be filed by the claimant or authorized representative). This appeal also arises from an August 2002 rating decision that denied service connection for a kidney disorder, among other claimed disorders. In October 2002, the Veteran requested reconsideration of that rating decision. A January 2004 RO rating decision, in pertinent part, reconsidered the prior claims, continued to deny service connection for certain claimed disabilities, and granted service connection for the left elbow and assigned a 20 percent rating effective October 11, 2002. In January 2004, the Veteran requested that the RO reconsider that portion of the January 2004 rating decision that granted an effective date [for service connection for the left elbow]. In August 2004, the Veteran's attorney clearly submitted an NOD to the January 2004 rating decision, arguing specifically for an earlier effective date for service connection for the left elbow. In April 2005, the RO issued an SOC that granted an earlier effective date of May 29, 2001, for service connection for the left elbow. The Veteran timely perfected the appeal for an earlier effective date. In June 2008, the Board granted an earlier effective date of November 22, 2000, for service connection for the left elbow. Because the Board has adjudicated the issue of an earlier effective date for service connection for the left elbow, it need not be addressed further. In an August 2008-issued rating decision, the RO granted a 20 percent rating for that newly-created period of service connection for the left elbow. In April 2009, the Veteran submitted an NOD to the initial 20 percent rating. No SOC addressing the initial 20 percent rating for the left elbow has been issued and it is not clear that the Veteran has withdrawn his NOD. In accordance with 38 C.F.R. §§ 19.9, 19.26, 19.29, 19.30 (2012), unless the matter has been resolved by a grant of benefits or the NOD is withdrawn by appellant or his representative, the agency must prepare an SOC. Thus, a remand is necessary. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). A February 2004 decision again denied service connection for right knee and right elbow disabilities. The Veteran timely filed a new NOD that decision. A September 2005 decision denied service connection for a right hip and/or pelvis disability and denied service connection for a psychiatric disorder, claimed secondary to service connected disabilities. The Veteran also appealed that decision. An August 2008 rating decision granted service connection for the left knee and assigned separate, staged-ratings for left knee limited motion in extension and for limited motion in flexion. A single 10 percent rating was assigned for limited flexion effective March 21, 2001, through March 11, 2004. Effective March 12, 2004, a 30 percent rating was assigned for limited extension and a 20 percent rating was assigned for limited flexion. The Veteran appealed all the initial ratings for the left knee. In July 2012, the Veteran indicated that he did not desire a hearing concerning the appeal for higher left knee ratings. In November 2012, the RO granted a higher, 40 percent, schedular rating for left knee limited flexion effective from September 5, 2012. The Veteran has continued his appeal for higher left knee ratings for the entire appeal period. The August 2008 RO rating decision also granted an earlier effective date of November 22, 2000, for service connection and a 20 percent rating for chronic left elbow strain. In April 2009, the Veteran submitted an NOD to the 20 percent rating assigned effective November 22, 2000. It does not appear that he disagreed with the November 22, 2000, effective date. In June 2009, the RO granted service connection for residuals of fracture of the right hip and pelvis and assigned a single 10 percent schedular disability rating. The Veteran submitted an NOD with the initial ratings for the right hip, the right leg, and for the pelvis, but failed to submit a VA Form 9, Appeal to the Board of Veterans' Appeals, after the RO issued an SOC. The RO therefore administratively closed that appeal. The Veteran appealed a July 2009 RO rating decision that denied entitlement to TDIU. Since then, in a February 2012 RO rating decision, the RO did grant TDIU effective March 12, 2004, and the Veteran has not disagreed with that effective date. While the grant of TDIU appears to resolve the Veteran's appeal for such, the Board nevertheless has acquired jurisdiction over the TDIU issue by virtue of the Court's holding in Rice v. Shinseki, 22 Vet. App. 447, 453-455 (2009). In Rice, the Court held that where, as here, a claimant, or the record raises the question of unemployability due to the disability for which an increased rating is sought, then part of the increased rating claim is an implied claim for TDIU. Id. The Veteran has claimed that he cannot work due in part to his service-connected left knee disorder. Because the appeal period for the left knee rating begins on March 21, 2001, the appeal period for the implied TDIU claim also begins at that time. The Board has therefore added a TDIU claim for this early portion of the appeal period to page 1. Further development is needed to properly adjudicate the TDIU claim. In January 2004, the Veteran requested service connection for a testicular cystic disorder and for rectal pains. The claims files do not reflect what, if any, development of these claims has been undertaken. These are referred for adjudication. Entitlement to an initial schedular rating greater than 20 percent for the left elbow and entitlement to TDIU for any portion of the appeal period prior to March 12, 2004, are addressed in the Remand portion of the decision below and are remanded to the RO (private attorney representation). FINDINGS OF FACT 1. Competent medical evidence associates right knee degenerative joint disease with rigorous activities during active service. 2. Competent medical evidence associates right elbow degenerative joint disease and chronic right elbow strain with epicondylitis with rigorous activities during active service. 3. Competent medical evidence associates L4-5 and L5-S1 degenerative disc disease and right lower extremity radiculopathy with active military service. 4. Competent medical evidence of a kidney disease or other renal disorder has not been presented. 5. Medical evidence attributes aggravation of a depressive disorder to service-connected disabilities. 6. For the entire appeal period, the left knee has been manifested by limited flexion to no worse than 85 degrees; additional functional impairment due to flare-ups of pain, incoordination, swelling, disturbance of locomotion, interference with sitting, standing, and weight-bearing, and muscle weakness in flexion and extension was found. 7. For the entire appeal period, the left knee has been manifested by limited extension to no worse than 30 degrees; additional functional impairment was found. 8. The Veteran has both arthritis and instability of the service-connected left knee joint. 9. For the entire appeal period left knee instability has been no worse than "moderate" in severity. CONCLUSIONS OF LAW 1. Right knee degenerative joint disease was incurred in active military service. 38 U.S.C.A. §§ 1131, 1137, 5107 (West 2002); § 38 C.F.R. §§ 3.102, 3.303 (2012). 2. Right elbow degenerative joint disease and chronic right elbow strain with epicondylitis were incurred in active military service. 38 U.S.C.A. §§ 1131, 1137, 5107 (West 2002); § 38 C.F.R. §§ 3.102, 3.303 (2012). 3. L4-5 and L5-S1 degenerative disc disease with right radiculopathy was incurred in active military service. 38 U.S.C.A. §§ 1131, 1137, 5107 (West 2002); § 38 C.F.R. §§ 3.102, 3.303 (2012). 4. A kidney disease or disorder or other renal disorder was not incurred in active military service, nor may it be presumed to have been incurred in active military service. 38 U.S.C.A. §§ 1101, 1112, 1131, 1137, 5107 (West 2002); § 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 5. The criteria for secondary service connection for depressive disorder are met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.310 (2012). 6. Throughout the appeal period, the criteria of a 20 percent schedular rating, and no greater, have been met for left knee limitation of motion in flexion. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2012). 7. Throughout the appeal period, the criteria of a 40 percent schedular rating, and no greater, have been met for left knee limitation of motion in extension. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261 (2012). 8. Throughout the appeal period, the criteria of a separate 20 percent schedular rating have been met for left knee instability. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has remanded the case for development. When the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this case, the RO has reasonably complied with all remand orders. VA must notify and assist claimants in substantiating claims for benefits. 38 U.S.C.A. § 5103A (West 2002); 38 U.S.C.A. §§ 5102, 5103 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant and his attorney of any information and any medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA must also inform the claimant of any information and evidence not of record that VA will seek to provide and that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Regarding the claim for a higher initial rating for the left knee, an NOD with the initial rating does not trigger additional notice obligations under 38 U.S.C.A. § 5103 (a). See 38 C.F.R. § 3.159 (b) (3) (2012). Rather, the claimant's appeal of an initial rating triggers VA's duty to develop that claim, as set forth at 38 U.S.C.A. §§ 5104, 7105; 38 C.F.R. § 3.103. Under these, VA is required to advise the claimant of what evidence is necessary to obtain the maximum benefit allowed by the evidence and the law. This has been accomplished in an SOC. The SOC provided the claimant with the relevant rating criteria for disabilities of the spine, as listed at various diagnostic codes. The claimant was informed of the evidence needed to achieve the next-higher schedular rating, and also to obtain even higher ratings for a low back disability. Thus, VA's duties under 38 U.S.C.A. §§ 5104 and 7105 have been satisfied. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for service-connection, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, although the original notice letters supplied in December 2004 and later did not address pertinent rating criteria or effective date provisions, such error was harmless given that VA's duty to notify was satisfied after the initial decision by way of letters sent to the claimant on March 20, 2006, and later. The letters informed the claimant of what evidence was required to substantiate the claims and of the claimant's and VA's respective duties for obtaining evidence. Although the notice letters was/were not sent before the initial decision, this timing error is not unfairly prejudicial to the claimant because the actions taken by VA after providing notice cured the timing error. The claimant has been afforded opportunity to participate in his claim and has been allowed time to respond. VA has re-adjudicated the case by way of rating decisions and SSOCs issue after notice was provided. For these reasons, it is not unfairly prejudicial to the claimant for the Board to adjudicate the claim. VA also has a duty to assist the claimant in the development of the claims. This duty includes assisting the claimant in obtaining service medical records and pertinent treatment records and providing examinations when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All necessary development has been accomplished and adjudication may proceed without unfair prejudice to the claimant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has obtained all available VA and private clinical records identified. The claimant was provided an opportunity to set forth his contentions during a hearing before the undersigned Veterans Law Judge. The claimant was afforded several VA medical examinations. These VA examination reports contain sufficient details and are adequate for rating purposes. 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (where VA undertakes to provide an examination (even where VA is not statutorily obligated to provide one) the Board erred in failing to ensure that the examination was adequate or to otherwise notify the Veteran why it would not provide the promised examination). Neither the claimant nor his attorney has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the claimant is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). Service Connection Service connection will be awarded for disability resulting from injury or disease incurred in or aggravated by active service (wartime or peacetime). 38 U.S.C.A. §§ 1110; 1131 (West 2002), 38 C.F.R. § 3.303(a) (2012). Service connection requires competent evidence showing: (1) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; (2) medical evidence of current disability; and (3) medical evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). In Caluza, the Court also stressed that § 3.102 states, "The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident arose under combat, or similarly stressful conditions [emphasis added], and is consistent with the probable results of such known hardships." Caluza, 7 Vet. App. at 509. Each disabling condition shown by service medical records, or for which the Veteran seeks service connection, must be considered on the basis of the places, types, and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence. 38 C.F.R. § 3.303(a). "Direct" service connection may be granted for any disease not diagnosed initially until after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service connection for certain chronic diseases, such as arthritis, nephritis, or psychoses, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculosis disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013) ("The clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases."). Where a chronic disease under § 3.309(a) is "shown as such in service" ("meaning clearly diagnosed beyond legitimate question" (Id), or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In cases where a chronic disease is "shown as such in service", the Veteran is "relieved of the requirement to show a causal relationship between the condition in service and the condition for which service-connected disability compensation is sought." Walker, 708 F.3d at 1336. Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time. In other words, "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Id. Once the evidence has been assembled, the Board assesses the credibility and weight to be given to the evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) and cases cited therein. When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that a Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. According to 38 U.S.C.A. § 1154(a), the Secretary must consider the places, types, and circumstances of the Veteran's service, his unit's history, his service medical records, and all pertinent lay and medical evidence in the case. More favorable consideration is afforded combat Veterans under 38 U.S.C.A. § 1154(b), but, because the Veteran was not in combat, he will not be afforded this consideration. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. 38 C.F.R. § 3.310 was amended effective October 10, 2006. The amendment places a burden on the Veteran to establish a pre-aggravation baseline level of disability for the nonservice-connected disability before an award of service connection may be made. Because the claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, as that version favors the Veteran. Right Knee Degenerative Joint Disease The Veteran argues that he injured the right knee when he fell from a horse during active service. He requests service connection. The Service Treatment Reports (STRs) reflect that the right knee was sound at entry into active military service. The STRs further reflect that the Veteran incurred a left knee injury in September 1977 while playing football. A November 1980 STR reflects that while stationed at Fort Huachuca, Arizona, a horse fell against him, injuring the right hip. An X-ray was negative for fracture. The right thigh was swollen and tender for a time, due to a contusion. In December 1980, the Veteran complained of increased right hip pains and decreased range of motion, but the right knee was not mentioned. In January 1981, the Veteran complained of continued upper right leg pains. No neurologic deficit was found. The knees were noted to be stable. The Veteran was examined for separation in September 1982. All systems were checked as being normal. He completed a medical history questionnaire, checking "yes" to a history of broken bones, arthritis, rheumatism, or bursitis, among others. The examiner made no comment concerning these. The Veteran submitted a claim for VA benefits in December 1993. He requested non-service-connected pension, but not service-connection. He reported nerve damage to the "...right foot and whole right leg." A Social Security Administration (SSA) decision dated in June 1995 reflects that the Veteran had become disabled from employment on July 27, 1993, due to an industrial-related herniated disc at L5-S1. Post-service private treatment records reflect a right knee contusion and sprain in June 1998, due to an auto accident. A June 1998 magnetic resonance imaging study (MRI) from Sierra Vista Community Hospital reflects that there was blunt trauma to the right knee four years earlier, with history of joint pain. The MRI showed right meniscus horn degeneration. An April 1999 private report by R. Osborne, M.D., reflects right knee swelling attributed to altered gait, secondary to back pain. A March 2001 VA orthopedic compensation examination report reflects that the examiner noted discharge from active service in 1983, with follow-on employment in construction until an industrial accident in 1993. The Veteran had not worked since 1993. He reported that he injured the right knee playing football during active service. Both knees had positive McMurray signs, negative Lachman's signs, limitation of motion in extension and flexion, and possible fluid build-up. A positive McMurray's sign/test is a cartilage click during knee manipulation and indicates meniscal injury, Dorland's Illustrated Medical Dictionary 1525, 1679 (28th ed. 1994). A Lachman's test is an anterior drawer test for serious knee injury performed at 20 degrees of flexion, Dorland's Illustrated Medical Dictionary 1677 (28th ed. 1994)). A May 2001 VA out-patient treatment report notes that X-rays showed degenerative arthritis of both knees, worse on the right, with bipartite patella on the right. In May 2001, Dr. Osborne linked current bilateral degenerative joint disease of the knees with a back injury that caused limping. Dr. Osborne states that the Veteran's antalgic gait "...is manifesting itself in his degenerative disease of his knees." Mentioning that medical literature supported this theory, the physician stated, "I clearly believe this is the picture." In September 2002, M. Gray, M.D., linked the current right knee disorder to active military service, apparently based on the Veteran's account of in-service right knee trauma. A January 2004 VA compensation examination report reflects that the right knee diagnosis was mild or moderate degenerative joint disease and a history of gout. The physician dissociated this from active service on the basis that the STRs do not show any right knee injury or complaint. In January 2005, two service comrades recalled the Veteran's painful back and legs during active service. In July 2005, private physician, B. Stojic, M.D., reviewed and recited a comprehensive medical history, including the in-service history of claimed knee disorders. Dr. Stojic examined the Veteran and offered diagnoses, which include osteoarthritis of both knees. With respect to etiology, Dr. Stojic noted that the Veteran alleged multiple strains and sprains to both knees playing football during active service, plus a right knee injury in 1980 when a horse fell on him, plus frequent knee insults while climbing poles in Korea. The physician pointed out that the STRs do not reflect a right knee injury, but the May 1998 auto accident and right knee injury are well-documented. In support of the Veteran's service connection claim, the doctor noted that an MRI shortly after the May 1998 right knee injury showed chronic changes, rather than acute changes, which, "... could not be related to the motor vehicle accident." The physician noted that there is no other indication of post service injury to the right knee. The physician disagreed with Dr. Osborne's opinion that attributes the right knee disorder to a gait disturbance. The rationale for this dissent is that, rather than gait disturbances, the culprit or culprits are various activities during active service (cable operator, pole-climbing, working on uneven ground, and competitive football). Dr. Stojic concluded that the current right knee disability "originated in the service." In April 2006, the Veteran testified before an RO hearing officer that he served at Fort Huachuca, Arizona, as a telephone lineman and also was assigned duty with an exhibition horse-cavalry troop wherein he rode horses in parades. He testified that he fell from horses several times. On one occasion, he passed out after the horse fell onto him. Later, he had severe pain in his right side, from the ankle to the back. He also testified that he played football at Fort Huachuca and incurred several injuries playing football. In May 2006, the Veteran's former spouse submitted a letter reflecting that she recalled a November 1980 injury to the Veteran's right leg that was related to riding a horse. In August 2007, private physician, B. Walsh, D. O., reviewed the medical history and noted having treated the Veteran at VA for a number of years and more recently having been the Veteran's private treating physician. Citing to a rheumatology textbook, the physician noted that football and horse-riding injuries during active service are the more-likely causes of bilateral knee osteoarthritis. The physician also reasoned that a May 1998 post-service injury was not the cause of osteoarthritis of the right knee, but likely did aggravate an existing condition. Lay witnesses corroborated the Veteran's long history of right knee complaints at various times. In January 2008, the Veteran testified before the undersigned Veterans Law Judge that he rode horses and played football as part of his military duties at Fort Huachuca. He testified concerning the fact surrounding the right knee disability and how it is related to trauma during active service. In June 2008, the Board granted service connection for the left knee. While it is true that the STRs do not document a right knee injury, the evidence does reflect rigorous athletic-like activity during active service. The medical evidence is favorable in that three private physicians (Drs. Gray, Stojic, and Walsh) felt that right knee degenerative joint disease began during active service, while Dr. Osborne concluded that a low back condition caused a gait disturbance that caused or aggravated the right knee. Because service connection for this low back condition will be granted, even Dr. Osborne's opinion is favorable. Also significant here is that in January 2004, a VA physician controverted these favorable nexus opinions on the basis that the STRs do not reflect a right knee injury or complaint. The above-mentioned medical opinions are persuasive, as they are based on accurate facts and are supported by a rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (a medical opinion that contains only data and conclusions is accorded no weight); also see Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value). One VA physician has dissociated the right knee from active service, based on an absence of documentation in the STRs; however, the physician did not discuss why the Veteran's claims of right knee trauma during active service could not be relied upon, nor did the physician address whether a gait disturbance could have caused or contributed to the right knee degenerative joint disease. Because of these shortcomings, the sole negative nexus opinion is diminished in persuasive value. The Board must address the competency, credibility, and probative value of all evidence, including lay evidence. 38 U.S.C.A. § 7104(d) (1) (West 2002); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The lay evidence of record is competent with respect to observance of symptoms readily observable and it is credible, as there is no indication of lack of veracity. Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005). However, the determination of an issue involving a question of medical expertise requires further analysis of the Veteran's competency. 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay diagnosis is competent if: (1) lay person is competent to identify the medical condition; (2) lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony of symptoms at the time supports a later diagnosis by a medical professional). In this case, because lay testimony of symptoms and other lay evidence of symptoms support a diagnosis by a medical professional, the lay evidence must be accorded weight in this matter. After considering all the evidence of record, including the testimony, the Board finds that the evidence favors the claim. Service connection for right knee degenerative joint disease must therefore be granted. Right Elbow Disability The Veteran's STRs reflect that the right elbow was sound at entry. While not directly related to this claim, an April 1980 STR notes a left elbow injury when playing football. The assessment was questionable sprain of the left elbow. The Veteran was examined for separation in September 1982. All systems were checked-off as being normal. The Veteran completed a medical history questionnaire, checking "yes" to a history of arthritis, rheumatism, or bursitis, and painful or trick shoulder or elbow, among others. The examiner made no comment concerning these check-marks. A March 2001 VA orthopedic compensation examination report reflects that the Veteran hyper-extended the right elbow, circa 1978 to circa 1980, while serving in Korea. The right elbow currently exhibited limitation of motion. The examiner offered a diagnosis of status post right elbow injury with permanent loss of some flexion and extension. It is unclear whether the examiner meant to associate this diagnosis with the reported in-service injury. In pertinent part of a May 2001 rating decision, the RO denied service connection for a right elbow injury. In May and July 2001, the Veteran requested reconsideration of the May 2001 rating decision. In pertinent part of an August 2002 rating decision, the RO again denied service connection for the right elbow. In October 2002, the Veteran requested reconsideration of that rating decision. In January 2004, the RO granted service connection for the left elbow, but deferred a decision concerning service connection for the right elbow, pending an examination. Later in January 2004, VA examined the right elbow. After X-rays were studied, the final diagnosis was degenerative joint disease. The examiner dissociated the right elbow disability from active service on the basis of no documented right elbow injury during active service. In February 2004, the RO denied service connection for the right elbow on the basis of no link to active service. The Veteran submitted a timely NOD. In January 2005, a service comrade recalled the Veteran's complaints of right and left elbow pains. In July 2005, Dr. Stojic examined the Veteran and offered diagnoses, which include chronic bilateral elbow strains with epicondylitis. Concerning the right elbow, Dr. Stojic reviewed the Veteran's reports of several right elbow injuries during active service. The doctor explained that soft tissue injuries and re-injury often yield a significant chronic problem, as is the case with this Veteran. Dr. Stojic reported, "In the absence of any subsequent trauma following the discharge from service, I would have to conclude that the patient's right elbow more than likely is a service-connected condition." In April 2006, the Veteran testified before an RO hearing officer that he served at Fort Huachuca, Arizona, as a telephone lineman and also was assigned duty with an exhibition horse-mounted Army cavalry troop wherein he rode horses in parades. He testified that he fell from horses several times. On one occasion, he passed out after the horse fell onto him. Later, he had severe pain in his right side, from ankle to the back. He also testified that he played rigorously competitive football at Fort Huachuca and incurred several injuries playing football. In August 2007, private physician, B. Walsh, D. O. reviewed the medical history and noted having been the Veteran's treating VA physician for a number of years and more recently having been the Veteran's private treating physician. Citing a September 20, 1977-dated STR that documents a right wrist injury, Dr. Walsh attributed a right elbow disorder to playing football during active service. In January 2008, the Veteran testified before the undersigned Veterans Law Judge concerning the fact surrounding the origin of the claimed disability and how it is related to trauma during active service. The Veteran underwent additional orthopedic compensation examinations in September 2010 and September 2012. The right elbow was not addressed in these reports. In this case, the current diagnosis for the right elbow, as supplied by VA, is degenerative joint disease. The diagnosis, as supplied by Dr. Stojic, is chronic elbow strain with epicondylitis. Two private physicians have offered favorable nexus opinions. The opinions are supported by cogent rationale and appear to be based on correct facts. They must therefore be accorded significant weight in this matter. Nieves-Rodriguez, 22 Vet. App. at 304; Reonal, 5 Vet. App. at 461. Likewise, because the lay testimony supports a later diagnosis by a medical professional, it too must be accorded weight. Jandreau v. Nicholson, 492 F.3d at 1377. After considering all the evidence of record, including the testimony, the Board finds that the evidence favors the claim. Service connection for right elbow degenerative joint disease and chronic right elbow strain with epicondylitis must therefore be granted. Lumbar Spine Disability The STRs reflect that the spine was normal at entry into active military service. In September 1979, continuous back pain was reported. The assessment was non-specific urethritis. A November 1980 STR reflects that while stationed at Fort Huachuca, Arizona, a horse fell against him, injuring the right hip. A December 1981 X-ray request notes a complaint of painful hip and back. The X-ray was normal. The Veteran was examined for separation in September 1982. All systems were checked as being normal. The Veteran completed a medical history questionnaire, checking "yes" to a history of arthritis, rheumatism, or bursitis, and history of recurrent back pain, among others. The examiner made no comment concerning these. The Veteran submitted a claim for non-service-connected pension in December 1993. He reported bulging vertebral discs. He again requested pension in April 1998 and reported herniated discs. He submitted a November 1997 private medical report that reflects an L5-S1 herniated disc. An SSA decision dated in June 1995 reflects that the Veteran had become disabled from employment on July 27, 1993, due to an industrial-related back injury with herniated disc at L5-S1. In November 1997, Dr. B. Geisser, M.D., wrote to Dr. Gray and reported that the Veteran had asked for an opinion addressing the etiology of his back disability. He had given a history of low back pain beginning in June 1993 when he lifted heavy bags of cement. The next morning he awoke to an episode of prostrating low back pain. A subsequent MRI showed a herniated disc. Dr. Geisser made treatment recommendations, but offered no etiology opinion. A January 2000 private X-ray report notes a normal lumbar spine. A March 2001 VA orthopedic compensation examination report reflects that the examiner noted discharge from active service in 1983, with follow-on employment in construction until an industrial accident in 1993. The Veteran had not worked since 1993. He reported that he injured his back climbing poles during active service and later repeated the back injury lifting heavy objects. The lower back was tender with limitation of motion and a positive straight leg raising test on the right. The examiner offered a diagnosis of herniated nucleus pulposis at L5-S1 with right radiculopathy, pain, diminished range of motion, moderately severe weakness, and fatigue. It is unclear whether the examiner meant to associate these diagnoses with in-service injuries. A May 2001 VA out-patient treatment reports note that an MRI showed lumbar degenerative disc disease. In May 2001, Dr. Osborne stated: I have reviewed his military records and there are subtle suggestions by the examiners on 10 and 12 September 1979. Review of those examinations does suggest an onset of back pain. I am uncertain as to the incident that created this situation. However, the examination performed was quite cursory and may have been the initial presentation of degenerating discs and facets." Dr. Osborne then mentioned that a man of this height and weight is predisposed to a degenerative process. In pertinent part of a May 2001 rating decision, the RO denied service connection for a herniated nucleus pulposis at L5-S1. In May and July 2001, the Veteran requested reconsideration of the May 2001 rating decision. In October 2001, the Veteran's attorney wrote a letter expressing disagreement with the denial of service connection for the back disorder. In pertinent part of an August 2002 rating decision, the RO again denied service connection for a lower back disorder. In October 2002, the Veteran requested reconsideration of that rating decision. A June 2003 VA compensation examination report reflects that the examiner offered an etiology opinion that discounts any in-service back injury in favor of a post-service 1993 back injury. The physician noted that the horse-related incident in 1980 did not appear to result in back pain. The rationale was that radiculopathy first appeared just after the 1993 injury, which clearly indicated to the examiner that there was no prior back disorder. The examiner found the current low back disorder unrelated to active military service. In January 2004, the RO again denied service connection for a herniated disc at L5-S1. The Veteran immediately requested reconsideration of that decision and later appealed that decision. In January 2005, two service comrades recalled the Veteran's painful back during active service. In July 2005, Dr. Stojic reviewed and recited a comprehensive medical history of the back disorder. Dr. Stojic examined the Veteran and offered a diagnosis of lumbar intervertebral disc syndrome. Dr. Stojic attributed lumbar intervertebral disc syndrome to multi-factorial etiology. The doctor explained that the lower back disability began with in-service injury, but a 1993 post-service injury significantly contributed to a worsening of the low back disability. The physician explained that it is difficult to separate, or apportion, the effects of the later back injury from the earlier. In September 2005, a service comrade corroborated the Veteran's report of back pains during active service. In April 2006, the Veteran testified before an RO hearing officer that he served as a telephone lineman and also was assigned duty with an exhibition horse-cavalry troop wherein he rode horses in parades. He testified that he fell from horses several times. On one occasion, he passed out after the horse fell onto him. Later, he had severe pain in his right side, from ankle to the back. He also testified that he played football at Fort Huachuca and incurred several injuries playing football. In May 2006, the Veteran's former spouse submitted a letter reflecting that she recalled a November 1980 injury to the Veteran's back, related to riding a horse. In August 2007, Dr. Walsh reviewed the medical history and noted that the Veteran had football and horseback-riding injuries during active service. Dr. Walsh concluded that an in-service injury, wherein a horse fell onto the Veteran, is the likely cause of the current low back disability. In January 2008, the Veteran testified before the undersigned Veterans Law Judge that he rode horses and played football as part of his assigned military duties at Fort Huachuca. He testified concerning the fact surrounding the back disability and how it is related to trauma during active service. He testified that that after one injury, he had blood in his urine and had back and kidney pains. A November 2008 VA genitourinary compensation examination report reflects that VA asked the examining physician to address service connection for a back disability, among others. After reviewing the pertinent medical history and examining the Veteran, the physician found it impossible to separate the lumbar spine from the right hip/pelvis condition. The physician offered a diagnosis of L4-5 and L5-S1 degenerative disc disease with right L5 radiculopathy. The physician noted that a 1993 post-service injury provided a likely etiology for the lumbar spine; however, an earlier in-service injury was also a plausible origin of the disability. Further separation of the residuals of either possible source would be too speculative, according to the physician. The Veteran underwent additional orthopedic compensation examinations in September 2010 and September 2012. These examination reports do not address the etiology of back pains. From the facts above, it is clear that there is both favorable and unfavorable medical nexus evidence. On the favorable side are Dr. Osborne's May 2001 opinion, Dr. Stojic's July 2005 opinion, Dr. Walsh's August 2007 opinion, and, possibly, a VA physician's November 2008 opinion. On the unfavorable side is the June 2003 VA medical opinion. The rationale behind this unfavorable opinion is that no back pain appeared during active service, whereas, the post-service accident in 1993 produced back pain with radiculopathy. The unfavorable opinion of June 2003 is based on a factual inaccuracy. While the physician stated that no back pain is shown during active service, in fact, the STRs document a complaint of and treatment for back pain after the 1980 horse-related incident. Moreover, during his separation examination, the Veteran reported recurring back pains. Because of these factual inaccuracies, the negative opinion becomes somewhat less persuasive. Reonal, 5 Vet. App. at 461. On the other hand, the favorable medical nexus opinions appear to be based on correct facts and are supported by a rationale. Great weight must therefore be accorded these opinions. Because the lay testimony supports a later diagnosis by a medical professional, it too must be accorded weight. Jandreau v. Nicholson, 492 F.3d at 1377. After considering all the evidence of record, including the testimony, the Board finds that the evidence favors the claim. Service connection for L4-5 and L5-S1 degenerative disc disease with right radiculopathy must therefore be granted. Kidney Disorder The STRs reflect that in September 1977, the Veteran received treatment for non-specific urethritis. The impression was rule-out gonorrhea, non-specific urethritis, and prostatitis, but laboratory results suggested gonorrhea. Urethral discharge returned in April 1978. A post-gonorrheal infection was treated in July 1978. Non-specific urethritis was assessed again in August 1978. An intermittent urethral burning was treated in December 1978. In September 1979, the assessment was non-specific urethritis. Non-specific urethritis was again treated in April 1981. The Veteran was examined for separation in September 1982. All systems were checked as being normal. In pertinent part of an August 2002 rating decision, the RO denied service connection for a kidney disorder. In October 2002, the Veteran requested reconsideration of that rating decision. A June 2003 VA compensation examination report reflects that a renal ultrasound showed no kidney disorder, except a possible stone in the left kidney. Serial urethritis and a bruised kidney or kidneys in service were noted. In January 2004, the RO denied service connection for the kidneys. The Veteran appealed. In his August 2004 NOD, he argued that the kidneys had been examined during a quiescent period and must therefore be re-examined during an active stage of kidney disease. In January 2008, the Veteran testified before the undersigned Veterans Law Judge that he rode horses and played football as part of his assigned military duties at Fort Huachuca. He testified that that he had blood in his urine after one injury, with back and kidney pains. A November 2008 VA genitourinary compensation examination report reflects that VA asked the examining physician to address service connection for a kidney disability, among others. The Veteran reported that since active service, he has noticed blood-tinged urine every two or three months. He also reported that he periodically received medication for his kidneys, but was unsure whether he had received any this year. After reviewing the pertinent medical history of these claims and examining the Veteran, the physician found no current kidney disorder, either acute or chronic. The Veteran underwent additional compensation examinations in September 2010 and September 2012. These do not address a kidney disorder. In this case, no medical evidence of a kidney-related disorder has been presented. The Court has specifically disallowed service connection where there is no present disability: "[c]ongress specifically limits entitlement for service connected disease or injury to cases where such incidents have resulted in a disability. . . . In the absence of proof of a present disability there can be no valid claim [for service connection]." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Although the Veteran seeks service connection for a kidney disorder, he is not competent to provide evidence of such. While he can competently report such symptoms as back and flank pains and blood-tinged urine, these do not compel the conclusion that he has nephritis or other kidney disease or disorder. Because his testimony does not support a later diagnosis, it cannot be afforded any weight in the matter. Jandreau, 492 F.3d at 1377. After considering all the evidence of record, including the testimony, the Board finds that the preponderance of it is against the claim. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, 1 Vet. App. at 53. The claim for service connection for a kidney disorder is therefore denied. Psychiatric Disorder The Veteran claims that a psychiatric disorder either began during active service or was caused or aggravated by service-connected disabilities. His STRs reflect that a somatic dysfunction (physical complaints with no adequate physical explanation) was found in September 1979. A March 1981 STR notes emergency room treatment for suicidal ideation due to marital and financial problems. The diagnosis was depression, reaction type. The Veteran was admitted for observation for mental dysfunction. A brief diagnostic report states, "Observation, no mental illness found, with marital dysfunction." He was returned to full duty after a one-day hospitalization. A September 1982 report notes that the Veteran was found to be psychiatrically normal and competent to understand and participate in board proceedings. The Veteran was examined for separation in September 1982. He was found to be psychiatrically normal; however he completed a medical history questionnaire, checking "yes" to a history of depression or excessive worry. The examiner made no comment concerning this complaint. A July 2004 VA referral psychological evaluation contains an Axis I diagnosis of dysthymic disorder, chronic, severe. While the clinical psychologist stated that this dysthymic disorder had lasted many years, no mention of a link to military service was made. A December 2004 VA mental disorders compensation examination report reflects an Axis I diagnosis of, "Depressive disorder exacerbated by his service-connected physical problems." The VA clinical psychologist further explained how the Veteran's depression symptoms are "most likely" exacerbated by service-connected injuries. In September 2005, the RO denied service connection for a dysthymic disorder. The Veteran promptly submitted an NOD. In January 2008, the Veteran testified before the undersigned Veterans Law Judge concerning the origin of the claimed disability and how it is related to trauma during active service. The Board remanded the claim in June 2008, although no specific development was requested concerning the psychiatric claim. As mentioned above, the December 2004 VA mental disorders compensation examination report offers a clear diagnosis and nexus to service-connected disabilities. "Depressive disorder exacerbated by his service-connected physical problems" appears to satisfy the necessary elements for secondary service connection. The VA clinical psychologist further explained that the Veteran's depression symptoms are "most likely" exacerbated by service-connected injuries. No medical professional has controverted this opinion, although earlier another examiner offered a diagnosis of dysthymic disorder, rather than depressive disorder. Because the mental diagnosis and nexus opinion are based on correct facts and supported by a rationale, they must be accorded significant weight in this matter. Nieves-Rodriguez, 22 Vet. App. at 304; Reonal, 5 Vet. App. at 461. After considering all the evidence of record, including the testimony, the Board finds that the evidence favors the claim. Service connection for depressive disorder must therefore be granted. Higher Initial Rating for the Left Knee Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). Diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. The entire medical history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. 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. 38 C.F.R. § 4.7. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations, VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, or incoordination, including during flare-ups. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). 38 C.F.R. § 4.59 addresses painful motion. A portion of § 4.59 states: The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. When § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. See Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (the Board is required to consider all issues raised either by the claimant or reasonably by the record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991) (applicable provisions of law and regulation should be addressed when they are made "potentially applicable through the assertions and issues raised in the record"). Burton v. Shinseki, 25 Vet. App. 1 (2011). In Fenderson v. West, 12 Vet. App. 119, 126-7 (1999), the Court distinguished a claim for an increased rating from that of a claim arising from disagreement with the initial rating assigned after service connection was established. During the appeal period, the left knee has been rated 10 percent, then 20 percent disabling under Diagnostic Code 5260, limited motion in flexion. Under that code, limitation of flexion of the leg at the knee (normal being to approximately 140 degrees) will be rated as follows: Flexion limited to 15 degrees is 30 percent. Flexion limited to 30 degrees is 20 percent. Flexion limited to 45 degrees is 10 percent. Flexion greater than 45 degrees is not compensable. 38 C.F.R. §§ 4.71 Plate II, 4.71a, Diagnostic Code 5260 (2012). When rating a knee joint, other rating considerations arise. Where a Veteran has both a limitation of flexion and a limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. VA's General Counsel held that these separate ratings should each take into consideration any additional functional loss due to pain under 38 C.F.R. § 4.40 and DeLuca, and that these separate ratings do not amount to pyramiding under 38 C.F.R. § 4.14. VAOPGCPREC 9-2004. See 69 Fed. Reg. 59990 (2004). Limitation of extension of the leg at the knee (normal extension being to approximately 0 degrees) will be rated as follows: Extension limited to 45 degrees is 50 percent. Extension limited to 30 degrees is 40 percent. Extension limited to 20 degrees is 30 percent. Extension limited to 15 degrees is 20 percent. Extension limited to 10 degrees is 10 percent. Extension limited to 5 degrees is 0 percent. 38 C.F.R. §§ 4.71 Plate II, 4.71a, Diagnostic Code 5261 (2012). A June 1998 private MRI of the right knee showed meniscal horn degeneration. An August 1998 report notes that a cortisone injection had reduced the inflammation. An April 1999 private report reflects right knee swelling. A March 2001 VA orthopedic compensation examination report reflects that both knees had positive McMurray signs, negative Lachman's signs, limitation of motion in extension and flexion, and possible fluid build-up. The range of motion was from 5 degrees to 120 degrees. Although the examiner annotated left knee extension to"-5" degrees, which would indicate hyperextension beyond the zero degree point, the examiner specifically stated "diminished extension" indicating that the Veteran could not fully extend the left knee, that is, extension was limited to +5 degrees. A May 2001 VA out-patient treatment report notes that X-rays showed degenerative arthritis of both knees with benign effusions. An October 2001 VA orthopedic consultation report reflects a complaint of significant left knee pain and swelling. The Veteran denied any locking symptoms. There was mild effusion. Lateral instability was not found, but anterior/posterior laxity or instability was detected. Pain limited the left knee to a range of motion from zero to 100 degrees. Also shown was a positive McMurray's sign. Bilateral knee braces were authorized. A January 2002 VA out-patient treatment report mentions significant knee pains. In June 2002, the Veteran's prescription pain-killer, OxyContin(r), was increased. In September 2002, a VA physical therapist noted a recent flare-up of knee pain that limited flexion. Extension was full, but moderate effusion was detected. A June 2003 VA compensation examination report mentions that the Veteran treated the left knee with Icy Hot(r) and pain medication. An August 2003 report notes that conservative therapy had failed and that the Veteran opted for surgery. A September 2003 report notes that left knee arthroscopy was scheduled for September 19, 2003. A January 2004 VA compensation examination report does not address the left knee. In July 2005, Dr. Stojic examined the left knee and offered a diagnosis of osteoarthritis. The left knee was stable, laterally, that is, to varus and valgus stresses. Active range of motion was from 10 to 75 degrees. Slight crepitus was appreciated. In August 2007, the Veteran requested an extra-schedular rating and a total disability rating based on individual unemployability. An April 2008 VA rheumatology clinic report notes that the Veteran was awaiting a total knee arthroplasty. The knees were painful. He used a walker and multiple pain medications. In June 2008, the Board granted service connection for the left knee. Thereafter, the RO assigned an initial 10 percent rating under Diagnostic Code 5260 effective from March 21, 2000, a 20 percent rating under Diagnostic Code 5260 (flexion of the knee) effective March 12, 2004, and a separate 30 percent rating effective March 12, 2004 under Diagnostic Code 5261 (extension of the knee). The Veteran did not request, and the RO did not consider, a temporary total rating for the left knee arthroplasty that was performed in September 2003. In an April 2009 NOD, the Veteran indicated that the left knee was more severely disabled than the ratings reflect. He requested re-examination. A September 2010 VA compensation examination report reflects that the left knee disability severely impacted the Veteran's ability to do chores, exercise, recreation, and other activities of daily living. Painful flare-ups occurred 2 to 3 times per month. The examiner felt that the left knee disability would preclude manual labor. Active range of motion was from zero to 80 degrees. Moderate instability or subluxation was found. There was additional function impairment due to pain on motion in all planes. X-rays showed tri-compartmental arthritis. A September 2010 VA orthopedic compensation examination report reflects that the left knee range of motion, after two repetitions, was from 25 to 105 degrees with pain. Instability was not found. Only sedentary work was possible. In February 2012, the RO granted TDIU effective March 12, 2004. The RO considered this grant a full resolution of the appeal. The Veteran did not appeal that decision. The Veteran was offered another compensation examination in September 2012. The examination report, in the form of a disability benefits questionnaire, reflects that the current diagnosis was left knee degenerative arthritis with limitation of flexion and extension. Daily, constant pain with intermittent swelling was noted. The questionnaire reflects that the Veteran did not report flare-ups of pain, but he did report continuous pain. Left knee flexion was to 85 degrees with pain throughout the range of motion. Extension was to 30 degrees. Three repetitions were possible. Additional impairment due to incoordination, swelling, disturbance of locomotion, and interference with sitting, standing, and weight-bearing were found. Muscle strength was slightly weakened in flexion and extension. Lachman's test was normal. The examining nurse-practitioner did not find medial or lateral instability. Patella subluxation was not found. Surgical scars were not painful and did not exceed 39 sq-cm. A walker was required for distances over 15 feet. In November 2012, the RO granted a 40 percent rating under Diagnostic Code 5261 for limited extension, effective from September 5, 2012. Concerning the varying examination results during this lengthy (over 13 year) appeal period for the left knee, the Board is obligated to reconcile the variances in reported range of motion into a consistent picture that accurately represents all elements of the disability. 38 C.F.R. § 4.2. "It is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the rating may accurately reflect the elements of disability present." Concerning staged ratings, the Court held that where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). The severity of the left knee impairments has varied during the appeal period, but the evidence does not demonstrate the required distinct period for a staged rating. For instance, the most recent VA examination in September 2012 showed left knee range of motion from 30 to 85 degrees. The RO assigned a higher, 40 percent, schedular rating effective September 5, 2012, based on that examination. Delaying the higher rating until the date of that examination results in unfairness to the Veteran, as the examination date is not likely to be the date that the knee actually worsened, if indeed it did worsen. Two years earlier, in September 2010, the left knee range of motion was from 25 to 105 degrees. This 25-degree limit in extension, with consideration of the DeLuca tenets, also more nearly approximates the 40 percent criteria. Because the evidence does not demonstrate the required "distinct period" of any worsening, the criterion for a staged rating, as stated by the Court in Hart, is not met. The benefit of the doubt must therefore be accorded the Veteran, which means that any symptom documented during the appeal period should apply to the entire appeal period. For the entire appeal period, the left knee has been manifested by limited flexion to no worse than 85 degrees. Additional functional impairment due to flare-ups of pain, incoordination, swelling, disturbance of locomotion, interference with sitting, standing, and weight-bearing, and muscle weakness in flexion was found. Considering the tenets of DeLuca, and comparing these manifestations to the rating criteria of Diagnostic Code 5260, this disability picture more nearly approximates limited motion in flexion to 30 degrees. Therefore, the criteria of a 20 percent rating, and no higher, are more nearly approximated. For the period prior to March 12, 2004, an increased, 20 percent, schedular rating is granted for limited left knee flexion. For the period commencing on March 4, 2012, the appeal for a schedular rating greater than 20 percent must be denied. Turning to limited extension of the left knee, for the entire appeal period, the left knee has been manifested by limited extension to no worse than 30 degrees. While left knee extension has varied during the appeal period it has not been shown to be worse than 30 degrees during the appeal period. Additional functional impairment was found. Considering the tenets of DeLuca, the criteria of a 40 percent schedular rating, and no higher, are more nearly approximated. For the period prior to September 5, 2012, an increased, 40 percent, schedular rating is granted for left knee limited extension. For the period commencing on September 5, 2012, the appeal for a schedular rating greater than 40 percent must be denied. Turning to a separate rating for knee instability, where a claimant has arthritis and instability of a knee, separate ratings are authorized under 38 C.F.R. § 4.71a. VAOPGCPREC 23-97. See 62 Fed. Reg. 63604 (1997). While some examiners did not address left knee instability and others found no instability, in October 2001 anterior/posterior laxity or instability was found and in September 2010, a VA examiner deemed any left knee instability to be "moderate" in severity. No examiner has explained why instability is present during certain examinations and absent during others. Under Diagnostic Code 5257, slight knee disability due to instability or subluxation warrants a 10 percent rating. Moderate knee instability warrants a 20 percent rating and severe instability warrants a 30 percent rating. 38 C.F.R. §§ 4.71, Plate II, § 4.71a, Diagnostic Code 5257 (2012). Resolving any remaining doubt on the issue of the severity of left knee instability, the Board finds that left knee instability has never been worse than moderate during the appeal period. Therefore, the criteria for a separate 20 percent rating, and no higher, under Diagnostic Code 5257 are more nearly approximated. The combined rating for a disability shall not exceed the rating for the amputation at the elected level, were amputation to be performed. See 38 C.F.R. § 4.68 (2012). Amputation at the lower thigh level warrants a 60 percent rating. See 38 C.F.R. § 4.71a, Diagnostic Code 5162. With the benefits granted herein, the left lower extremity will enjoy at 40 percent rating for limited knee motion in extension, a 20 percent rating for limited knee motion in flexion, and a 20 percent rating for moderate left knee instability. These three ratings combine to produce a 62 percent rating, which is converted to the nearest degree divisible by 10, or 60 percent. See 38 C.F.R. § 4.25. Assignment of the above ratings, therefore, does not violate the "amputation rule" set forth above. After considering all the evidence of record, the Board finds that the evidence favors a 20 percent schedular rating for left knee limited flexion for the period prior to March 12, 2004. For the period commencing on March 4, 2012, the preponderance of the evidence is against a schedular rating greater than 20 percent for left knee limited flexion. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. Gilbert, 1 Vet. App. at 53. After considering all the evidence of record, for the period prior to September 5, 2012, the evidence favors an increased, 40 percent, schedular rating for limited extension of the left knee. For the period commencing on September 5, 2012, the preponderance of the evidence is against a schedular rating greater than 40 percent. Because the preponderance of the evidence is against that claim, the benefit of the doubt doctrine is not for application. Gilbert, 1 Vet. App. at 53. After considering all the evidence of record, for the entire appeal period a separate 20 percent schedular rating for left knee instability is granted. Extra-schedular Consideration The provisions of 38 C.F.R. § 3.321(b) provide that where the disability picture is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the Veteran for her service-connected disability, an extra-schedular evaluation will be assigned. Where the Veteran has alleged or asserted that the schedular rating is inadequate or where the evidence shows exceptional or unusual circumstances, the Board must specifically adjudicate the issue of whether an extra-schedular rating is appropriate, and if there is enough such evidence, the Board must direct that the matter be referred to the VA Central Office for consideration. Colayong v. West 12 Vet. App. 524, 536 (1999); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In August 2007, the Veteran specifically requested an extra-schedular rating. In this case, because additional development is necessary for a TDIU claim and because TDIU may be granted on either a schedular basis (38 C.F.R. § 4.16 (a)), or an extra-schedular basis (38 C.F.R. §§ 4.16 (b); 3.321 (b)), and because the Board is precluded from granting an extra-schedular rating in the first instance (Floyd v. Brown, 9 Vet. App. 88, 94 (1996)), the extra-schedular portion of the claim is remanded for development. ORDER Service connection for right knee degenerative joint disease is granted. Service connection for right elbow degenerative joint disease and chronic right elbow strain with epicondylitis is granted. Service connection for L4-5 and L5-S1 degenerative disc disease with right radiculopathy is granted. Service connection for any kidney disorder is denied. Secondary service connection for depressive disorder is granted. A schedular rating greater than 20 percent for left knee limited flexion is denied; however, the 20 percent schedular rating for left knee limited flexion is granted for the entire appeal period, subject to the laws and regulations governing payment of monetary benefits. A schedular rating greater than 40 percent for left knee limited extension is denied; however, the 40 percent schedular rating for left knee limited extension is granted for the entire appeal period, subject to the laws and regulations governing payment of monetary benefits. A separate 20 percent schedular rating for left knee instability is granted for the entire appeal period, subject to the laws and regulations governing payment of monetary benefits. REMAND Initial Rating for the Left Elbow As noted in the Introduction, following the Board's grant of an earlier effective date for service connection for the left elbow, in August 2008, the RO granted a 20 percent rating for the left elbow for that newly-created period of service connection. The Veteran submitted a timely notice of disagreement with the 20 percent rating. The RO has not yet issued an SOC. The Court has held that an unprocessed NOD should be remanded, rather than referred, to the RO. See Manlincon v. West, 12 Vet. App. 238 (1999). After the RO issues an SOC that addresses the disability rating assigned for a left elbow injury, if a substantive appeal has been filed, the case should be returned to the Board, if in order. Entitlement to TDIU Prior To March 12, 2004 The Veteran appealed a July 2009 RO rating decision that denied entitlement to TDIU. Since then, in a February 2012 RO rating decision, the RO did grant TDIU effective March 12, 2004, and the Veteran has not disagreed with that effective date, although in November 2010, he argued that he has been unemployed and unemployable since 1993. While the grant of TDIU appears to partially resolve the appeal, the Board continues to retain jurisdiction over the TDIU issue by virtue of the Court's holding in Rice v. Shinseki, 22 Vet. App. 447, 453-455 (2009). In Rice, the Court held that where, as here, a claimant, or the record raises the question of unemployability due to the disability for which an increased rating is sought, then part of the increased rating claim is an implied claim for TDIU. Rice v. Shinseki, 22 Vet. App. 447, 453-455 (2009). A VA examiner has stated that the left knee disability would preclude manual labor. The Veteran has claimed that he cannot work due in part to his service-connected left knee disorder. Because the current appeal period for the left knee rating began on March 21, 2001, the appeal period for an implied TDIU claim also began then. Further development is needed to properly adjudicate the implied TDIU claim. TDIU may be assigned, where the schedular rating is less than total, when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In this case, the implied TDIU claim for any portion of the appeal period prior to March 12, 2004, has not been developed for Board review and is remanded in accordance with the Court's holding in Rice, supra. Accordingly, the case is REMANDED for the following action: 1. The RO should issue an SOC with respect to the initial 20 percent rating for the left elbow. The Veteran should be informed that, under 38 C.F.R. § 20.302 (2012), he has 60 days from the date of mailing of the SOC to file a substantive appeal or a request for an extension of time to do so. 2. The RO should develop the implied claim for TDIU prior to March 12, 2004, as necessary, including associating any VA vocational rehabilitation records that exist (see Veteran's request of December 21, 2004) and providing an examination to determine whether service connected disabilities preclude securing or following a substantially gainful occupation during that earlier time period. All indicated tests and studies should be conducted and all findings described. The examiner should elicit a history of relevant symptoms from the Veteran. The claims file must be made available to the examiner for review and the examination report should reflect that such review was accomplished. The examiner should address, for the period prior to March 12, 2004, whether it is at least as likely as not (50 percent or greater probability), that the Veteran's service-connected disabilities preclude securing or following a substantially gainful occupation, considering his education and occupational experience but without consideration of his age. A rationale for any opinion should be given. 3. Following development and adjudication of the TDIU claim, if the benefit is not granted, the RO should submit it to the Director, Compensation and Pension Service, for extra-schedular consideration in accordance with 38 C.F.R. § 4.16(b) and § 3.321 (b). 4. Following the above, the RO should review all the relevant evidence and re-adjudicate the claims. If the desired benefits are not granted, an appropriate supplemental statement of the case (SSOC) should be issued. The Veteran and his attorney should be afforded an opportunity to respond to the SSOC before the claims folders are returned to the Board. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). If an examination is scheduled, failure to report for a scheduled examination, without good cause, may result in adverse consequences on the claim for benefits. 38 C.F.R. § 3.655(b) (2012). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs