Citation Nr: 1324174 Decision Date: 07/30/13 Archive Date: 08/07/13 DOCKET NO. 10-01 648 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Whether new and material evidence has been received to reopen service connection for back disorder, claimed as secondary to the service-connected knee disabilities. 2. Entitlement to an increased rating in excess of 20 percent for tricompartmental osteoarthritis of the right knee. 3. Entitlement to an increased rating in excess of 20 percent for tricompartmental osteoarthritis of the left knee. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1976 to August 1979. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey which, in pertinent part, denied the reopening of service connection for back disorder and continued the 20 percent disability ratings for tricompartmental osteoarthritis of the right and left knees. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. In November 2009 and January 2010, the Veteran submitted notices of disagreement for the issue of an increased rating in excess of 30 percent for mood disorder. In an April 2010 statement of the case (SOC), the RO increased the evaluation to 50 percent disabling for the entire increased rating period. Although the Veteran submitted a June 2010 statement, via a VA Form 21-4138, requesting for the initiation of a claim for increase evaluation for mood disorder, the Board finds that the June 2010 correspondence by the Veteran does not constitute a substantive appeal for that issue nor was a VA Form 9 properly filed after issuance of the April 2010 SOC. See 38 C.F.R. § 20.202 (2012). As a result, the issue of an increased rating in excess of 50 percent for mood disorder is not currently before the Board for appellate consideration. It appears that the issues of an increased rating in excess of 50 percent for mood disorder and an effective date earlier than December 3, 2009 for the grant of service connection for right and left knee instability have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action (if needed). FINDINGS OF FACT 1. All relevant evidence necessary to decide the Veteran's appeal has been obtained. 2. Service connection claim for back disorder, claimed as secondary to the service-connected knee disabilities, was denied in a February 2007 rating decision by the RO; and the Veteran was notified of this action and of his appellate rights, filed a timely notice of disagreement, was issued a SOC, but did not file a timely substantive appeal. 3. The evidence received since the February 2007 rating decision, regarding service connection for back disorder, claimed as secondary to the service-connected knee disabilities, does not relate to an unestablished fact necessary to substantiate the claim. 4. For the entire increased rating period, the service-connected tricompartmental osteoarthritis of the right and left knees more closely approximate a manifestation of degenerative arthritis, by x-ray evidence, full extension to 0 degrees, painful motion, tenderness, clicking, buckling, and locking, and not productive of extension to 20 degrees or more, flexion to 15 degrees or less, ankylosis, or impairment of the tibia and fibula. CONCLUSIONS OF LAW 1. The February 2007 rating decision that denied service connection for back disorder, claimed as secondary to the service-connected knee disabilities, became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). 2. New and material evidence has not been received since the February 2007 rating decision to reopen service connection for back disorder, claimed as secondary to the service-connected knee disabilities. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. The criteria for an increased disability rating in excess of 20 percent for tricompartmental osteoarthritis of the right knee have not been met for any period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, Diagnostic Codes 5010-5261 (2012). 4. The criteria for an increased disability rating in excess of 20 percent for tricompartmental osteoarthritis of the left knee have not been met for any period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, Diagnostic Codes 5010-5261 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence to Reopen Service Connection In a February 2007 rating decision, the RO denied service connection, in pertinent part, for back disorder, claimed as secondary to the service-connected knee disabilities. The RO stated the evidence does not show that a low back condition is related to the service-connected condition of arthritis of the left knee, nor is there any evidence of this disability during military service. The Veteran was notified of the February 2007 rating decision and of his appellate rights, filed a timely July 2007 notice of disagreement, the RO issued a December 2007 SOC, but the Veteran did not file a timely substantive appeal. As a result, the Board finds that the rating decision became final for this claim on appeal. See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. A claim that has been previously denied may be reopened if new and material evidence is received with respect to that claim. If the claim is reopened, it will be reviewed on a de novo (new) basis, with consideration given to all the evidence of record. 38 U.S.C.A. §§ 5108, 7105; Evans v. Brown, 9 Vet. App. 273, 282 (1996); Manio v. Derwinski, 1 Vet. App. 140 (1991). New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). The evidence that is considered to determine whether new and material evidence has been received is the evidence submitted since the last final denial of the appellant's claim on any basis. Evans, 9 Vet. App. at 273. This evidence is presumed credible for the purposes of reopening the appellant's claim, unless it is inherently false or untrue, or if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992); see also Robinette v. Brown, 8 Vet. App. 69 (1995). New and material evidence can be neither cumulative (new material of the same kind) nor redundant (duplicate) of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); see Shade v. Shinseki, 24 Vet. App. 110 (2010) (finding that the language of 38 C.F.R. § 3.156(a) creates a low threshold, with the phrase "raises a reasonable possibility of substantiating the claim" enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened). The evidence of record at the time of the February 2007 rating decision, pertaining to the claim on appeal, included the Veteran's service treatment records, VA outpatient treatment records from August 2003 to November 2005, and October 2006 VA spine examination report, which showed the Veteran's assessment of chronic low back pain. The evidence of record associated with the claims file since the February 2007 rating decision, pertaining to the claim on appeal, includes VA outpatient treatment records from October 2007 to November 2007 and June 2008 to June 2010, February 2010 private magnetic resonance imaging (MRI) report of the lumbar spine, and November 2007 VA examination report. The Board notes such evidence does not include relevant official service department records, and there was no evidence received prior to the expiration of the appeal period pertaining to this claim. Therefore, 38 C.F.R. § 3.156(b) and 38 C.F.R. § 3.156(c) are not applicable. Such evidence was also not previously associated with the claims file and is considered new; however, is not material because does not relate to an unestablished fact necessary to substantiate the claim on appeal. The November 2007 VA examination provides the following medical opinion: "[t]his Veteran has chronic low back pain from multilevel degenerative disc disease and facet joint osteoarthritis. His current back pain is less likely as not directly a result of his service-connected bilateral knee condition." The examiner explained that "[t]here is no significant gait deviation noted during today's examination [and] [b]eing overweight plays a significant role in causing degenerative changes in his lumbar spine." The Board finds this negative opinion is adverse to the Veteran's claim on appeal and such adverse evidence cannot be used as the basis for reopening. See Villalobos v. Principi, 3 Vet. App. 450, 452 (1992) (holding that evidence which is unfavorable to a claimant's case may not 'trigger a reopening' of the claim). Moreover, the February 2010 private MRI report of the lumbar spine and VA outpatient treatment records are redundant of the evidence already of record which show the Veteran's has a current back disorder, thus cannot be used to reopen the claim on appeal. In this regard, it is important for the Veteran to understand that treatment for his back disability does not provide material evidence as there has never been a question that he has a back disability. The question is whether this disability is related to service or his knees. As a result, the Board finds that the newly received evidence does not relate to an unestablished fact necessary to substantiate the claim on appeal, thus is not new and material and the claim is not reopened. 38 C.F.R. § 3.156(a). Service-Connected Right and Left Knee Disabilities Disability evaluations are determined by the application of the schedule of ratings which is based on average impairment of earning capacity. See U.S.C.A. § 1155 (West 2002). Separate diagnostic codes identify the various disabilities. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. 38 C.F.R. § 4.2 (2012); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims on appeal. Pursuant to the rating criteria for the knee and leg, the service-connected tricompartmental osteoarthritis of the right and left knees are each rated at 20 percent disabling for the entire increased rating period on appeal from February 22, 2006 to the present. See 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5261; see also 38 C.F.R. § 4.27. Arthritis, due to trauma and substantiated by x-ray findings, is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. In the absence of limitation of motion, a 20 percent evaluation is assigned where there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. Id. In this case, the Board finds that the Veteran's service-connected tricompartmental osteoarthritis of the right and left knees have been assigned the maximum schedular rating available under Diagnostic Code 5010. Therefore, the Board considers whether a higher rating is warranted under Diagnostic Code 5261, which provides that extension limited to 20 degrees warrants a 30 percent evaluation, extension limited to 30 degrees warrants a 40 percent evaluation, and extension limited to 45 degrees warrants a 50 percent evaluation. 38 C.F.R. § 4.71a. Normal range of motion for the knee is from 0 degrees extension to 140 degrees flexion. See 38 C.F.R. § 4.71, Plate II (2012). In November 2007 and December 2008, the Veteran underwent VA examinations for the joints by the same VA examiner. The Veteran complained of constant pain in the knees, reported the knees click and buckle, and denied locking of the knees. He did not report additional limitation following repetitive use or during flare-ups. The Veteran exhibited limited forward flexion of the right knee to 85 degrees and of the left knee to 75 degrees in November 2007 and bilateral flexion to 85 degrees in December 2008. For both knees, there was increased pain and no change in degrees after repetitive testing, tenderness to palpation, negative anterior drawer and Lachman tests, and no findings of fatigue, weakness, or lack of endurance. With regard to joint effusion, there were no findings in November 2007 and a small amount noted in December 2008. The examiner also reported the Veteran uses a cane, knee sleeve, and is independent in activities of daily living. Furthermore, the Veteran exhibited a mildly antalgic gait with assistance of a straight cane in November 2007, and x-ray findings showed tricompartmental degenerative joint changes. At the December 2009 VA examination for the joints, the Veteran reiterated daily pain, buckling, pain, and now locking of the knees. He is currently in physical therapy and denied any problems with repetitive use. The Veteran exhibited a slow, antalgic, and unsteady gait, use of a cane and bilateral knee braces, severe varus deformity bilaterally, and swelling. He showed limited flexion to 100 degrees of the right knee and to 95 degrees of the left knee, bilateral extension to 0 degrees, and pain throughout. After repetitive motion, there was no additional loss of joint function due to pain, fatigue, or lack of endurance. For both knees, there were findings of tenderness, positive patellar grind test, negative McMurray's sign, and normal motor strength, and x-ray findings showed tricompartmental osteoarthritis. Private and VA outpatient treatment records during the entire increased rating period on appeal reveal the Veteran's ongoing complaints and treatment for bilateral knee pain. For the entire increased rating period on appeal, the Board finds that the service-connected tricompartmental osteoarthritis of the right and left knees more closely approximate a manifestation of degenerative arthritis, by x-ray evidence, full extension to 0 degrees, painful motion, tenderness, clicking, buckling, and locking, and not productive of extension to 20 degrees or more, flexion to 15 degrees or less, ankylosis, or impairment of the tibia and fibula. Service connection has been granted for right knee instability and left knee instability, each evaluated at 10 percent disabling, effective December 3, 2009. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. The evidence of record, as discussed above, also does not indicate ankylosis of either knee, limitation of flexion to 15 degrees of either knee, nor impairment of the tibia and fibula to warrant disability ratings in excess of 20 percent under additional diagnostic codes pertaining to the knee and leg. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5260, 5262. With respect to the possibility of higher ratings under 38 C.F.R. §§ 4.40, 4.45, the Board has considered whether an evaluation in excess of 20 percent could be assigned on the basis of functional loss due to the Veteran's service-connected knee disabilities. See DeLuca, 8 Vet. App. at 204-05; VAOPGCPREC 36-97, 63 Fed. Reg. 31, 262 (1998). In light of the evidence of record, as discussed above, the Board finds that an evaluation in excess of the currently assigned 20 percent due to functional loss is not warranted. The Veteran's complaints of clicking, buckling, and locking, as well as objective findings of painful motion are contemplated in the currently assigned 20 percent ratings, and the Veteran denied any additional limitation following repetitive use or during flare up at the VA examinations. Moreover, the entire disability picture of the service-connected knee disabilities does not demonstrate that an evaluation in excess of 20 percent is warranted based on application of 38 C.F.R. §§ 4.40, 4.45, and DeLuca, 8 Vet. App. at 202. The Board has considered all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, with respect to the claim as required by the Court. See Schafrath, 1 Vet. App. at 594. However, after careful review of the available diagnostic codes and the lay and medical evidence of record, the Board finds there are no other diagnostic codes that provide a basis to assign a rating higher than the currently assigned 20 percent evaluations for the service-connected right and left knee disabilities on appeal for any period. The Board considers the reported the Veteran's reported history of symptomatology regarding these service-connected disabilities and acknowledges that he is competent to report such symptoms because this requires only personal knowledge as it comes through ones senses. Layno, 6 Vet. App. at 470. However, the Veteran is not competent to identify a specific level of the disabilities on appeal according to the appropriate diagnostic codes. In this case, such competent evidence concerning the nature and extent of the service-connected knee disabilities has been provided in the medical evidence of record. As such, the Board finds these records to be more probative than the Veteran's subjective evidence of complaints of increased symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The issue of a total disability rating based on individual unemployability (TDIU) is currently not on appeal before the Board as the issue was denied by the RO in an October 2010 rating decision and the Veteran did not file a timely appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Simply stated, the RO addressed this issue fully and the Veteran did not indicate disagreement with the finding. Even under Rice the Board sees no basis to find that the Veteran is in disagreement with a clear finding of the RO. An extra-schedular rating may be provided in exceptional cases. 38 C.F.R. § 3.321 (2012). The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 for completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. In this case, the Board finds that the schedular rating criteria adequately contemplate and describe the symptoms and impairment caused by the service-connected tricompartmental osteoarthritis of the right and left knees. A rating in excess of the 20 percent evaluations currently assigned are provided for certain manifestations of the service-connected disabilities at issue, but the lay and medical evidence, as discussed in detail above, reflect that those manifestations are not present in this case. Additionally, there is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards. For these reasons, referral for extra-schedular consideration for the service-connected disabilities on appeal is not required. In this regard, it is important for the Veteran to understand that he is currently receiving, in total, about a 60% evaluation for his knees, a very significant disability evaluation in which it is expected that he would have many of the problems he has cited (if he did not, there would be no basis for two 20% evaluations along with two 10% evaluations, let alone a higher evaluation) which very generally indicates a 60% reduction in industrial capacity for the Veteran overall. In this regard, not all of the evidence of record supports the current evaluation. However, when taking into consideration the Veteran's complaints, the current findings can be justified, but nothing more. For these reasons and bases discussed above, and after fully considering all the lay and medical evidence regarding the service-connected disabilities for the entire rating period, the Board finds that the preponderance of the evidence is against increased disability ratings in excess of 20 percent for tricompartmental osteoarthritis of the right and left knees for any period. 38 C.F.R. §§ 4.3, 4.7. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The Board finds that the VCAA notice requirements have been satisfied by a November 2008 letter. In this letter, VA informed the Veteran that in order to substantiate a claim for service connection, the evidence needed to show he had a current disability, a disease or injury in service, and evidence of a nexus between the post service disability and the disease or injury in service, which was usually shown by medical records and medical opinions. VA also informed the Veteran that in order to substantiate a claim for an increased evaluation for his service-connected knee disabilities, the evidence must show that such disabilities have gotten worse. As to informing the Veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf, VA informed the Veteran it had to obtain any records held by any federal agency. This letter also informed the Veteran that on his behalf VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. Finally, the letter told the Veteran that he could obtain private records himself and submit them to VA. VCAA notice must also include the basis for the denial in the prior decision and VA must respond with a notice letter that describes what evidence would be necessary to substantiate the element(s) required to establish service connection that was found insufficient in the previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). The question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied. See Evans v. Brown, 9 Vet. App. 273, 282 (1996) (holding evidence is material if it is relevant to and probative of an issue that was a specified basis for the last final disallowance). In the November 2008 letter, the Veteran was apprised of the basis for the denial in the prior decision and the information necessary to reopen the claim for back disorder, claimed as secondary to the service-connected knee disabilities, on appeal. The VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the November 2008 letter included the type of evidence necessary to establish a disability rating and effective date. Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the claims on appeal, the evidence of record includes the Veteran's service treatment records, VA outpatient treatment records, private treatment records, and VA examination reports dated October 2006, November 2007, December 2008, and December 2009. The VA examiners reviewed the Veteran's claims file and medical history, recorded pertinent examination findings, and provided conclusions with supportive rationale. The Board notes that the VA examination reports are probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board acknowledges that the Veteran's most recent VA examination, in connection with the service-connected knee disabilities, was approximately four years ago. Nevertheless, an additional VA examination is not warranted in this case because the evidence of record does not indicate that these service-connected disabilities have become more severe since the December 2009 VA examination based on a detailed review of the evidence as a whole and consideration of the findings within the current evaluations. A VA examination is not warranted without new and material evidence being submitted. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claims on appeal. The evidence of record provides sufficient information to adequately evaluate the claims, all obtainable evidence identified by the Veteran relative to the claims has been obtained and associated with the claims file, and the Board is not aware of the existence of any additional relevant evidence which was not obtained. Therefore, no further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). ORDER As new and material evidence has not been received, service connection for back disorder, claimed as secondary to the service-connected knee disabilities, is not reopened; the appeal is denied. An increased rating in excess of 20 percent for tricompartmental osteoarthritis of the right knee is denied. An increased rating in excess of 20 percent for tricompartmental osteoarthritis of the left knee is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs