Citation Nr: 1324472 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 07-20 861 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a right knee disorder, to include as secondary to a service-connected left knee disability. 2. Entitlement to a compensable disability evaluation for a right ankle disability prior to January 31, 2011, and a disability evaluation in excess of 10 percent thereafter. 3. Entitlement to a compensable disability evaluation for a left ankle disability prior to January 31, 2011, and a disability evaluation in excess of 10 percent thereafter. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. M. Gillett, Counsel INTRODUCTION The Veteran served on active duty from January 1988 to October 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2005 rating decision from the Montgomery, Alabama Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the Veteran's applications to reopen service connection for left and right knee disorders, and his claims for increased ratings for right and left ankle disabilities. In April 2010, the Veteran and his authorized representative appeared at a hearing held before the undersigned in Montgomery, Alabama (Travel Board hearing). A transcript of that hearing has been associated with the claims file. In an October 2010 Decision and Remand, the Board reopened the claims for service connection for right and left knee disorders, and remanded the reopened claims for service connection and the claims for increased ratings to the Appeals Management Center (AMC) for additional development. As will be explained below, the Board finds that the AMC did not fully comply with the Board's October 2010 Remand requests regarding the provision of a VA medical examination to determine the nature and etiology of the Veteran's claimed right knee disorder. Therefore, a remand will be necessary for that issue. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders). As the record indicates that the AMC substantially complied with the Board's requests regarding the issues of increased ratings for the Veteran's respective ankle disabilities, the Board will proceed to adjudicate those issues. In a November 2010 rating decision, the AMC granted service connection for a left knee disorder. As the November 2010 rating decision acted as a full grant of the Veteran's claim on appeal, the issue of service connection for a left knee disorder is not in appellate status, and is not before the Board. In a December 2011 rating decision, the AMC partially granted the Veteran's claims for increased ratings for right and left ankle disabilities, assigning respective 10 percent ratings for both disabilities, effective January 31, 2011. Applicable law mandates that when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). The issue of service connection for a right knee disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. For the period prior to January 31, 2011, the Veteran's right ankle disability was manifested by symptomatology more nearly approximating painful motion of the ankle; but not symptomatology more nearly approximating moderate limitation of motion of the ankle. 2. For the period from January 31, 2011, the Veteran's right ankle disability was manifested by symptomatology more nearly approximating marked limitation of motion of the ankle, with range of dorsiflexion limited to 10 degrees, and plantar flexion to 10 degrees. 3. For the period prior to January 31, 2011, the Veteran's left ankle disability was manifested by symptomatology more nearly approximating painful motion of the ankle; but not symptomatology more nearly approximating moderate limitation of motion of the ankle. 4. For the period from January 31, 2011, the Veteran's left ankle disability was manifested by symptomatology more nearly approximating marked limitation of motion of the ankle, with range of dorsiflexion limited to 12 degrees, and plantar flexion to 10 degrees. CONCLUSIONS OF LAW 1. For the period prior to January 31, 2011, the criteria for a rating of 10 percent, but no greater, for the Veteran's right ankle disability have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.20, 4.27, 4.40, 4.45, 4.71a, Diagnostic Code 5299-5271 (2012). 2. For the period from January 31, 2011, the criteria for a rating of 20 percent, but no greater, for the Veteran's right ankle disability have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.20, 4.27, 4.40, 4.45, 4.71a, Diagnostic Code 5299-5271 (2012). 3. For the period prior to January 31, 2011, the criteria for a rating of 10 percent, but no greater, for the Veteran's left ankle disability have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.20, 4.27, 4.40, 4.45, 4.71a, Diagnostic Code 5299-5271 (2012). 4. For the period from January 31, 2011, the criteria for a rating of 20 percent, but no greater, for the Veteran's left ankle disability have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.20, 4.27, 4.40, 4.45, 4.71a, Diagnostic Code 5299-5271 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Introductory Matters In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R."), and the precedential rulings of the United States Court of Appeals for the Federal Circuit (Federal Circuit) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d) (West 2002 & Supp. 2012); see also 38 C.F.R. § 19.7 (2012) (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 ("VCAA") describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify a veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice must be provided to the veteran prior to the initial adjudication of his or her claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In a claim for an increased rating, the VCAA requirement is generic notice: the type of evidence needed to substantiate the claim, which consists of evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). VA satisfied its duty to notify the Veteran by issuing notice letters in June 2005 and November 2006. In the June 2005 notice letter, VA informed the Veteran about the information and evidence not of record that was necessary to substantiate the claims; the information and evidence that VA would seek to provide; and the information and evidence the Veteran was expected to provide. In the November 2006 letter, the RO provided the information regarding the assignment of ratings and effective dates. In this case, VA sent the November 2006 notice letter after initially deciding the Veteran's claim; the November 2006 letter was thus untimely. VA cured this timing defect by readjudicating the appellant's claim in a Supplemental Statement of the Case (SSOC) issued in March 2009. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). The duty to assist provisions of the VCAA have been met. The claims file contains service treatment records, reports of post-service medical treatment, and reports of VA medical examinations provided in November 2005 and January 2011. The examinations were adequate because they were based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims folder, and appropriate diagnostic tests. In October 2010, the Board remanded the Veteran's claims to the AMC for the procurement of any outstanding treatment records and the provision of a VA medical examination to determine the current severity of the Veteran's ankle disabilities. The record indicates that the AMC procured all outstanding treatment records and provided the Veteran with a VA medical examination in January 2011. After a review of all evidence and a proper examination, the January 2011 VA examiner provided findings regarding the severity of the Veteran's ankle disabilities to allow for the rating of the disabilities. VA has fulfilled its duty to assist the Veteran by procuring the treatment records, and providing the Veteran with a factually informed and medically supported VA medical examination. Therefore, the Board finds that the AMC substantially complied with the Board's Remand directives. See Stegall, 11 Vet. App. at 271; Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran has been given ample opportunity to present evidence and argument in support of his claims. The Veteran has not provided VA with sufficient information regarding any additional evidence. or authorization and consent forms that would allow for the procurement of any additional evidence not already on file. Therefore, pursuant to 38 C.F.R. § 3.655 (2012), all relevant evidence necessary for an equitable disposition of the Veteran's appeal of these issues has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103. Increased Rating Claims Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.20 (2012). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1. Where an increase in an existing disability rating based upon established entitlement to compensation is at issue (i.e., an increased rating claim), the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. See Hart v. Mansfield, 21 Vet. App. 505 (2007). "The relevant temporal focus for adjudicating an increased rating claim [as opposed to a higher initial rating claim] is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim." Id. at 509. The Veteran's ankle disabilities have been rated under Diagnostic Code 5299-5271, the criteria utilized in rating limitation of motion of the ankle. 38 C.F.R. § 4.71a. Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2012). When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the Diagnostic Code number will be "built-up" as follows: the first two digits will be selected from that part of the schedule most closely identifying the part, or system of the body involved, in this case, the musculoskeletal system, and the last two digits will be "99" for all unlisted conditions. Then, the disability is rated by analogy under a Diagnostic Code for a closely related disability that affects the same anatomical functions and has closely analogous symptomatology. 38 C.F.R. §§ 4.20, 4.27 (2012). In this case, the RO determined that the Diagnostic Code most analogous to the Veteran's ankle disabilities is Diagnostic Code 5271, which pertains to limitation of motion of the ankle. Under Diagnostic Code 5271, moderate limitation of motion of the ankle is rated as 10 percent disabling and marked limitation of motion of the ankle is rated as 20 percent disabling. 38 C.F.R. § 4.71a. A 20 percent evaluation is the maximum available schedular evaluation under Diagnostic Code 5271. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath, 1 Vet. App. at 592. The Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relates to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). In all cases, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The Board has considered all evidence of record as it bears on the question of an increased rating. See 38 U.S.C.A. § 7104(a) (West 2002 & Supp. 2012) ("Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 5107(b) ("Secretary shall consider all information and lay and medical evidence of record in a case"). 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. The U.S. Court of Appeals for 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 Veteran's appeal. Increased Ratings for Right and Left Ankle Disabilities Prior to January 31, 2011 For the period prior to January 31, 2011 the Veteran contends that his right and left ankle disabilities were more severe than reflected by the currently assigned noncompensable ratings. Because the Veteran's left and right ankle disabilities' symptomatologies more nearly approximated the criteria for the next higher rating under the appropriate Diagnostic Code for the period prior to January 31, 2011, the Board will grant respective 10 percent ratings for the ankle disabilities, but no greater. Reviewing the pertinent evidence, in an April 2005 VA treatment record, the Veteran reported experiencing bilateral ankle arthralgia and occasional stiffness. Upon examination, the VA examiner noted finding active range of motion of the ankles was within normal limits. The VA examiner noted no effusions or ligamentous laxity. In an April 2005 VA X-ray report, a VA examiner noted that the Veteran's right ankle was normal. Regarding the left ankle, the VA examiner noted finding corticated densities beneath the medial malleolus and lateral most likely unincorporated and secondary ossification centers. The VA examiner also noted that the Veteran's talar dome and mortise in the left ankle were preserved. In a May 2005 private treatment record, the Veteran reported being forced off the road by a car while jogging. The Veteran indicated that this resulted in a severe inversion twisting injury to his left ankle and that he was having difficulty walking primarily because of his left ankle pain. Upon examination, the private examiner noted that ankle and subtalar motion on the left were severely limited by pain and swelling. The private examiner also noted that range of motion of the right ankle was normal. The private examiner diagnosed a recurrent grade III ankle sprain. In an additional May 2005 private treatment record, the Veteran reported that his left ankle pain essentially had resolved. Upon examination, to include range of motion testing, the private examiner noted that the left ankle was essentially normal. In a May 2005 statement, the Veteran reported experiencing pain in his ankles which had worsened over the years, resulting in difficulty in standing for long periods, squatting, or kneeling. The Veteran indicated that he would experience stiffness in his ankles and right foot in the morning, causing him to limp due to pain while attempting to walk. The Veteran stated that he would have to take over-the-counter pain relievers to relieve the stiffness. In a November 2005 VA medical examination report, the Veteran reported experiencing nagging pain in his right ankle since service, particularly with cold weather or running. The Veteran indicated that he experienced stiffness of the left ankle in the morning, as well as some decreased range of motion. The Veteran stated that his ankles only affected his employment to a minimal degree, and affected his activities of daily living only while running, walking for a prolonged period, or going up and down steps. Upon examination, the examiner noted that the right ankle displayed 30 degrees of dorsiflexion, 45 degrees of plantar flexion, 20 degrees of eversion, 30 degrees of inversion, and good subtalar motion. The VA examiner noted no palpable tenderness, acute or chronic swelling, or other signs of inflammatory disease. The VA examiner noted no increased limitation of motion due to weakness, fatigability, or incoordination upon examination. Upon examination, the Veteran's left ankle displayed 20 degrees of dorsiflexion, 40 degrees of plantar flexion, 20 degrees of eversion, 30 degrees of inversion, and good subtalar motion, even though the subtalar motion was less than that of the right ankle. The VA examiner noted no palpable tenderness, acute or chronic swelling, or other signs of inflammatory disease. The VA examiner noted no increased limitation of motion due to weakness, fatigability, or incoordination upon examination. The November 2005 VA examiner diagnosed an avulsion chip fracture, medial malleolus right ankle, and an ankle sprain of the left ankle. In a February 2006 VA treatment record, indicating treatment for the Veteran's left knee disability, a health care provider wrote "10 degrees left ankle dorsiflexion "`passive overpressure.'" In a May 2006 VA treatment record, a health care provider found that active range of motion of the ankles was within normal limits. The VA examiner noted no effusions or ligamentous laxity. In March 2007, September 2007, and February 2009 VA treatment records, respective health care providers found that active range of motion of the ankles was within normal limits. They noted left ankle medial malleolar hypertrophy, but, otherwise, no gross deformity. In a March 2009 statement, the Veteran's grandmother wrote that the Veteran experienced ankle swelling and problems walking due to joint pain. The Veteran's grandmother stated that the Veteran's injuries, to include his ankles, caused difficulty for the Veteran in performing simple tasks, such as playing with his children. In an April 2009 statement, the Veteran wrote that he believed that he should be granted a 20 percent rating for his right ankle disability. The Veteran indicated that he experienced chronic pain and limited range of motion in his right ankle. The Veteran stated that he applied ice daily to the ankle and took anti-inflammatory medication twice a day due to swelling. The Veteran indicated that he experienced stiffness in the ankle all day, and that he had to overuse his right ankle and foot to protect his service connected left ankle. The Veteran also wrote that he believed that he should be granted a 40 percent rating, at least, for his left ankle disability. The Veteran stated that, due to left ankle weakness, he had sprained the ankle twice, resulting in chronic pain, torn ligaments and tendons, and a limited range of motion. The Veteran stated that he applied ice daily to the ankle and took anti-inflammatory medication twice a day due to swelling. The Veteran indicated that he experienced stiffness in the ankle all day. The Veteran and his grandmother are both competent to discuss observable symptoms as described above. Layno v. Brown, 6 Vet. App. 465 (1994). Further, their statements are credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). They provide probative evidence in support of the Veteran's claims. In a September 2009 VA treatment record, a health care provider noted finding active range of motion of the ankles was within normal limits. The health care provider noted left ankle medial malleolar hypertrophy, but, otherwise, no gross deformity. From this record of evidence, the Board finds that the Veteran's right and left ankle disabilities more nearly approximated the symptomatologies required for respective 10 percent rating, but no greater, for the period prior to January 31, 2011. During this period, the Veteran consistently and credibly reported experiencing pain and stiffness in both ankles. Yet, the evidence for that period indicates that the reported pain and stiffness did not result in objectively measured limitation of motion of the ankle. In a May 2005 private treatment record, provided immediately after a jogging accident, a private examiner noted that the Veteran was displaying severe limitation of motion of the left ankle. Likewise, in a February 2006 VA treatment record, a VA examiner wrote that the Veteran displayed only 10 degrees left ankle dorsiflexion "passive overpressure." Yet, in respective treatment records dated in April 2005, November 2005, May 2006, March 2007, September 2007, February 2009, and September 2009, examiners noted that range of motion testing of both ankles was normal. Therefore, the vast majority of objective medical evidence for the period prior to January 31, 2011 indicates that the Veteran did not experience notable limitation of motion of either ankle during that period. See Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that it is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same). Yet, during the period prior to January 31, 2011, the Veteran made many credible statements indicating that he experienced some degree of functional loss of both ankles, due to pain and stiffness. The Veteran clearly indicated that the loss of motion of the ankles occurred mostly at times not observed by treating examiners, particularly in the mornings. Although such loss does not rise to the moderate limitation of motion of the ankle contemplated by the criteria for a 10 percent rating under Diagnostic Code 5299-5271, for the period prior to January 31, 2011, the Board finds that the functional loss of both of the Veteran's ankles due to pain and stiffness more nearly approximates that required for a 10 percent rating, the minimum compensable rating, pursuant to 38 C.F.R. § 4.59 and Burton, 25 Vet. App. at 1. For the period prior to January 31, 2011, the Veteran's right and left ankle disabilities' symptomatologies did not more nearly approximate the criteria required for a next higher 20 percent rating under Diagnostic Code 5299-5271. 38 C.F.R. § 4.71a. Specifically, for that period, the Veteran's respective ankle disabilities were not manifested by symptomatology more nearly approximating marked limitation of motion of either ankle. As noted above, the objective evidence for that period indicated that the Veteran did not experience objectively measurable loss of motion of the ankle. The record for that period did not contain any indication that the Veteran experienced loss of functional use of either ankle in manner that would more nearly approximate the marked limitation of motion of the ankle required for the next 20 higher rating under Diagnostic Code 5299-5271. DeLuca, 8 Vet. App. at 202. The Board has considered whether the Veteran's ankle disabilities' symptomatologies for the period prior to January 31, 2011 might have more nearly approximated the criteria for a rating in excess of 10 percent under other Diagnostic Codes. Other potentially applicable Diagnostic Codes include Diagnostic Codes 5010 (traumatic arthritis), 5270 (ankylosis of the ankle), 5272 (ankylosis of the subastralgar or tarsal joint), 5273 (malunion of the os calcis or astralgus), and 5274 (astralgalectomy). As the Veteran was not diagnosed with arthritis of either ankle, Diagnostic Code 5010 is not applicable. Diagnostic Code 5270, which pertains to ankylosis of the ankle joint, is not applicable in this case, as the Veteran was been diagnosed with ankylosis of either ankle. Diagnostic Code 5272 is likewise inapplicable because he was not diagnosed with ankylosis of the subastralgar or tarsal joint. Nor was he diagnosed with malunion of the os calcis or astralgus, and he has did not have an astralgalectomy. Therefore, Diagnostic Codes 5273 and 5274 are not applicable. For the period prior to January 31, 2011, the disability picture for the Veteran's right and left ankle disabilities more nearly approximated that required for respective 10 percent ratings, but no greater. For the period prior to January 31, 2011, the preponderance of the evidence is against a rating in excess of 10 percent for either ankle disability, so the benefit of the doubt rule is not applicable for that aspect of the appeals. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 54-56. There is no evidentiary basis upon which to assign a rating in excess of 10 percent and since there is no basis for assigning an increased rating, there is no basis for assigning a staged rating. Hart, 21 Vet. App. at 505. From January 31, 2011 For the period from January 31, 2011 the Veteran contends that his right and left ankle disabilities are more severe than reflected by the currently assigned respective 10 percent ratings. Because the Veteran's left and right ankle disabilities' symptomatologies more nearly approximate the criteria for the next higher rating under the appropriate Diagnostic Code for the period from January 31, 2011, the Board will grant respective 20 percent, but no greater, ratings. In a January 31, 2011 VA medical examination report, the Veteran reported experiencing moderate to severe pain in both ankles on a daily basis, lasting several hours to the entire day in length. He also indicated that he experienced ankle stiffness. He reported that the ankle disability symptomatology was worse with cold weather, prolonged standing, going up stairs, or walking. The Veteran denied experiencing any incapacitating ankle flare-ups requiring emergency room visits. He reported alleviating his ankle disability symptomatology by resting, avoiding activities, and taking medication (salsalate). He denied having any ankle deformity or effusions, or episodes of dislocation, subluxation, or locking. The Veteran reported experiencing giving way, instability, pain, stiffness, weakness, incoordination, inflammation, and decreased speed of motion of the ankles. He specifically denied experiencing any ankle flare-ups. He indicated that he had neither constitutional symptoms nor incapacitating episodes of arthritis. The Veteran stated that he was able to stand for 15 to 30 minutes, and able to walk a quarter of a mile. He indicated that he used a "brace" intermittently and not frequently. Upon examination of the right ankle, the examiner noted pain at rest, guarding of movement, and tenderness. The examiner indicated that there was no ankle instability or tendon abnormality, and that angulation was normal. Upon range of motion testing, the VA examiner noted that right ankle dorsiflexion was from zero to 10 degrees and plantarflexion was from zero to 10 degrees. The examiner noted objective evidence of pain with active motion of the right side, and pain following repetitive motion. The VA examiner noted finding no additional limitations after repetitive testing. The VA examiner diagnosed a chronic right ankle sprain, without significant effects on the Veteran's occupation, and moderate effects on the Veteran's ability to perform chores, exercise, play sports, and participate in recreational activities. Upon examination of the left ankle, the VA examiner noted pain at rest, guarding of movement, edema, and tenderness. The VA examiner indicated that there was no ankle instability or tendon abnormality, and that angulation was normal. Upon range of motion testing, the VA examiner noted that left ankle dorsiflexion was from zero to 12 degrees and plantarflexion was from zero to 10 degrees. The VA examiner noted objective evidence of pain with active motion of the right side, and pain following repetitive motion. The VA examiner noted finding no additional limitations after repetitive testing. The VA examiner diagnosed a chronic left ankle sprain, without significant effects on the Veteran's occupation, and moderate effects on the Veteran's ability to perform chores, exercise, play sports, and participate in recreational activities. Based upon a review of the record, for the period from January 31, 2011, the Board finds that the Veteran's right ankle disability symptomatology more nearly approximated the criteria required for a next higher 20 percent rating under Diagnostic Code 5299-5271. As noted above, the January 2011 VA examiner found that the Veteran experienced a loss of 10 degrees of dorsiflexion and 35 degrees of plantarflexion, indicating significant limitation of motion. Normal dorsiflexion is 20 degrees. Normal plantarflexion is 45 degrees. 38 C.F.R. § 4.71a, Plate II. The Board finds that such loss of motion more nearly approximates the marked limitation of motion required for a next higher 20 percent rating under Diagnostic Code 5299-5271. Likewise, for the period from January 31, 2011, the Board finds that the Veteran's left ankle disability symptomatology more nearly approximated the criteria required for a next higher 20 percent rating under Diagnostic Code 5299-5271. As noted above, the January 2011 examiner noted that the Veteran experienced a loss of eight degrees of dorsiflexion and 35 degrees of plantarflexion. The Board finds that such loss of motion again more nearly approximates the marked limitation of motion required for a next higher 20 percent rating under Diagnostic Code 5299-5271. The 20 percent rating is the maximum rating assignable based on limitation of motion of the ankle under Diagnostic Code 5299-5271; therefore it is not necessary to consider whether either of the Veteran's disability creates any further functional loss of the ankle that would justify a higher rating under this Diagnostic Code. Johnston v. Brown, 10 Vet. App. 80 (1997). The Board has again considered whether the symptomatology of either of the Veteran's ankle disabilities' might more nearly approximate the criteria for a rating in excess of 20 percent under other Diagnostic Codes. Other potentially applicable diagnostic codes include Diagnostic Codes 5010 (traumatic arthritis), 5270 (ankylosis of the ankle), 5272 (ankylosis of the subastralgar or tarsal joint), 5273 (malunion of the os calcis or astralgus), and 5274 (astralgalectomy). Yet, again, the record does not indicate that the Veteran experiences an arthritic disability in either ankle. Diagnostic Code 5270, which pertains to ankylosis of the ankle joint, is not applicable in this case, as the Veteran has not been diagnosed with ankylosis of either ankle. Diagnostic Code 5272 is likewise inapplicable because he has not been diagnosed with ankylosis of the subastralgar or tarsal joint. Nor has he been diagnosed with malunion of the os calcis or astralgus, and he has not had an astralgalectomy. Therefore, Diagnostic Codes 5273 and 5274 are not applicable. For the increased rating period from January 31, 2011, the disability picture for the Veteran's right and left ankle disabilities more nearly approximates that required for respective 20 percent ratings, but no greater. For the increased rating period from January 31, 2011, the preponderance of the evidence is against any claim for an increased rating in excess of 20 percent for either ankle disability, so the benefit of the doubt rule is not applicable for that aspect of the appeals. See 38 U.S.C.A. § 5107(b); Gilbert, at 54-56. Extraschedular Ratings The Board has considered whether referral for consideration of respective extraschedular ratings is warranted for the Veteran's ankle disabilities. In exceptional cases, an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular 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 a veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe a veteran's disability level and symptomatology, then the veteran'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 a veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the veteran'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) (stating that related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the Rating Schedule is inadequate to evaluate a veteran'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, specifically a determination of whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's respective ankle disabilities is specifically contemplated by the schedular rating criteria (38 C.F.R. §§ 4.71a, Diagnostic Code 5299-5271), and no referral for extraschedular consideration is required. The schedular rating criteria for that Diagnostic Code specifically provides for disability ratings based on a combination of history, symptoms, and clinical findings. In this case, for the entire increased rating period under appeal, the Veteran's ankle disabilities have been manifested by symptomatology more nearly approximating limitation of motion of the ankle during the entirety of the rating period under appeal. The schedular rating criteria specifically provide for ratings based upon such limitation of motion. As the schedular evaluations contemplate the respective disabilities and symptomatologies of the Veteran's ankle disabilities, the Board need not determine whether there are exceptional disability pictures that exhibit other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1). In the absence of evidence that the schedular rating criteria are inadequate to rate the Veteran's ankle disabilities, the Board is not required to remand these issues to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See also Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Total Rating Based Upon Individual Unemployability (TDIU) When entitlement to a total disability rating based on individual unemployability (TDIU) under the provisions of 38 C.F.R. § 4.16 is raised during the adjudicatory process of evaluating the underlying disabilities, it is part of the claim for benefits for the underlying disabilities. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). A TDIU claim is considered reasonably raised when a veteran submits medical evidence of a disability, makes a claim for the highest rating possible, and submits evidence of service-connected unemployability. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). In this case, the evidence shows that the Veteran is employed full time. Because there is no evidence of unemployability, further consideration of entitlement to TDIU is not required. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). ORDER For the period prior to January 31, 2011, a rating of 10 percent, but no greater, for the Veteran's right ankle disability is granted. For the period from January 31, 2011, a rating of 20 percent, but no greater, for the Veteran's right ankle disability is granted. For the period prior to January 31, 2011, a rating of 10 percent, but no greater, for the Veteran's left ankle disability is granted. For the period from January 31, 2011, a rating of 20 percent, but no greater, for the Veteran's left ankle disability is granted. REMAND In its October 2010 Remand, the Board requested that the AMC provide the Veteran with an examination to determine the nature and etiology of his claimed right knee disorder. In the January 2011 VA examination report, the examiner stated that the Veteran's right knee disorder was not related to service, in large part, because there was clear evidence showing that the Veteran sustained a right knee injury while jogging in 2005. In formulating his opinion, the examiner ignored the Veteran's reports of right knee disorder symptomatology of record prior to 2005, including noted complaints of right knee pain both from 1992 through 1996, and in April 2005, one month prior to the 2005 accident. The negative opinion is not adequate because it is based in part upon an incorrect factual basis. The Board is not bound to accept medical opinions that are based upon an inaccurate factual background. See Black v. Brown, 5 Vet. App. 177 (1993); Swann v. Brown, 5 Vet. App. 229 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993). Therefore, a supplemental opinion to determine the nature and etiology of the Veteran's right knee disorder is required. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should request the Veteran to identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who provided treatment for the Veteran's right knee disorder. After securing the necessary releases, the AMC/RO should attempt to obtain all copies of pertinent treatment records identified by the Veteran that are not currently of record. 2. Return the Veteran's claims file to the examiner who conducted the January 2011 VA examination to provide a supplemental opinion to assist in determining the etiology of the Veteran's right knee disorder. If that examiner is no longer available, provide the claims file to a similarly qualified clinician. A new examination is only required if deemed necessary by the examiner. The claims file should be sent to the VA examiner for his or her review. Following a review of the relevant history and medical evidence; and if a new examination is deemed necessary, an interview with the Veteran, and a physical examination and any necessary testing, the VA examiner is asked to offer the following opinions: a. Is it at least as likely as not (a 50 percent or greater degree of probability) that any right knee disorder that is currently present began during service or is otherwise linked to some incident of active duty, to include parachute jumping? b. Is at least as likely as not (50 percent or greater degree of probability) that any currently diagnosed right knee disorder was caused or aggravated (permanently worsened in severity) by the Veteran's service-connected left knee and bilateral ankle disabilities? The VA examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. "Aggravation" for legal purposes is defined as a worsening of the underlying disability beyond its natural progression versus a temporary flare-up of symptoms. The VA examiner must provide a rationale for any opinion provided. If the VA examiner is unable to answer any question presented without resort to speculation, the VA examiner must so indicate the reason why the question could not be answered. 3. After the above has been completed, the RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 4. After completion of the foregoing and all other necessary development, the AMC/RO should re-adjudicate the claims for service connection for a right knee disorder. If the benefits sought remain denied, the Veteran and the representative should be furnished a supplemental statement of the case, and should be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claims. See 38 C.F.R. § 3.655 (2012). 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). ______________________________________________ D. MARTZ AMES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs