Citation Nr: 1323745 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 09-27 673A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an initial disability rating higher than 10 percent for synovitis of the right knee. 2. Entitlement to an initial disability rating higher than 10 percent for synovitis of the left knee. 3. Entitlement to an initial compensable rating for synovitis of the feet. 4. Entitlement to an initial compensable rating for pes planus (flat feet). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran served on active duty from December 1997 to June 1998, from August to December 1999, and from October 2004 to April 2005. This appeal to the Board of Veterans' Appeals (Board/BVA) is from June 2006 and November 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The June 2006 decision granted the Veteran's claim for service connection for right and left knee synovitis and assigned an initial 10 percent rating for each knee retroactively effective from April 3, 2005, the day after his separation from service. The more recent November 2007 decision confirmed and continued these 10 percent initial ratings for the right and left knee synovitis. The RO also denied service connection for synovitis of the feet, and in response he perfected an appeal to the Board regarding all three of these claims. Because, however, the U. S. Court of Appeals for Veterans Claims (Court/CAVC) had held that when a claimant makes a claim, he is seeking service connection for symptoms, regardless of how those symptoms are diagnosed or labeled, the Board determined that additional consideration was required as to whether service connection was warranted for bilateral pes planus (flat feet), not just for the synovitis affecting the feet. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). And, indeed, the Board issued a decision in June 2011 granting service connection for both synovitis of the feet and pes planus (flat feet). But the Board, instead, remanded the claims for higher ratings for the right and left knee synovitis for further development and consideration - including especially obtaining all outstanding evaluation or treatment records, whether from VA or elsewhere (privately, etc.), and having the Veteran undergo a VA compensation examination reassessing the severity of his right and left knee synovitis. The remand of these claims to the RO was by way of the Appeals Management Center (AMC). The AMC since has issued a decision in July 2011 implementing the Board's grant of service connection for the synovitis of the feet and pes planus (flat feet). The AMC assigned an initial 0 percent, i.e., noncompensable rating for each disability retroactively effective from September 12, 2006, the date of receipt of these claims. And just as he had concerning the 10 percent ratings initially assigned for his right and left knee synovitis, the Veteran also appealed for higher initial ratings, meaning initial ratings higher than 0 percent, i.e., compensable ratings, for the synovitis of his feet and pes planus (flat feet). See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (when a Veteran appeals an initial rating, VA must consider whether to "stage" the rating - meaning assign different ratings at different times since the effective date of the award if there have been occasions when the disability has been more severe than at others, which will compensate him for this variance in the severity of his disability). See also Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (indicating he had to separately appeal this "downstream" issue of the propriety of these initial ratings). In this decision the Board is determining whether initial ratings higher than 10 percent are warranted for the right and left knee synovitis. Whereas the Board, instead, is REMANDING the claims for initial compensable ratings for the synovitis of the feet and pes planus (flat feet) because they require further development. And just as previously, the remand of the claims to the RO will be via the AMC in Washington, D.C. FINDING OF FACT Despite his right and left knee synovitis, the Veteran has full extension of his knees, so at least to 0 degrees, if not beyond (hyperextension), and his flexion is at least to 100 degrees, even when considering the effect of his associated pain and prolonged-repetitive motion; he does not have instability, locking, or ankylosis. CONCLUSION OF LAW The criteria are not met for initial ratings higher than 10 percent for the synovitis of the right and left knees. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5020 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 A. Duty to Notify Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, including apprising him of the information and evidence VA will obtain versus the information and evidence he is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Ideally, when the claim is for service connection, this notice should not only discuss the need for the claimant to show: 1) Veteran status, 2) that he has the disability alleged, 3) that there is a relationship or correlation between the disability and his military service, but also that a "downstream" 4) disability rating and 5) effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Here, though, the Veteran is challenging the initial evaluations assigned following grants of service connection. In Dingess, the Court (CAVC) held that in cases where service connection has been granted and an initial disability rating and effective date assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id., at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify concerning these initial-rating claims has been satisfied. Dunlap v. Nicholson, 21 Vet. App. 112 (2007); and VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). According to the holding in Goodwin v. Peake, 22 Vet. App. 128 (2008), and its progeny, instead of issuing an additional VCAA notice letter in this situation concerning the "downstream" disability rating and effective date elements of the claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue a statement of the case (SOC) if the disagreement is not resolved, and this occurred in this particular instance. The RO provided the Veteran the required SOC in June 2009, also since has provided him a Supplemental SOC (SSOC) in June 2012, citing the applicable statutes and regulations and discussing the reasons or bases for assigning 10 percent initial ratings but no greater ratings. It is, however, presumed he is seeking the highest possible ratings, absent express indication to the contrary. See AB v. Brown, 6 Vet. App. 35 (1993). He therefore has received all required notice concerning these initial-rating claims. B. Duty to Assist With regards to this additional VCAA obligation, it includes obtaining all potentially relevant records, whether concerning evaluation or treatment during service or since, and when necessary having the Veteran undergo a VA compensation examination for a medical opinion. To this end, the Board previously remanded these claims in June 2011 - including especially to obtain all outstanding evaluation or treatment records, whether from VA or elsewhere (privately, etc.), and to have the Veteran undergo a VA compensation examination reassessing the severity of the synovitis affecting his knees. A review of the claims file, including since that remand, reveals that his VA treatment records and lay statements have been associated with his claims file for consideration. He also was afforded VA compensation examinations. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). If not, it is incumbent on the Board to return the examination report as inadequate for rating purposes. 38 C.F.R. § 4.2. The VA examinations obtained in this case, including the one on remand, are adequate as they are collectively predicated on a review of the claims file, contain a description of the history of the disability at issue - as affecting both the right and left knee, document and consider the relevant medical facts and principles, and record the relevant findings needed to properly rate this disability. Consequently, VA's duty to assist with respect to obtaining a VA examination or medical opinion has been met. 38 C.F.R. § 3.159(c)(4). Moreover, the Board's June 2011 remand directives have been satisfied, both in terms of obtaining all outstanding VA or private evaluation or treatment records and in having the Veteran undergo that additional VA compensation examination reassessing the severity of the synovitis affecting his knees. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders). But see, too, D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (another remand not required under Stegall where the Board's remand instructions were substantially complied with, even if there was not exact or total compliance), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). VA has provided the Veteran opportunity to identify and/or submit evidence and argument in support of his claims. He has not made the Board aware of any evidence still needing to be obtained. He therefore has received all essential notice and assistance, has had a meaningful opportunity to participate effectively in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Thus, no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Increased Ratings A. Applicable Law Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). All reasonable doubt regarding the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2012). Where entitlement to compensation already has been established and increase in disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all of the evidence of record, the more critical evidence is that generated during the appeal period. Since the existing 10 percent ratings date from April 3, 2005, so back to the day after the Veteran separated from service when he returned to life as a civilian, the status of his disability since is the focus of the Board's analysis. The Board must assess the level of disability from that date going forward and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged" rating. See Fenderson, 12 Vet. App at 125-26. The Court has held that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2008) (extending the holding in Fenderson to require that VA also employ this practice of considering whether a staged rating is warranted even if the rating at issue is not an initial rating, rather, an established rating). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the Veteran raised them, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). The Veteran's left and right knee disabilities are each assigned a 10 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5020, which pertains to synovitis and indicates to rate it as arthritis based on the extent it causes limitation of motion of the affected parts, which, here, are the knees. Under Diagnostic Code 5003, degenerative arthritis, when substantiated by X-rays, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. And since here the joint or joints involved are in the knees, this requires consideration of Diagnostic Codes 5260 (which concerns limitation of leg and knee flexion) and 5261 (which concerns limitation of leg and knee extension). Also according to Diagnostic Code 5003, when, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, 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 Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 20 percent disability rating is warranted with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent disability rating is warranted with X-ray evidence of involvement of two or more major joints or two or more minor joint groups. Note (1) accompanying Diagnostic Code 5003 states that these 20 and 10 percent ratings based on X-ray findings will not be combined with ratings based upon limitation of motion. With any form of arthritis, painful motion is an important factor of disability. 38 C.F.R. § 4.59. The intent of the Rating Schedule is to recognize painful motion with joint or particular pathology as productive of disability. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. 38 C.F.R. § 4.59; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that § 4.59 applies to all forms of painful motion of joints, not just to those specifically affected by arthritis). When evaluating joint disabilities that are rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, premature or excess fatigability, or incoordination is demonstrated and those factors are not contemplated in the relevant rating criteria. 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss due to pain is rated at the same level as functional loss where motion is impeded. See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Moreover, although pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (emphasis added). In Mitchell, the Court held that the evaluation of painful motion as limited motion only applies when limitation of motion is noncompensable under the applicable diagnostic code (DC). The Court further explained that, although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), when read together with DC 5003, it does not follow that the maximum rating is warranted under the applicable DC pertaining to range of motion simply because pain is present throughout the range of motion. See id. Rather, the pain "must actually affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance' [under] 38 C.F.R. § 4.40 in order to constitute functional loss" warranting a higher rating. See id. at 43. Diagnostic Code 5260 provides a noncompensable rating when leg and knee flexion is limited to 60 degrees. A 10 percent rating is assigned when flexion is limited to 45 degrees. A 20 percent rating is assigned when flexion is limited to 30 degrees. And a 30 percent rating is assigned when flexion is limited to 15 degrees. Id. Diagnostic Code 5261 provides a noncompensable rating when knee and leg extension is limited to 5 degrees. A 10 percent rating is assigned when extension is limited to 10 degrees. A 20 percent rating is assigned when extension is limited to 15 degrees. A 30 percent rating is assigned when extension is limited to 20 degrees. A 40 percent rating is assigned when extension is limited to 30 degrees. And a 50 percent rating is assigned when extension is limited to 45 degrees. Id. For comparison, normal range of motion of the knee is to 0 degrees of extension and to 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II. VA's General Counsel held that separate ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5260 (limitation of flexion of the leg) and under Diagnostic Code 5261 (limitation of extension of the leg), may be assigned for disability of the same joint. VAOPGCPREC 9-2004 (September, 2004). Diagnostic Code 5257 provides ratings for "other" knee impairment, including if due to recurrent subluxation or lateral instability. A 10 percent rating is warranted for slight consequent knee disability. A 20 percent rating is warranted for moderate consequent knee disability. And a 30 percent rating is warranted for severe consequent knee disability. These descriptive words "slight," "moderate," and "severe" are not defined in the Rating Schedule; rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. It should also be noted that use of such descriptive terminology as "mild" and "moderate" by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue or a disability's overall severity. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. VA's General Counsel has held that a claimant who has arthritis and instability of a knee may be rated separately under Diagnostic Codes 5003 and 5257, respectively, while cautioning that any such separate rating must be based on additional disabling symptomatology. VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997); VAOPGCPREC 9-98, (August, 1998). VA's General Counsel further explained that, if a Veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also X-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. Id. This is because, in applying Diagnostic Code 5003, the Court has held in the case of Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), that "painful motion of a major joint . . . caused by degenerative arthritis, where the arthritis is established by X-ray, is deemed to be limited motion and entitled to a minimum 10 percent rating, per joint, combined under Diagnostic Code 5003, even though there is no actual limitation of motion." See also 38 C.F.R. § 4.59 (2012). Diagnostic Code 5258 provides a single 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain and effusion into the joint. There also are other diagnostic codes for rating knee disabilities. However, these other codes either do not allow for ratings exceeding 10 percent, so do not provide ratings higher than the Veteran already has, or simply do not apply because he is not shown to have the type of impairment contemplated by them. As an example, he does not have ankylosis of the knee (which is rated under Diagnostic Code 5256). Ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996), citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999). See, too, Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. While, as will be discussed, there is no disputing he has some limitation of motion of his knees, if only on flexion rather than additionally on extension, particularly on account of his pain, it cannot be said that his motion is so restricted even on flexion as to amount to ankylosis, which essentially contemplates absolutely no motion at all. There equally is no suggestion he has had removal of semilunar cartilage (which is rated under Diagnostic Code 5259); nonunion or malunion of the tibia and fibula (rated under Diagnostic Code 5262); or genu recurvatum (rated under Diagnostic Code 5263). B. Evidence The Veteran had a VA general medical examination in July 2005. He reported having bilateral knee pain, rated as 6/10 in severity. He also had occasional swelling, heat, and redness. He treated his condition with medication, but was able to walk without any assistive devices. He experienced flare-ups in damp or cold weather or with prolonged walking or standing. He said these episodes lasted up to a day and caused an additional 20 or 30 degrees of limited motion. On objective physical examination, he had a normal gait. There was tenderness along the joint lines of both knees. No edema, redness, swelling, instability, or effusion was present. Strength, reflexes, and sensation were normal. Range of motion in the right knee was 0 degrees of extension to 128 degrees of flexion. Range of motion in the left knee was 0 degrees of extension to 122 degrees of flexion. Flexion was limited by an additional 2 degrees bilaterally following repetitive testing (meaning it was reduced to 126 degrees in the right knee and to 120 degrees in the left). VA treatment records dated in November 2006, so from just a little more than a year later, reflect full range of motion in the knees without crepitus. There also was no erythema, warmth or fluid present. The Veteran had an additional VA compensation examination in February 2007. He complained of constant knee pain, ranging from 5/10 to 8/10 in severity. He also experienced some stiffness, swelling, heat, and redness. He denied any giving way, subluxation, or locking. He treated his condition with medication. He experienced flare-ups precipitated by walking, standing, or lifting weight. The flare-ups limited his range of motion by up to 20 degrees due to the extent of his pain. On examination, generalized tenderness was present. There was no edema, redness, effusion, instability or swelling. Range of motion was 0 degrees extension to 125 degrees flexion bilaterally. Pain was present throughout the range of motion. The Veteran also had severe pain following repetitive testing, though range of motion was unchanged. X-rays were normal bilaterally. VA treatment records dated in March 2008 show he continued to complain of knee pain, which he said was greater in his left knee than right. His work involved maintenance duties which required squatting and lifting, and he heard crackles in his knees when squatting. Examination showed minimal swelling in the left knee. Otherwise, both knees appeared normal. There was no tenderness to palpation. Patellar movements passively elicited the aforementioned crackle. Range of motion was full and unrestricted bilaterally. In March 2011, the Veteran complained of increasing knee pain which had caused him to miss work for a few days. He had still another VA compensation examination in August 2011, following and a result of the Board remanding these claims in June 2011. He reported pain, stiffness and weakness in both knees, but this time greater in his right knee than left. He also experienced "popping" on the right side. He denied any deformity, instability, or subluxation. He had occasional prepatellar swelling and warmth bilaterally. Baseline pain was 3/10, with flare-ups up to 9/10. These usually occurred at work as a result of standing and walking. He treated his condition with medication. He also had soft braces for his knees, though he usually only wore one on his right knee. He estimated that he could stand for about 10 minutes before having to shift his weight. He could walk about 300 yards before the onset of pain. On objective physical examination, the right knee had -6 degrees of extension to 110 degrees of flexion, limited by pain. Following repetitive testing, extension was -4 degrees and flexion was 107 degrees. The left knee had -3 degrees of extension to 109 degrees of flexion, limited by pain. Following repetitive testing, extension was -2 degrees and flexion was 109 degrees. There was no tenderness to palpation. Strength was 5/5, so normal, albeit with a report of pain in the prepatellar area. There was no ankylosis or leg-length discrepancy. Instability was not present; Drawers testing and McMurray's testing were negative, though Apley's testing was positive. The examiner noted minimal to mild hyperextension in both knees without pain. X-rays were normal bilaterally. VA records more recently dated in November 2011 show the Veteran complained of knee pain after working all day. Additional records from January 2012 show he reported increased left knee pain without specific injury. C. Analysis Based on the evidence of record, higher initial ratings are not warranted for the left and right knee synovitis. First, a rating under Diagnostic Code 5257 is unwarranted. There are no findings of instability or subluxation at any point during the appeal period, certainly not on a recurrent basis, and the Veteran has not alleged any such symptoms. Although he apparently has braces for his knees, he admits they are the "soft" type and that he usually only wears the one for his right knee. Moreover, the records of his evaluation and treatment far more often than not indicate that objective diagnostic testing for instability and subluxation (e.g., Drawer's, McMurray's, etc.) has been overwhelmingly unremarkable. Similarly, a rating under Diagnostic Code 5258 is unwarranted. Although the synovitis causes knee pain, the evidence does not reflect any findings of frequent episodes of locking or effusion. Indeed, to the contrary, the reports of the VA compensation examinations specifically note the absence of any effusion, and the Veteran denied experiencing any episodes of locking. The Veteran also is not shown to be entitled to greater compensation under Diagnostic Code 5260 because he does not have sufficient limitation of flexion, even when considering the extent of his pain. Even the most minimum rating of 0 percent under this DC requires flexion limited to 60 degrees. The most minimum compensable rating of 10 percent, in comparison, requires flexion limited to 45 degrees. But throughout the pendency of these claims, flexion has most times exceeded 100 degrees in each knee, even when accounting for pain and repetitive motion (i.e., prolonged use). Notably, the Veteran reported repetitive use as a precipitating factor in his flare-ups. And although the February 2007 VA examination noted that pain was present throughout his range of motion, bilaterally, there is no indication this resulted in a level of impairment consistent with a compensable degree of limited flexion. In other words, pain throughout a range of motion, alone, does not result in functional limitation consistent with flexion limited to 45 degrees given that his overall bilateral flexion exceeded 100 degrees. See Mitchell, supra. Similarly, a compensable rating under Diagnostic Code 5261 requires extension limited to 10 degrees. However, extension repeatedly has been to at least 0 degrees during the pendency of these claims, so the Veteran continually has had what amounts to normal extension, again, even when accounting for his pain and repetitive motion. In fact, his knees actually extend beyond the 0-degree point, so he has hyperextension, meaning even greater than normal extension. And there is no suggestion his hyperextension is an abnormality attributable to his synovitis. Finally, the Board has considered a higher rating under Diagnostic Code 5003. However, a higher 20 percent rating under this DC requires involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. The Veteran already has separate 10 percent ratings for each knee, which equal 20 percent when combined. See 38 C.F.R. § 4.25. Moreover, the higher 20 percent rating is only appropriate in the absence of limitation of motion. Although his condition does not result in compensable levels of limited motion under Diagnostic Codes 5260 and 5261, as discussed above, he does have some limited motion on flexion, albeit not also on extension. As well, the evidence does not reflect any incapacitating exacerbations. And while, for the purpose of rating disability from arthritis, the knee is considered a major joint (see 38 C.F.R. § 4.45(f)), he has to have involvement of two or more major joints or two or more minor joint groups, aside from any incapacitating exacerbations. For these reasons, higher 20 percents rating under Diagnostic Code 5003 would not be appropriate. In adjudicating a claim the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences; for example, he is competent to report that he experiences certain symptoms such as knee pain and limited mobility. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds him credible in his reports of the symptoms he experiences. But the evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine whether the evidence also is "credible", or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board additionally must determine whether the evidence also is credible). Only if the evidence is both competent and credible does it ultimately have probative value. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). The third step of this inquiry, however, requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). And, here, when his lay testimony is considered along with the medical evidence of record, which also must be considered, his account of his symptomatology describes a level of disability consistent with his existing ratings. D. Extra-schedular Consideration Also in evaluating the Veteran's claims for higher initial ratings, the Board has considered whether he is entitled to a greater level of compensation on an extra-schedular basis. Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors that would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). The question of an extra-schedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). And although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. See Barringer v. Peake, 22 Vet. App. 242 (2008). As part of the evaluation for an extra-schedular rating, the Board has considered the provisions of Mittleider v. West, 11 Vet. App. 181, 182 (1998), which holds that the benefit-of-the-doubt doctrine applies to determinations of whether a symptom should be attributed to a service-connected condition. The Board has attributed all potentially service-connected symptoms to the Veteran's service-connected conditions in considering whether he is entitled to an extra-schedular rating. 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). See also Fanning v. Brown, 4 Vet. App. 225, 229 (1993). According to Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extra-schedular 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 extra-schedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected disabilities are inadequate. A comparison between the level of severity and symptomatology of the Veteran's left and right knee synovitis with the established criteria found in the Rating Schedule for these disabilities shows that the rating criteria reasonably describe his disability level and symptomatology, as discussed above. That is to say, his pain and consequent limitation of motion are expressly contemplated by the Rating Schedule. The schedule also addresses additional symptoms such as instability and locking, which in any event are not shown to be present. There is no indication his condition results in any symptoms that fall so far outside the Rating Schedule as to render it inadequate. There is mention in some of the records of him having to take time off from work because of the knee synovitis. But generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (reiterating that the disability rating, itself, is recognition that industrial capabilities are impaired). So there is no basis for referring this case for extra-schedular consideration. See Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). ORDER The claim for an initial rating higher than 10 percent for the synovitis of the right knee is denied. The claim for an initial rating higher than 10 percent for the synovitis of the left knee also is denied. REMAND The Board's prior June 2011 decision granted the Veteran's claims of entitlement to service connection for synovitis of his feet and for pes planus (flat feet). The AMC subsequently, in a July 2011 rating decision, implemented the Board's grant of service connection for these additional disabilities. The AMC assigned an initial 0 percent (noncompensable) rating for each disability, retroactively effective from September 12, 2006, the date of receipt of these claims. In August 2011, in response, the Veteran submitted a written statement voicing his disagreement with that decision and offering arguments as to why higher initial ratings were warranted - meaning compensable ratings. In February 2013 he submitted additional statements and evidence in support of his argument for increased ratings. The RO responded by stating that his February 2013 correspondence could not be accepted as a notice of disagreement (NOD) with the July 2011 rating decision because the one-year appeal period had expired. However, the Board finds that his earlier August 2011 statement, which he submitted only one month after that July 2011 decision, especially when read liberally may be construed as a timely NOD with that July 2011 rating decision. 38 C.F.R. § 20.201 (communication expressing dissatisfaction with RO decision and desire to contest the result constitutes an NOD; special wording not required). See also Gallegos v. Gober, 14 Vet. App. 50 (2000) (VA should liberally interpret a written communication that may constitute an NOD under the law), rev'd sub nom Gallegos v. Principi, 283 F. 3d 1309 (Fed. Cir. 2002) (the language of 38 C.F.R. § 20.201 properly implemented 38 U.S.C.A. § 7105, and assuming that the [claimant] desired appellate review, meeting the requirement of § 20.201 was not an onerous task); Palmer v. Nicholson, 21 Vet. App. 434, 437 (2007) ("VA has always been, and will continue to be, liberal in determining what constitutes [an NOD]") (quoting 57 Fed. Reg. 4088, 4093 (Feb. 3, 1992)). The filing of an NOD places a claim in appellate status. The failure to issue an SOC in this circumstance renders a claim procedurally defective and necessitates a remand. See 38 C.F.R. §§ 19.9, 20.200, 20.201 (2012); see also Manlincon v. West, 12 Vet. App. 238 (1999). An SOC was never issued in response to the Veteran's August 2011 NOD. An appeal to the Board consist of a timely filed NOD in writing, and after an SOC has been furnished, a timely filed substantive appeal (e.g., VA Form 9 or equivalent statement). See 38 U.S.C.A. § 7105(a); 38 C.F.R. § 20.200. According to 38 U.S.C.A. § 7105(d)(1), once a claimant files a timely NOD, and the Agency of Original Jurisdiction (AOJ), which, here, is the RO, does not resolve the disagreement either by granting the benefit or through withdrawal of the NOD, the agency shall prepare an SOC. "Section 7105(d)(3) makes the furnishing of an [SOC] the event that triggers the Veteran's obligation to file a 'formal appeal' with the Board[.]" Cook v. Principi, 318 F.3d 1334, 1340-41 (Fed. Cir. 2002) (en banc). So, here, as the August 2011 submission has been construed by the Board as an NOD, these claims must be remanded so an SOC may be provided regarding the issues of whether compensable initial ratings are warranted for the Veteran's flat feet and synovitis of the feet. He then in response will have opportunity to complete the steps necessary to perfect his appeal of these claims to the Board by also filing a timely substantive appeal (VA Form 9 or equivalent). Accordingly, these claims are REMANDED for the following action: Provide the Veteran an SOC addressing the issues of his claimed entitlement to initial compensable ratings for the synovitis of his feet and pes planus (flat feet). Remind him that he still needs to file a substantive appeal (VA Form 9 or equivalent statement) to complete the steps necessary to perfect his appeal of these claims to the Board, and advise him of how long he has to do this. Only if he perfects his appeal of these claims should they be returned to the Board for further appellate consideration. He has the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs