Citation Nr: 1323758	
Decision Date: 07/25/13    Archive Date: 08/06/13

DOCKET NO.  07-27 296	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1.  Entitlement to service connection for a right knee disability, to include as secondary to the service-connected chondromalacia patella of the left knee. 

2.  Entitlement to an initial evaluation in excess of 10 percent for chondromalacia patella of the left knee status post medial meniscectomy. 

3.  Entitlement to an initial rating in excess of 10 percent for spondylosis of the lumbar spine. 

4.  Entitlement to an initial rating in excess of 10 percent for right carpal tunnel syndrome for the period prior to October 9, 2012. 

5.  Entitlement to an initial rating in excess of 10 percent for left carpal tunnel syndrome for the period prior to October 9, 2012.

6.  Entitlement to an initial rating in excess of 30 percent for right carpal tunnel syndrome for the period since October 9, 2012.

7.  Entitlement to an initial rating in excess of 20 percent for left carpal tunnel syndrome for the period since October 9, 2012.

8.  Entitlement to an initial evaluation in excess of 10 percent for bilateral plantar fasciitis. 

9.  Entitlement to an initial compensable evaluation for allergic rhinitis. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

James A. DeFrank, Counsel


INTRODUCTION

The Veteran had active service from November 1983 to April 1984 and from August 1985 to July 2006. 

This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. 

The Veteran testified before a Decision Review Officer (DRO) in September 2008.  A transcript of her hearing has been associated with the record.

In a May 2011 decision, the Board remanded these issues for additional development.

Service connection for spondylosis of the lumbar spine, right carpal tunnel syndrome, left carpal tunnel syndrome and bilateral plantar fasciitis were granted in an August 2006 rating decision which assigned noncompensable evaluations for each disability, effective August 1, 2006.  

In an August 2012 rating decision, the RO increased the Veteran's noncompensable ratings for spondylosis of the lumbar spine, right carpal tunnel syndrome, left carpal tunnel syndrome and bilateral plantar fasciitis to 10 percent disability evaluations, effective August 1, 2006.  

Additionally, in a November 2012 rating decision, the RO increased the Veteran's 10 percent disability rating for right carpal tunnel syndrome to a 30 percent disability rating, effective October 9, 2012 and increased the Veteran's 10 percent disability rating for left carpal tunnel syndrome to a 20 percent rating, effective October 9, 2012.  

The Board notes that since the increases to 10 percent, 20 percent and 30 percent did not constitute a full grant of the benefits sought, the increased rating issues remain in appellate status.  AB v. Brown, 6 Vet. App. 35, 39 (1993).

The issues of entitlement to an initial rating in excess of 10 percent for spondylosis of the lumbar spine and entitlement to service connection for a right knee disability, to include as secondary to the service-connected chondromalacia patella of the left knee are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The Veteran's service-connected chondromalacia patella of the left knee status post medial meniscectomy is manifested by pain, slight limitation of flexion, and no objective evidence of instability.

2.  For the period prior to October 9, 2012, the medical evidence of record shows that the Veteran's left and right carpal tunnel syndrome was manifested by, at most, mild incomplete paralysis in each arm.

3.  For the period since October 9, 2012, the Veteran's right (major) carpal tunnel syndrome has been manifested by no more than moderate incomplete paralysis of the median nerve.

4.  For the period since October 9, 2012, the Veteran's left (minor) carpal tunnel syndrome has been manifested by no more than moderate incomplete paralysis of the median nerve.

5.  The Veteran's plantar fasciitis has been manifested by no more than a moderate disability of the bilateral feet.

6.  The Veteran's service-connected allergic rhinitis is manifested by a history of a runny nose, headaches, sneezing, colds and coughing without 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side.


CONCLUSIONS OF LAW

1.  The criteria for an initial disability rating in excess of 10 percent for service-connected chondromalacia patella of the left knee status post medial meniscectomy have not been met.  38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.71a, Diagnostic Code 5259 (2012).

2.  For the period prior to October 9, 2012, the criteria for an initial rating in excess of 10 percent for carpal tunnel syndrome of the right hand have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8515 (2012).

3.  For the period prior to October 9, 2012, the criteria for an initial rating in excess of 10 percent for carpal tunnel syndrome of the left hand have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8515 (2012).

4.  For the period since October 9, 2012, the criteria for an initial rating in excess of 30 percent for carpal tunnel syndrome of the right hand have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8515 (2012).

5.  For the period since October 9, 2012, the criteria for an initial rating in excess of 20 percent for carpal tunnel syndrome of the left hand have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8515 (2012).

6.  The criteria for an initial rating in excess of 10 percent for bilateral plantar fasciitis have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5276, 5284 (2012).

7.  The criteria for an initial compensable disability rating for allergic rhinitis have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1-4 .7, 4.97, Diagnostic Code 6522 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159).  

In correspondence dated in February 2006, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. §5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012).  Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide.  A June 2008 letter also notified the Veteran of the process by which disability ratings and effective dates are established.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

Since this claim is the appeal of an initial rating, fully satisfactory notice was delivered after it was adjudicated.  However, the RO subsequently readjudicated the claim based on all the evidence in various supplemental statements of the case.  The Veteran was able to participate effectively in the processing of his claim.  There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete notice been provided at an earlier time. 

VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012).  Service treatment records have been associated with the claims file.  All identified and available treatment records have been secured. 

As the Board will discuss in detail in the analysis below, the Veteran was provided with VA examinations throughout the appeal period.  The reports of these examinations reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate evaluations of the Veteran, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record.  Additionally, the Veteran has not stated nor is there evidence indicating that there has been a material change in the severity of her disabilities since she was last examined for various disabilities in June 2011 and October 2012.  See 38 C.F.R. § 3.327(a) (2012).  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted.  See VAOPGCPREC 11-95 (April 7, 1995).  The Board finds that the examination reports of record are adequate for purposes of rendering a decision in the instant appeal.  See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Neither the Veteran nor her representative has contended otherwise.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met.  38 C.F.R. § 3.159(c) (4) (2012); Barr, 21 Vet. App. at 312.

The Board additionally observes that all appropriate due process concerns have been satisfied.  See 38 C.F.R. § 3.103 (2012).  

Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 

Laws and Regulations

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations.  Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012).  Separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2012).  Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2012). 

The Veteran's entire history is reviewed when making a disability determination.  See 38 C.F.R. § 4.1 (2012).  Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55 (1994).  However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder.  The Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period.  See also Hart v. Mansfield, 21 Vet. App. 505 (2008).

The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided.  38 C.F.R. § 4.14 (2012).  The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability.  See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994).

Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. §4.7 (2012).

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 (2012), pertaining to functional impairment.  If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain.  DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2012).

The Board has reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 


I.  Entitlement to an initial evaluation in excess of 10 percent for chondromalacia patella of the left knee status post medial meniscectomy.

In an August 2006 rating decision, the RO granted service connection for chondromalacia patella of the left knee status post medial meniscectomy at a 10 percent disability rating under Diagnostic Code 5259.

In a January 2008 rating decision, the RO assigned a temporary total disability rating for the Veteran's service-connected left knee disability due to surgical or other treatment necessitating convalescence effective July 2, 2007, and assigned a 10 percent rating effective September 1, 2007.  

Under Diagnostic Code 5259, a 10 percent evaluation is assigned for removal of semilunar cartilage that is symptomatic.  See 38 C.F.R. § 4.71a, Diagnostic Code 5259 (2012). 

As the Veteran is currently assigned a 10 percent evaluation under Diagnostic Code 5259, she is receiving the maximum schedular rating under this Diagnostic Code.  Therefore, she cannot receive an increased rating under Diagnostic Code 5259.  However, the Board will consider whether she can receive an increased rating under any other diagnostic code relating to the knee. 

Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic 
codes for the specific joint or joints involved.  When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012).

Diagnostic Codes 5260 and 5261 provide the criteria for rating limitation of motion of the knee and leg.  Normal range of motion for the knee is from 0 degrees of extension to 140 degrees of flexion.  See 38 C.F.R. § 4.71, Plate II (2012).

Under Diagnostic Code 5260, a noncompensable rating is assigned for flexion of the leg limited to 60 degrees.  A 10 percent rating is assigned for flexion of the leg limited to 45 degrees.  A 20 percent rating is assigned for flexion of the leg limited to 30 degrees.  A 30 percent rating is assigned for flexion of the leg limited to 15 degrees.  See 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2012).

Under Diagnostic Code 5261, a noncompensable rating is assigned for extension of the leg limited to 5 degrees.  A 10 percent rating is assigned for extension of the leg limited to 10 degrees.  A 20 percent rating is assigned for extension of the leg limited to 15 degrees.  A 30 percent rating is assigned for extension of the leg limited to 20 degrees.  A 40 percent rating is assigned for extension of the leg limited to 30 degrees.  A 50 percent rating is assigned for extension of the leg limited to 45 degrees.  See 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2012).

Additionally, the evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40  and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. §4.45.  See DeLuca, supra.

Separate ratings under Diagnostic Code 5260 and Diagnostic Code 5261 may be assigned for disability of the same joint.  See VAOPGCPREC 9-04.

Under Diagnostic Code 5257, a 10 percent evaluation is assigned for slight recurrent subluxation or lateral instability of the knee.  A 20 percent evaluation is assigned for moderate recurrent subluxation or lateral instability of the knee, and a 30 percent evaluation is assigned for severe recurrent subluxation or lateral instability of the knee.  See 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2012).

The General Counsel for VA, in a precedent opinion (VAOPGCPREC 23-97) held that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257.  General Counsel stated that when a knee disorder is already rated under Diagnostic Code 5257, the Veteran must also have limitation of motion which at least meets the criteria for a 0 percent rating under Diagnostic Code 5260 (flexion limited to 60 degrees or less) or 5261 (extension limited to 5 degrees or more) in order to obtain a separate rating for arthritis.  Where additional disability is shown, a Veteran rated under Diagnostic Code 5257 can also be compensated under Diagnostic Code 5003 and vice versa.

An April 2002 physical therapy note indicated that the Veteran had reports of increased pain in the left knee since her December 2001 arthroscopic surgery.  The Veteran had 0 to 127 degrees of flexion with pain.  Knee extension was within normal limits without pain.  The therapist noted that the Veteran had signs of patella irritation related to decreased medial and inferior glide with crepitus.

The Veteran underwent a VA examination in February 2006.  She presented with complaints of pain and instability of the bilateral knees.  The examiner noted that on examination all joints had full range of motion.  Muscle strength was 5/5 in all extremities.  There was no pain, weakness, fatigue or incoordination following repetitive motion.  There was no palpable swelling, joint effusion or tenderness noted.  Flexion of the left knee was 0 to 120 degrees.  Extension was 0 degrees.  Lachman's test, McMurray's test and Drawer test were all negative.  Bilateral knee x-rays were normal.  The diagnosis was chondromalacia, patella, torn left anterior cruciate ligament (ACL) with no repair.

A November 2006 private x-ray report noted that the Veteran had degenerative changes involving the medial meniscal compartment suggested bilaterally.  The left knee showed a slight narrowing of the medial meniscal compartment and the plantae was visualized without compression deformity.  The distal femur was intact, the patella did not appear to be fractured and there was no large joint effusion.

In July 2007, the Veteran underwent arthroscopic surgery for repair of a torn left ACL and a torn medial meniscus of the left knee.

A July 2007 rehabilitation center treatment report noted that the Veteran received treatment for her left ACL and medial meniscus tear repair.  The Veteran had difficulty walking, standing lengths of time and going from sit to stand.  She was unable to bend her knee all the way, squat or kneel.  She had decreased knee flexion passively at 85 degrees.  She ambulated with her brace with no assistive devices.  

An August 2007 treatment note indicated that the Veteran was doing well post-operatively and had minimal complaints of pain.  She had no effusion.  Her range of motion was 0 to 120 degrees.

A February 2009 progress treatment note from a private physician indicated that that Veteran was "doing well" post surgery.  She had no effusion and had negative Lachman, negative anterior drawer and negative pivot-shift.  She had a well-healed surgical scar.  X-rays demonstrated only minimal evidence of joint space narrowing of the medial compartment of the left knee.  The diagnosis was status post left knee surgery, doing well.

The Veteran underwent a VA examination in June 2011.  The joint symptoms reported by the Veteran included giving way, instability, pain, stiffness and decreased speed of joint motion.  However, there was no deformity, weakness, incoordination, locking episodes, episodes of dislocation or sublaxation or flare-ups of joint disease.  There were no constitutional symptoms of arthritis.  Standing limitation was 10 to 30 minutes with rest for 3 to 8 hours per day.  Her gait was normal and there was no evidence of abnormal weight bearing.  On examination, the general joint findings revealed pain at rest and crepitation.  However, on examination there were no clicks or snaps, grinding, instability, patellar abnormality or meniscus abnormality.  Flexion was from 0 to 130 degrees and the left knee extension was normal (0 degrees).  There was objective evidence of pain following repetitive motion but there were no additional limitations after 3 repetitions of range of motion.  There was no joint ankylosis.  3 tiny well healed surgical scars were noted left of the patellar area.  One scar was 2cm long and well healed.  There was a scar noted below the left knee with skin intact and no keloid.  The diagnosis was a history of bilateral knee sprain status post left knee arthroscopic surgery.  Pain was the problem associated with the diagnosis.  The knee prevented the Veteran from sports and recreation.  There were severe effects on shopping and exercise and only moderate effects on chores, travelling, feeding, bathing, dressing, toileting, grooming and driving.

An August 2011 private treatment note reported that the Veteran's left knee was asymptomatic and normal on examination.  The left knee was status post ACL reconstruction and had adequate fixation on her graft.  She did have some joint space narrowing laterally consistent with arthritis found in her knee at the time of arthroscopy.  The diagnosis was status post ACL reconstruction of the left knee with minimal symptoms.

In a December 2012 VA addendum opinion, a VA examiner noted that August 2011 x-rays of the left knee revealed "no evidence of significant degenerative arthritis".

The Board finds that an initial disability rating in excess of 10 percent is not warranted as the Veteran's left knee is simply not manifested by any symptoms other than those for which she is already compensated by her 10 percent evaluation under Diagnostic Code 5259.  There is no indication that the Veteran's left knee disability warrants an increased rating under any diagnostic code not discussed above.  

The Veteran has not demonstrated flexion limited to 30 degrees or extension limited to 15 degrees to warrant an increased rating under Diagnostic Codes 5260 or 5261.  

The claims folder contains no medical evidence indicating that the Veteran's left knee disability is manifested by ankylosis, dislocation of cartilage, impairment of the tibia and fibula, or symptoms other than those discussed above.  As such, an increased rating cannot be assigned for the left knee under Diagnostic Codes 5256, 5258, or 5262-5263.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5262-5263 (2012).  

As there is documented evidence of arthritis in the left knee, the Board has considered whether the evidence supports a separate 10 percent disability rating for degenerative joint disease of the left knee 38 C.F.R. § 4.71a,  Diagnostic Code 5010.  However, in VAOPGCPREC 9-98 (August 14, 1998), it was explained that that removal of semilunar cartilage may result in complications producing loss of motion, and, consequently, Diagnostic Code 5259 contemplates limitation of motion as a symptom so as to warrant consideration of the holding in Deluca.  Therefore, to award the Veteran a disability rating under Diagnostic Code 5259 and a separate disability rating under Diagnostic Codes 5003 or 5010 would violate 38 C.F.R. § 4.14  and the rule against pyramiding, as these codes all contemplate limitation of motion. 

Further, there is no evidence to support a higher disability rating for the left knee based on consideration of limitation of motion or with functional loss, as the Veteran has not exhibited a sufficient degree of limited flexion or extension, even when accounting for the factors of functional loss.  38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 206.   In this regard, there is no indication that the Veteran experiences any functional loss due to pain, weakness, fatigability, incoordination or pain on movement of a joint to warrant a higher rating.  See 38 C.F.R. §§ 4.40, 4.45 (2012); See also DeLuca, supra.  Significantly, while the VA examiner noted the Veteran's complaints of pain, he indicated that the Veteran did not experience any additional limitation of motion with repetition.  

A rating is also unwarranted under Diagnostic Code 5257 because the Veteran has not been diagnosed with recurrent subluxation or lateral instability.  Although the Veteran reported symptoms of instability of the left knee, the June 2011 VA examiner made a specific finding that the Veteran has no instability in her left knee.  The Veteran's own determination about the stability of her left knee is outweighed by the more probative findings of the June 2011VA examiner, because the examiner's determinations are based on greater medical knowledge and experience.  Winsett v. West, 11 Vet. App. 420 (1998), aff'd 217 F.3d 854 (Fed. Cir. 1999); Guerrieri v. Brown, 4 Vet. App. 467 (1993). 

A higher rating is also unwarranted under Diagnostic Code 5258 because the Veteran has not been diagnosed with dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint.  Although the Veteran has reported episodes of pain, no evidence of dislocated semilunar cartilage is of record. 

Additionally there have been no complaints or findings of any scar tenderness or being unstable or that the scarring described interferes with function.  38 C.F.R. §4.118 Diagnostic Codes 7804, 7805.

Thus, a disability rating in excess of the initial 10 percent cannot be granted for the left knee disorder under any other diagnostic code.

Therefore, the preponderance of the evidence is against the Veteran's claim that he is entitled to an initial evaluation in excess of 10 percent for chondromalacia patella of the left knee status post medial meniscectomy.  See 38 U.S.C.A. § 5107(a) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application.  There is not an approximate balance of evidence.  See generally Gilbert, supra; Ortiz v. Principi, 274 F.3d 1361   (Fed. Cir. 2001).  Assignment of staged ratings has been considered and is not for application.  Hart, supra.


II.  Entitlement to an initial rating in excess of 10 percent for right and left carpal tunnel syndrome for the period prior to October 9, 2012, an initial rating in excess of 30 percent for right carpal tunnel syndrome for the period since October 9, 2012 and an initial rating in excess of 20 percent for left carpal tunnel syndrome for the period since October 9, 2012.

In the August 2006 rating decision, the RO granted service connection and assigned initial noncompensable ratings for carpal tunnel syndrome of the right and left hands, pursuant to Diagnostic Code 8599-8515, effective August 1, 2006. Diagnostic Code 8599-8515.  The hyphenated diagnostic code in this case indicates that an unlisted disease of the peripheral nerves, under Diagnostic Code 8599, was the service-connected disability, and paralysis of the median nerve, under Diagnostic Code 8515, was a residual condition.

In an August 2012 rating decision, the RO increased the Veteran's noncompensable ratings for right and left carpal tunnel syndrome to 10 percent disability evaluations, effective August 1, 2006.  

In a November 2012 rating decision, the RO increased the Veteran's 10 percent disability rating for right carpal tunnel syndrome to a 30 percent disability rating, effective October 9, 2012 and increased the Veteran's 10 percent disability rating for left carpal tunnel syndrome to a 20 percent rating, effective October 9, 2012.  

Under Diagnostic Code 8515, a 10 percent evaluation is prescribed for mild incomplete paralysis of the median nerve of both the major and minor extremities.  Moderate incomplete paralysis of the median nerve warrants a 20 percent evaluation for the minor extremity and a 30 percent evaluation for the major extremity.  Severe incomplete paralysis of the median nerve warrants a 40 percent evaluation for the minor extremity and a 50 percent evaluation for the major extremity.  The term "incomplete paralysis," with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.  When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings are combined with application of the bilateral factor.  38 C.F.R. § 4.124a, Diagnostic Code 8515. 

The words "mild," moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2012).  It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2012). 

Furthermore, neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated at a maximum equal to severe, incomplete, paralysis.  38 C.F.R. § 4.123 (2012).  The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis.  Id.   Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, is to be rated with a maximum equal to moderate incomplete paralysis.  38 C.F.R. § 4.124 (2012). 

In considering the Veteran's claim for higher initial evaluation for her service-connected carpal tunnel syndrome, the Board observes that the Veteran is right-handed, as indicated in the February 2006, June 2011 and October 2012 VA examinations.  The criteria for a major (dominant) joint thus apply for the right wrist.  See 38 C.F.R. § 4.68.

The Veteran underwent a VA examination in February 2006.  She presented with complaints of pain and numbness with the precipitating factors being typing and working.  She had flare-ups multiple times a day that lasted 20 seconds.  No additional limitations were noted.  The examiner noted that on examination all joints had full range of motion.  There was no pain, weakness, fatigue or incoordination following repetitive motion.  Her wrists were normal in appearance and there was no tenderness to palpitation.  On the left, dorsiflexion was 70/70, palmar flexion was 80/80, ulnar deviation was 45/45, radial deviation was 20/20 and muscle strength was 5/5.  The diagnosis was mild bilateral carpal tunnel syndrome.

The Veteran underwent a VA examination in June 2011.  On examination, there was no evidence of pain with motion on the left or right sides.  Bilateral dorsiflexion was from 0 to 70 degrees.  Bilateral palmar flexion was from 0 to 80 degrees.  Bilateral radial deviation was from 0 to 20 degrees.  Bilateral ulnar deviation was from 0 to 40 degrees.  There was no objective evidence of pain following repetitive motion and there were no additional limitations after three repetitions of range of motion.

The Veteran underwent a VA examination in October 2012.  The examiner provided a diagnosis of bilateral carpal tunnel syndrome.  The Veteran reported that she had been prescribed braces on both wrists which seemed to help most of the time.  More recently, she reported that she lost some of her feeling in her right hand and tended to drop items.  She had mild constant pain in the right and left upper extremities.  She had no intermittent pain in the right and left upper extremities.  She had moderate paresthsias and/or dysesthesias and moderate numbness in the right and left upper extremities.  Flexion and extension of both wrists were 5/5 but her right hand grip was 4/5.  She did not have muscle atrophy.  Her reflexes were normal and her sensory examination was normal.  She had no trophic changes attributed to her peripheral neuropathy.  Her Tinel's sign was positive on the right and negative on the left.  The Veteran's left and right radial nerve was normal.  She had moderate incomplete paralysis of the right median nerve and mild incomplete paralysis of the left median nerve.  Her ulnar nerve was normal.  The examiner noted that a March 2006 EMG demonstrated slow conduction velocity for left median motor potential across the carpal tunnel and for the right median sensory potential across the carpal tunnel.  The Veteran's peripheral nerve condition/peripheral neuropathy did not impact her ability to work.  

Period prior to October 9, 2012

The medical evidence of record shows that the Veteran's carpal tunnel syndrome for the period prior to October 9, 2012 was manifested by, at most, mild incomplete paralysis in each arm.  The Veteran was found to have normal sensation to vibration, pain, light touch, and position sense in both upper extremities on examination in February 2006 and June 2011.  While diagnostic testing demonstrates that the Veteran has bilateral carpal tunnel syndrome, there is no objective evidence of record that the symptoms from that disability impact the Veteran in any way prior to October 9, 2012.

As noted above, the February 2006 VA examination indicated that the Veteran's wrists were normal in appearance and there was no tenderness to palpitation.  The examiner also specifically described the Veteran's carpal tunnel syndrome as mild.  On VA examination in June 2011, there was no evidence of pain with motion on the left or right sides.  

Thus, the Veteran's carpal tunnel syndrome, which was objectively asymptomatic prior to October 9, 2012, did not demonstrate severe impact on the Veteran's functionality to warrant a characterization of incomplete paralysis which is more than mild in degree.  The regulations thus direct that the Veteran's carpal tunnel syndrome of the upper extremities should be characterized as being no more than mild in degree.  38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves (2012). Accordingly, the Board finds that ratings in excess of 10 percent are not warranted for either the Veteran's right or left carpal tunnel syndrome for the period prior to October 9, 2012.

Period Since October 9, 2012

After a review of all the evidence, lay and medical, the Board finds that for the period since October 9, 2012, the Veteran's service-connected right and left carpal tunnel syndrome more nearly approximates the criteria for 30 percent for the right and 20 percent for the left under Diagnostic Code 8515.  The evidence shows that the Veteran does not have severe incomplete paralysis of the median nerve.  Additionally, the schedular diagnostic criteria adequately describe the severity of impairment and symptomatology of the Veteran's right and left carpal tunnel syndrome.

For the period since October 9, 2012, the Veteran's right and left carpal tunnel syndrome have been characterized by no more than moderate incomplete paralysis of the median nerve.  In fact, the October 2012 VA examiner specifically determined that the Veteran had moderate incomplete paralysis of the right hand.  The examiner even noted that the Veteran had mild incomplete paralysis of the left hand, which is less than the currently rated 20 percent disability rating as mild incomplete paralysis is characteristic of a 10 percent evaluation.

This examiner's determinations of the Veteran having moderate incomplete paralysis of the right hand and mild incomplete paralysis of the left hand are also consistent with the clinical findings on the VA examination.  Objective evidence does not show difficulties with fine motor activities.  Her grip of the left hand was normal and her grip of the right hand demonstrated only active movement against some resistance (4/5).  Range of motion of the index fingers and the longer fingers were all "normal."  Range of motion of the ring and little finger was normal.  Finally, range of motion of the thumbs and both wrists were normal.  To the extent that the Veteran asserts she drops items or has pain, it does not support the proposition that the median nerve is so damaged that she is incapable of holding items - i.e., that she has complete paralysis as that term is defined in 38 C.F.R. §4.124 , Diagnostic Code 8515.

Additionally, the Veteran did not have muscle atrophy, her reflexes were normal and her sensory examination was normal.  She had no trophic changes attributed to her peripheral neuropathy.  Her ulnar nerve and radial nerves were normal and her peripheral nerve condition/peripheral neuropathy did not impact her ability to work.  

Thus, since October 9, 2012, the Veteran's carpal tunnel syndrome did not demonstrate severe impact on the Veteran's functionality to warrant a characterization of incomplete paralysis which is severe.  The regulations thus direct that the Veteran's carpal tunnel syndrome of the upper extremities should be characterized as being no more than moderate in degree.  38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves (2012).  Accordingly, the Board finds that a rating in excess of 20 percent for left carpal tunnel syndrome and a rating in excess of 30 percent for right carpal tunnel syndrome are not warranted for the period since October 9, 2012.

Therefore, the preponderance of the evidence is against the Veteran's claim that he is entitled to an initial rating in excess of 10 percent for right and left carpal tunnel syndrome for the period prior to October 9, 2012, an initial rating in excess of 30 percent for right carpal tunnel syndrome for the period since October 9, 2012 and an initial rating in excess of 20 percent for left carpal tunnel syndrome for the period since October 9, 2012.  See 38 U.S.C.A. § 5107(a) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application.  There is not an approximate balance of evidence.  See generally Gilbert, supra; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).  Assignment of staged ratings has been considered and is not for application.  Hart, supra.


III.  Entitlement to an initial evaluation in excess of 10 percent for bilateral plantar fasciitis.

In an August 2006 rating decision, the RO granted service connection for bilateral plantar fasciitis at a noncompensable disability rating, effective August 1, 2006, under Diagnostic Code 5276.

As noted above, in an August 2012 rating decision, the RO increased the Veteran's noncompensable rating for bilateral plantar fasciitis to a 10 percent disability rating, effective August 1, 2006.  

Disabilities of the foot are generally evaluated under Diagnostic Codes 5276 through 5284.  See 38 C.F.R. § 4.71a (2012).  

Under Diagnostic Code 5276, a noncompensable rating is assigned for mild flatfoot with symptoms relieved by built-up shoe or arch support.  38 C.F.R. § 4.71a, Diagnostic Code 5276.  Moderate flatfoot with weight-bearing line over or medial to the great toe, inward bowing of the atendo achillis, pain on manipulation and use of the feet, bilateral or unilateral, is rated 10 percent disabling.  Id.  Severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, is rated 30 percent disabling for bilateral disability.  Id.  A 50 percent rating is awarded where bilateral flatfeet are manifested by pronounced flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo achillis on manipulation, that is not improved by orthopedic shoes or appliances.  Id.

Diagnostic Code 5284, Foot Injuries, other, provides a 10 percent rating for moderate symptoms, a 20 percent rating for moderately severe, a 30 percent rating for severe, and a 40 percent rating for loss of use of the foot.

The terms mild, 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, and all evidence must be evaluated in deciding rating claims.  38 C.F.R. §§ 4.2, 4.6 (2012).

After a careful review of the record, the Board finds that a higher initial rating is not warranted for the Veteran's plantar fasciitis of either foot. 

The Veteran underwent a VA examination in February 2006.  She reported that her symptoms were pain noted in her heels which occurred with exercise and upon awakening.  She had flare-ups twice a day which lasted 3 minutes.  No additional limitations were noted.  All joints had full range of motion.  There was no pain, weakness, fatigue or incoordination following repetitive motion.  No palpable swelling, joint effusion or tenderness was noted.  Plantar fascia tenderness was however noted.  The diagnosis was plantar fasciitis.

The Veteran underwent a VA examination in June 2011.  Her symptoms included pain and swelling while standing and walking.  The pain was at the bottom of the heel and the swelling was of the whole foot.  There were no flare-ups of foot joint disease.  Functional limitations may include standing for 10 to 30 minutes with rest for 3 to 8 hours per day.  She could walk up to a mile.  She did not use assistive devices and occasionally used shoe inserts.  On examination, there was no evidence of painful motion, swelling, tenderness, instability, weakness or abnormal weight bearing.  There was no muscle atrophy and the Veteran had a normal gait.  The diagnosis was a history of plantar fasciitis of both feet.  The plantar fasciitis has severe effects on shopping, sports, exercise and recreation.  There were moderate effects on chores and travelling and only mild effects on feeding, bathing dressing, toileting, grooming and driving.  There were no significant occupational effects.  The problems associated with the diagnosis were pain and swelling.

Considering the evidence, the Board finds that her right and left foot disorders have not more nearly approximated moderately severe disability of either foot.  Notably, the VA examinations indicated that there was no evidence of painful motion, swelling, tenderness, instability, weakness or abnormal weight bearing and the Veteran had a normal gait.  While the June 2011 VA examiner noted that the Veteran's plantar fasciitis had severe effects on shopping, sports, exercise and recreation, no explanation was given for that finding, and it is inconsistent with the objective evidence of record.  Additionally, the plantar fasciitis was found to only have a mild and moderate effects on chores, travelling, feeding, bathing dressing, toileting, grooming and driving   Thus, an initial rating in excess of 10 percent is not warranted for either foot under Diagnostic Code 5284. 

The Board notes that the June 2011 VA examination showed some pain at the bottom of the Veteran's heels.  Tenderness of the plantar surfaces of the feet is a criterion of Diagnostic Code 5276 for pes planus.  To the extent that the Veteran had pain on manipulation and use of the feet, that manifestation supports no more than a 10 percent rating under that code section.  Without objective evidence of pain being accentuated on manipulation and use, a higher 20 percent rating is not warranted.  There was also no objective evidence of marked deformity, such as pronation or abduction, or indication of swelling on use, both of which are required for a higher 20 percent rating under Diagnostic Code 5276. 

The Board has also considered whether any other applicable rating criteria may enable a higher rating.  However, after review, the Board finds that no other diagnostic code provides for a higher or separate rating.  Without objective evidence of flatfoot, weak foot, claw foot (pes cavus), anterior metatarsalgia (Morton's disease), hallux rigidus, hammer toe, or malunion or nonunion of the tarsal or metatarsal bones in either foot, a higher or separate rating under Diagnostic Code 5277, 5278, 5279, 5281, 5282, or 5283 is not warranted. 

Therefore, the preponderance of the evidence is against the Veteran's claim that he is entitled to an initial evaluation in excess of 10 percent for bilateral plantar fasciitis.  See 38 U.S.C.A. § 5107(a) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application.  There is not an approximate balance of evidence.  See generally Gilbert, supra; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).  Assignment of staged ratings has been considered and is not for application.  Hart, supra.


IV.  Entitlement to an initial compensable evaluation for allergic rhinitis.

In an August 2006 rating decision, the RO granted service connection for allergic rhinitis at a noncompensable disability rating, effective August 1, 2006, under Diagnostic Code 6522.

Under Diagnostic Code 6522, a 10 percent rating applies where the evidence demonstrates allergic or vasomotor rhinitis, without polyps, but with greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side.  A 30 percent rating applies where the evidence demonstrates polyps.  38 C.F.R. § 4.97, Diagnostic Code 6522 (2012).

The Veteran underwent a VA examination in February 2006.  The Veteran presented with complaints of headaches and congestion.  She had daily flare-ups but no additional limitations were noted.  The diagnosis was allergic rhinitis.

The Veteran underwent a VA examination in June 2011.  She presented with a history of a runny nose, headaches, sneezing, colds and coughing.  She noted that since the onset of her condition, it had gotten progressively worse.  She was currently taking Allegra D as needed.  There was no history of hospitalization, trauma, neoplasm, nasal allergy or osteomyelitis.  There was a history of sinusitis.  There was no history of incapacitating episodes.  There was a history of non-incapacitating episodes as she had these episodes 6 to 8 times a year for 3 days.  Her current rhinitis symptoms were sneezing and her current sinus symptoms were sinus pain.  She occasionally had breathing difficulty.  There was no speech difficulty.  On examination, there was no evidence of sinus disease and no soft palate abnormality.  There were no signs of nasal obstruction, no nasal polyps present, no septal deviation, no permanent hypertrophy of turbinates from bacterial rhinitis, no rhinoscleroma, no tissue loss, scarring or deformity of the nose, and no evidence of Wegener's granulomatosis or granumatosis infection.  The current appearance of the larynx was normal.  The diagnosis was history of allergic rhinitis.  The problem associated with the diagnosis was a runny nose.  There were no significant effects on the Veteran's usual occupation and no effects on the problem on usual daily activities.

The Board finds no objective evidence that would warrant a compensable rating for the Veteran's allergic rhinitis.  As noted above, under Diagnostic Code 6522, a 10 percent rating requires a greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side.  While the Board acknowledges the Veteran's complaints of a runny nose, headaches and congestion, objective examinations have not found obstruction in either nasal passage.  In addition, the medical evidence demonstrated that there has never been a finding of nasal polyps.  As such, a compensable rating is not warranted under Diagnostic Code 6522.

Therefore, the preponderance of the evidence is against the Veteran's claim that she is entitled to an initial compensable evaluation for allergic rhinitis.  See 38 U.S.C.A. § 5107(a) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application.  There is not an approximate balance of evidence.  See generally Gilbert, supra; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).  Assignment of staged ratings has been considered and is not for application.  Hart, supra.



V.  Extraschedular Rating

The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b) (1), for exceptional cases where scheduler evaluations are found to be inadequate.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Under Thun v. Peake, 22 Vet App 111 (2008), there is a three- step inquiry for determining whether a Veteran is entitled to an extraschedular rating.  First, the Board must first 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 Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

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 evaluation for the Veteran's service-connected chondromalacia patella of the left knee status post medial meniscectomy, bilateral carpal tunnel syndrome, bilateral plantar fasciitis and allergic rhinitis is inadequate.  A comparison between the level of severity and symptomatology of the Veteran's disabilities with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology for service-connected chondromalacia patella of the left knee status post medial meniscectomy, bilateral carpal tunnel syndrome, bilateral plantar fasciitis and allergic rhinitis.  There is no evidence in the medical records of an exceptional or unusual clinical picture.  The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b) (1) is not warranted.


ORDER

Entitlement to an initial evaluation in excess of 10 percent for chondromalacia patella of the left knee status post medial meniscectomy is denied. 

Entitlement to an initial rating in excess of 10 percent for right carpal tunnel syndrome for the period prior to October 9, 2012 is denied. 

Entitlement to an initial rating in excess of 10 percent for left carpal tunnel syndrome for the period prior to October 9, 2012 is denied.

Entitlement to an initial rating in excess of 30 percent for right carpal tunnel syndrome for the period since October 9, 2012 is denied.

Entitlement to an initial rating in excess of 20 percent for left carpal tunnel syndrome for the period since October 9, 2012 is denied.

Entitlement to an initial rating in excess of 20 percent for left carpal tunnel syndrome for the period since October 9, 2012.

Entitlement to an initial evaluation in excess of 10 percent for bilateral plantar fasciitis is denied. 

Entitlement to an initial compensable evaluation for allergic rhinitis is denied. 





REMAND

Following a review of the Veteran's claims file, the Board finds that further development is required prior to the adjudication of the claims for entitlement to service connection for a right knee disability, to include as secondary to the service-connected chondromalacia patella of the left knee and for entitlement to an initial rating in excess of 10 percent for spondylosis of the lumbar spine.

Regarding her service connection claim, the Veteran seeks service connection for a right knee disability, on a direct and secondary basis.

The Veteran was afforded with a VA examination for her right knee disability in June 2011, pursuant to the Board's remand issued in May 2011.  In the Veteran's June 2011 VA examination, the examiner diagnosed the Veteran with a history of bilateral knee sprains.  In a December 2012 VA addendum opinion, the examiner determined that the Veteran's right knee torn meniscus condition was less likely as not caused by service as the tear was diagnosed after her separation from service.  Additionally, the examiner opined that the Veteran's right knee torn meniscus condition was less likely as not caused by or as secondary to the Veteran's service-connected left knee condition as a left knee condition cannot cause a right knee meniscal tear.

However, while the examiner determined that the Veteran's right knee disability was not due to her service or her service-connected left knee disability, the examiner did not address whether the Veteran's service-connected left knee disability has aggravated her right knee disability.  

The Board notes that 38 C.F.R. § 3.310(a) permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability.  See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).

As such the Board finds that the evidence currently of record is insufficient to resolve the claim for service connection for a right knee disability, to include as secondary to the service-connected chondromalacia patella of the left knee.

Accordingly, the Board finds that the physician who conducted the June 2011 VA examination and rendered the December 2012 addendum opinion should be requested to submit an addendum opinion discussing whether or not the Veteran's right knee disability was aggravated by her service-connected chondromalacia patella of the left knee.

Regarding the Veteran's claim for an initial rating in excess of 10 percent for spondylosis of the lumbar spine, the Board notes that the Veteran underwent a VA examination in February 2006 which found that no sensory deficits were noted.  The Veteran most recently underwent a VA examination in June 2011.  While the sensory examination was normal, the Veteran reported symptoms of urinary urgency, urinary frequency and voiding twice per night.  The examiner noted that the etiology of these symptoms was not unrelated to the claimed disability.  Such suggests that these symptoms warrant the assignment of separate compensable ratings.  Notably, if urinary symptoms are considered as associated with a lumbar spine disability, the Veteran might be entitled to separate compensable ratings as any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, must be evaluated separately under the appropriate diagnostic code. 

However, notwithstanding the odd double negative opinion of the June 2011 VA examiner, the Board notes that the remainder of the record largely weighs against a relationship.  The previous VA examination in February 2006 and VA treatment records have made no association between urinary symptoms and her back disability.  Additionally, the Veteran is also service-connected for residuals, scarring, status post partial mastectomy and catheter insertion.  She notably testified that her catheter was from her surgery as she could not "drain normally through her right side".  

Thus, given the unusual nature in how the June 2011 opinion was worded, the lack of rationale for the June 2011 opinion, and that there is a significant amount of negative evidence, an opinion is deemed necessary.


Accordingly, the case is REMANDED for the following action:

1.  The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated her for the disabilities on appeal.  After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder.  

Appropriate efforts must be made to obtain all available VA treatment records.  All attempts to procure records should be documented in the file.  If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file.  The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow her the opportunity to obtain and submit those records for VA review.

2.  The RO should arrange for the same examiner who conducted the June 2011 VA examination and provided the December 2012 VA addendum opinion, if possible, to review the claims folder and determine whether the Veteran's right disability is aggravated by her service-connected chondromalacia patella of the left knee.  If the June 2011 examiner is unavailable, the file should be referred to another similarly qualified medical professional. 

The examiner should furnish an opinion as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran's right knee disability is aggravated by her service-connected chondromalacia patella of the left knee disability.  If the examiner finds that the Veteran's right knee disability has been worsened by her service-connected chondromalacia patella of the left knee disability, to the extent feasible, the degree of worsening should be identified. 

The examiner should fully describe the objective findings that support his or her conclusions.  The claims folder should be made available to the examiner in conjunction with the opinion request, and the examiner must indicate on the report that such a review was undertaken.  The rationale for all opinions expressed should be set forth.  If an opinion cannot be formed without resorting to mere speculation, the examiner should so state and provide a reason for such conclusion. 

3.  The Veteran should also be scheduled for a VA examination before an appropriate physician to determine the current level of severity of her service-connected lumbar spine disability.  The Veteran's claims file and a copy of this remand must be provided to the examiner for review in conjunction with this examination, and the examination report should reflect review of these items.  All necessary tests and studies should be performed, and the examiner should describe in detail all symptomatology associated with the Veteran's lumbar spine disability. 

The examiner should also render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the lumbar spine.  If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran likely experiences functional loss due to pain or any of the other symptoms noted above during flare-ups and/or with repeated use. 

The examiner should also indicate whether the Veteran suffers from intervertebral disc syndrome, and if so, whether this condition has resulted in incapacitating episodes. 

The examiner should also state whether the Veteran experiences any neurological complications stemming from herlow back disability.  If neurological complications/symptoms are identified, the examiner should identify the affected nerve group and state whether the in mild, moderate, moderately severe, or severe incomplete paralysis.  The examiner should also comment on whether the Veteran experiences urinary symptoms due to her back disability.  Those symptoms should be described in detail.

The examiner should also provide an opinion concerning the impact of the Veteran's service-connected lumbar spine disability on her ability to work. 

4.  Thereafter, readjudicate the issues on appeal.  If any benefit sought on appeal remains denied, the Veteran and her representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond.  The case should then be returned to the Board for further appellate review, if otherwise in order.


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

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


______________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs