Citation Nr: 1324879 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 09-07 257 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of service connection for diabetes mellitus. 2. Whether new and material evidence has been submitted to reopen a claim of service connection for a neck condition. 3. Whether new and material evidence has been submitted to reopen a claim of service connection for a low back condition. 4. Entitlement to service connection for obstructive sleep apnea, claimed as secondary to service-connected left and right knee disabilities. 5. Entitlement to a disability rating in excess of 20 percent for service-connected left knee chondromalacia patella/status post medial meniscus repair, with instability. 6. Entitlement to an initial, compensable disability rating for service-connected residuals of left thumb injury. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active duty from October 1984 to October 1990 and from January to February 1991. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions dated August 2008, February 2009 (issued in March 2009), February 2012, and July 2012 issued by the Department of Veterans Affairs (VA) Regional Office (RO) above. In August 2008, the RO continued a 20 percent rating assigned for service-connected right knee disability, which the Veteran appealed by submitting a timely notice of disagreement (NOD) and substantive appeal in November 2008 and February 2009, respectively. In February 2009, the RO denied service connection for sleep apnea and sleep problems, to include as secondary to disabilities affecting the knees, back, neck, and thumb and determined that new and material evidence had not been submitted to reopen a claim of service connection for diabetes mellitus. In February 2012, the RO granted service connection for residuals of a left thumb disability and assigned an initial, noncompensable disability rating, which the Veteran appealed. See March 2012 NOD and November 2012 VA Form 9. In July 2012, the RO determined new and material evidence had not been submitted to reopen claims of service connection for a neck and low back condition. In addition to the foregoing, review of the record reveals that the Veteran also perfected an appeal as to the denial of service connection for cold weather related injuries. See February 2009 rating decision; May 2009 NOD; September 2009 VA Form 9. Nevertheless, in June 2010, the Veteran, through his representative, submitted a statement withdrawing his appeal as to the cold weather injuries claim. As such, the issue of service connection for cold weather related injuries is no longer on appeal and will not be addressed in the decision herein. The issues of entitlement to service connection for a left arm and left hand disability 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 those issues and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Entitlement to service connection for diabetes mellitus was denied in a March 2006 rating decision. The Veteran did not submit any communication expressing dissatisfaction or disagreement with the March 2006 rating decision or any other communication regarding his claims of service connection diabetes mellitus until January 2009; therefore, the March 2006 rating decision became final. 2. Since the March 2006 rating decision, evidence that is new, that relates to an unestablished fact necessary to substantiate the claim of service connection for diabetes mellitus, that is neither cumulative nor redundant, and which raises a reasonable possibility of substantiating the claim, has not been received. 3. Entitlement to service connection for a neck condition was denied in a January 2005 rating decision, which was confirmed by a March 2008 Board decision. The Veteran did not submit any communication expressing dissatisfaction or disagreement with the March 2008 Board decision. Therefore, the March 2008 rating decision became final. 4. Since the March 2008 Board decision, evidence that is new, that relates to an unestablished fact necessary to substantiate the claim of service connection for a neck condition, that is neither cumulative nor redundant, and which raises a reasonable possibility of substantiating the claim, has not been received. 5. Entitlement to service connection for a neck condition was denied in a March 2006 rating decision, which was confirmed by a November 2009 Board decision. The Veteran did not submit any communication expressing dissatisfaction or disagreement with the November 2009 Board decision. Therefore, the November 2009 rating decision became final. 6. Since the November 2009 Board decision, evidence that is new, that relates to an unestablished fact necessary to substantiate the claim of service connection for a back condition, that is neither cumulative nor redundant, and which raises a reasonable possibility of substantiating the claim, has not been received. 7. The most competent, credible, and probative evidence of record is against a finding that the Veteran currently has obstructive sleep apnea that was incurred or aggravated by active military service or was caused by, related to, or aggravated by his service-connected left and right knee disabilities. 8. The preponderance of the evidence reflects that the Veteran's service- connected left knee chondromalacia patella/status post medial meniscus repair, with instability, is manifested by no more than moderate instability, with subjective complaints of giving way and occasional locking and evidence showing the Veteran requires the use of a cane and knee braces for balance and stability. There is no objective evidence of instability. The Veteran has demonstrated normal extension throughout this appeal and his range of motion in flexion has been limited to no less than 90 degrees, even when considering complaints of pain and after repetitive motion. Additional functional limitation due to pain, fatigue, weakness, lack of endurance, and incoordination is not shown. The left knee disability has been manifested by osteoarthritis throughout the pendency of this appeal, which has been confirmed by objective evidence of painful motion. There is a well-healed arthroscopic scar on the left knee and a cruciate scar on the left knee which measures no more than 24 square centimeters and are not shown to be painful on objective examination. 10. The preponderance of the evidence reflects that the Veteran's service- connected residuals of left thumb injury is manifested by subjective complaints of pain and swelling, with objective evidence of swelling and tenderness over the MTP and IP joints. The Veteran was diagnosed with left thumb osteoarthritis in September 2008. The evidence does not show that the Veteran's left thumb is manifested by limitation of motion, with a gap of more than one inch between the thumb pad and fingers; nor is there any evidence of painful motion of the left thumb. CONCLUSIONS OF LAW 1. The March 2006 rating decision that denied service connection for diabetes mellitus is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.1103 (2012). 2. The March 2008 and November 2009 Board decisions that denied service connection for a neck disability and back disability, to include as secondary to service-connected right knee disability, respectively, are final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.1104 (2012). 3. Since the last final rating decision in March 2006, new and material evidence has not been received sufficient to reopen the previously denied claim of service connection for diabetes mellitus. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156(a) (2012). 4. Since the last final Board decisions issued in March 2008 and November 2009, new and material evidence has not been received sufficient to reopen the previously denied claims of service connection for a neck disability or back disability. 38 U.S.C.A. §§ 5108, 7104(b) (West 2002); 38 C.F.R. §§ 3.104, 3.156(a) (2012). 5. Obstructive sleep apnea was not incurred in nor aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 6. The schedular criteria for a disability rating in excess of 20 percent for service-connected left knee chondromalacia patella/status post medial meniscus repair, with instability, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5260, 5261 (2012). 7. The schedular criteria for separate 10 percent disability rating, but no higher, for arthritis of the left knee manifested by painful motion has been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5010-5261 (2012). 8. The schedular criteria for a noncompensable (zero percent) disability rating for the scar associated with service-connected left knee chondromalacia patella/status post medial meniscus repair, with instability, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.31, 4.118, Diagnostic Code 7802 (in effect prior to December 2008) (2012). 9. The schedular criteria for a compensable disability rating for service-connected residuals of left thumb injury have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.71, Diagnostic Code 5299-5228. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not in the record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). These notice requirements apply to all elements of a claim, including the degree and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Proper VCAA notice must be provided prior to the initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). Specific to requests to reopen, the claimant must be notified of both the reopening criteria and the criteria for establishing the underlying claim for service connection. See Kent v. Nicholson, 20 Vet. App. 1 (2006). With respect to the claims to reopen on appeal, the Veteran was advised in January 2009 and January 2010, prior to the initial unfavorable rating decision issued in March 2009 and July 2012, of the criteria for reopening a previously denied claim, the criteria for establishing service connection, and information concerning why his service connection claims (for diabetes mellitus, a back condition, and a neck condition) were previously denied. The January 2009 and October 2010 letters also advised him of the responsibilities of the Veteran and VA in obtaining such evidence, as well as the evidence and information necessary to establish a disability rating and an effective date, in accordance with Dingess/Hartman. With respect to the service connection claim on appeal, the Veteran was advised in May 2008, prior to the initial unfavorable rating decision issued in March 2009, of the criteria for establishing service connection, the responsibilities of the Veteran and VA in obtaining such evidence, and the evidence and information necessary to establish a disability rating and an effective date, in accordance with Dingess/Hartman. With respect to the increased rating claim for the left knee disability, the Veteran was provided with pre-rating notice in May 2008, which informed him of the criteria for an increased rating, the responsibilities of the Veteran and VA in obtaining such evidence, and the evidence and information necessary to establish a disability rating and an effective date. Review of the record reveals that the Veteran has not been provided proper notice with respect to his increased rating claim for the left thumb disability. However, in this instance, the Veteran is challenging the initial disability rating assigned following the grant of service connection. In Dingess, the Court of Appeals for Veterans Claims held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Review of the record revels that, in May 2008, prior to the February 2012 rating decision that granted service connection for a left thumb disability, the RO sent the Veteran a letter advising him of the criteria for establishing service connection, the responsibilities of the Veteran and VA in obtaining such evidence, and the evidence and information necessary to establish a disability rating and an effective date, in accordance with Dingess/Hartman. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied with respect to the left thumb increased rating claim. Based on the foregoing, the Board concludes that the Veteran has been provided with proper notice with respect to all claims on appeal. With regard to the duty to assist, all pertinent, identified, and obtainable records have been obtained and considered, including the Veteran's service treatment records and all post-service treatment records identified by the Veteran and the record. In this regard, the Board notes that the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file, and it is apparent that the RO reviewed all evidence in the paperless claims file as well. The Board finds significant that neither the Veteran nor her representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. The Veteran was afforded a VA examination in conjunction with his sleep apnea, left knee, and left thumb disabilities, and there is no indication or allegation that these examinations were inadequate. The Board observes that the Veteran has not been afforded VA examinations in conjunction with the new and material evidence claims involving diabetes mellitus and a neck condition; however, as discussed below, new and material evidence sufficient to reopen the claims of service connection for diabetes mellitus and a neck condition has not been submitted. Therefore, such assistance is not required. See Woehlaert v. Nicholson, 21 Vet. App. 456, 463 (2007); Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1342-43 (Fed. Cir. 2003). Furthermore, as discussed below, the evidence and information received since the last final denial of the Veteran's claims is not sufficient to trigger the duty to provide a VA examination. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the foregoing reasons, the Board finds that VA has satisfied its duties to inform and assist the Veteran at every stage in this case. As such, the Veteran will not be prejudiced by a decision on the merits of his claims. II. Analysis Petitions to Reopen Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a). Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. For claims to reopen that are received on or after August 29, 2001, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of determining whether new and material evidence has been received, all evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, evidence need not be presumed credible if the assertion is inherently incredible, or the individual is not competent to make such assertion. King v. Brown, 5 Vet. App. 19, 21 (1993); Duran v. Brown, 7 Vet. App. 216, 220 (1994). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA's duty to obtain a VA examination. Id. at 118. Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. Id. at 120 (noting the assistance of 38 C.F.R. § 3.159(c)(4) would be rendered meaningless if new and material evidence required a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). Diabetes Mellitus By way of background, the Veteran's claim of entitlement to service connection for diabetes mellitus was initially denied in a March 2006 rating decision. At that time, the RO considered the Veteran's service treatment records (STRs) and post-service treatment records, which show the Veteran was not diagnosed with diabetes mellitus on active duty but, instead, years after service in 2005. The RO also considered the Veteran's assertions that he developed diabetes mellitus secondary to his inability to exercise as a result of his service-connected right knee disability; however, the RO determined that the evidence did not show that lack of exercise is the reason he developed diabetes mellitus or that the Veteran was unable to exercise solely because of his service-connected right knee disability. As a result, the RO determined that there was no basis for establishing service connection for diabetes mellitus on a direct or secondary basis. The Veteran was notified of the RO's decision and his appellate rights in March 2006. However, no further communication regarding his claim of entitlement to service connection for diabetes mellitus was received until January 2009, when VA received his application to reopen such claim. Therefore, the March 2006 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). In making this determination, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no evidence pertaining to the Veteran's claim for service connection for a diabetes mellitus was received prior to the expiration of the appeal period stemming from the March 2006 rating decision. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). The current appeal arises from a claim to reopen submitted by the Veteran in January 2009. At the time of the last final rating decision in March 2006, there was no evidence relating the Veteran's diabetes mellitus to his military service or establishing that his diabetes mellitus was caused by, a result of, or aggravated by his service-connected right knee disability. Since the final March 2006 rating decision, the pertinent evidence received into the record includes VA treatment records dated from 2007 to 2012, private treatment records from Dr. G.C., and a September 2009 VA Joints examination report. While new, this evidence is not considered material because it does not contain any information or evidence related to the diabetes mellitus claim and, thus, does not raise a reasonable possibility of substantiating the diabetes mellitus claim. Since the March 2006 rating decision, the Veteran also submitted a December 2009 statement from a Dr. H., which states that the Veteran has multiple medical problems that interfere with and limit his ability to exercise, including degenerative disease of the bilateral knees, obstructive sleep apnea, and being overweight. While this evidence is new, in that it was not of record at the time of the last final decision, this evidence is not considered material because it does not relate the Veteran's diabetes mellitus to his military service or a service-connected disability and, as such, does not raise a reasonable possibility of substantiating the diabetes mellitus claim. Since the March 2006 rating decision, also received into the record is a September 2010 VA examination report and April 2011 addendum. In September 2010, the Veteran was afforded an independent medical examination where his diagnosis of type II diabetes mellitus was continued. As to the etiology of the Veteran's diabetes mellitus, the examining physician opined that it is less likely than not that the diabetes mellitus is causally related to the Veteran's service-connected bilateral knee (degenerative joint disease) disabilities and that it would be speculation to provide an opinion regarding whether diabetes mellitus is aggravated by the service-connected bilateral knee disabilities. In April 2011, the September 2010 VA examiner provided a rationale in support of his previous opinion, stating that it is less likely than not that a direct causal relationship is evident between diabetes mellitus and the bilateral knee DJD complex, noting that, while it is well known that the etiology of diabetes is multi-factorial, including hereditary, autoimmune, environmental, and body habitus factors, he did not see a correlation between DJD of the knees and onset of diabetes in this Veteran, as insulin resistance and body habitus changes are evident. While the VA medical opinions provided in September 2010 and April 2011 are new, the opinions are not material because the examiner provided a negative opinion with an adequate rationale in support thereof. A negative nexus opinion cannot be material because it does not raise a reasonable possibility of substantiating the claim. Villalobos v. Principi, 3 Vet. App. 450 (1992). Therefore, the Board finds the September 2010 and April 2011 VA examination and opinions are not new and material evidence sufficient to reopen the diabetes mellitus claim. Based on the foregoing, the Board finds that, while new evidence has been submitted since the last final rating decision in March 2006, the new evidence is not material, as it does not raise a reasonable possibility of substantiating the diabetes mellitus claim. In making this determination, the Board again notes that the new evidence does not establish or even suggest that the Veteran's current diabetes mellitus is directly related to his military service or is caused by, a result of, or aggravated by a service-connected disability. In the absence of new and material evidence, there is no need to provide a VA examination concerning the claim to reopen. See Shade, 24 Vet. App. at 120; McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In summary, even when considering the newly submitted evidence together with the previous evidence of record, the evidence does not raise a reasonable possibility of substantiating the Veteran's claim of service connection for a neck condition. Accordingly, new and material evidence has not been received sufficient to reopen the previously denied claim, and the Veteran's claim for that benefit is denied. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Neck Condition By way of background, the record reflects that entitlement to service connection for a neck condition was initially denied in a January 2005 rating decision. The Veteran appealed the RO's determination by submitting a timely NOD and substantive appeal in February 2005 and July 2006. As such, that issue was certified to the Board. However, in March 2008, the Board denied entitlement to service connection for a neck condition, to include as secondary to service-connected right knee disability. At the time of the March 2008 decision, the Board considered the STRs, which showed the Veteran complained of neck pain in March 1985 and June 1989; however, the Board noted that, while there were several instances of neck strain in service, the Veteran did not have a chronic neck disability at separation from service. The Board also considered post-service treatment records, which showed the Veteran received treatment for cervical strain in November 2003, November 2004, and March 2005; however, the Board noted that the post-service cervical strain resulted from workplace activities and that there was no evidence of continuity of symptomatology. As such, the Board determined that a neck disability was not incurred in or aggravated by service and is not proximately due to or the result of a service-connected disability. The Veteran did not file an appeal as to the March 2008 Board decision. As such, the March 2008 Board decision became final. See 38 U.S.C.A. §§ 7103, 7104, 7266 (West 2002); 38 C.F.R. §§ 20.1100 (2012). In July 2008, the Veteran filed an application to reopen his claim. Since the March 2008 Board decision, the pertinent evidence received into the record includes a January 2011 statement from Dr. P.H., which states that the Veteran has chronic neck and back pain and that he also has chronic bilateral knee pain that contributes to his current condition. Also received into the record are various VA and private treatment records. In July 2012, the Veteran sought treatment at VA for various problems, including neck pain that radiated down the left shoulder. No pertinent diagnosis was rendered at that time and the VA and private treatment records do not contain any other information or evidence related to the neck condition. The January 2011 statement from Dr. P.H. and the VA and private treatment records received since the March 2008 Board decision are new, in that it was not of record at the time of the last final decision. This evidence is not considered material, however, because, while it shows the Veteran has received treatment for neck pain after service, the evidence does not relate the Veteran's neck pain to his military service on a direct basis or establish (or suggest) that his neck pain is a result of, caused by, or aggravated by his service-connected disabilities. Accordingly, as there is not new and material evidence establishing that the current neck condition is directly related to the Veteran's military service or was caused by, a result of, or aggravated by a service-connected disability, there is no need to provide a VA examination concerning the claim to reopen. See Shade, 24 Vet. App. at 120; McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In summary, even when considering the newly submitted evidence together with the previous evidence of record, the evidence does not raise a reasonable possibility of substantiating the Veteran's claim of service connection for a neck condition. Accordingly, new and material evidence has not been received sufficient to reopen the previously denied claim, and the Veteran's claim for that benefit is denied. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Back Condition Review of the record reveals that entitlement to service connection for a back condition was initially denied in a January 2005 rating decision. The Veteran appealed the RO's determination by submitting a timely NOD and substantive appeal in February 2005 and July 2006. As such, that issue was certified to the Board. In November 2009, the Board denied entitlement to service connection for a back condition, to include as secondary to service-connected right knee disability. At the time of the November 2009 decision, the Board considered the Veteran's STRs and the post-service private VA and private treatment records dated from 2003 to 2004. As to direct service connection, the Board noted that the STRs do not show a back disability was incurred in or aggravated during active service. Instead, the Board noted that the first complaints of back pain appear in 2003, with a reported history of back pain since 1999. As such, the Board determined that the Veteran's back symptoms were not continuous since service or directly related to his service. As to secondary service connection, the Board considered medical opinions provided by Dr. H., received in July 2007 and July 2008, which state that the Veteran's right knee disability "could have possibly" caused the back disability and that his chronic low back disability was caused by a chronic right knee condition that has caused an altered gait while walking. The Board afforded Dr. H's opinions lessened probative value for the following reasons. The Board initially noted that service connection for a right knee disability was established in 1990, but also noted that, while there is a reported history of limping in 1993, limping but is not shown on examination until 2006. The Board also noted that there is evidence showing the Veteran had two intermittent back injuries, one in 1999 and the other in 2003, which led to persistent back complaints. Accordingly, the Board concluded that the preponderance of the evidence was against a finding that the Veteran's back disability was caused by his service-connected right knee disability. The Board also found there was no evidence of record which established that the Veteran's back disability was aggravated by his service-connected knee disabilities. The Veteran did not file an appeal as to the November 2009 Board decision. As such, the November 2009 Board decision became final. See 38 U.S.C.A. §§ 7103, 7104, 7266 (West 2002); 38 C.F.R. §§ 20.1100 (2012). Since the final Board decision in November 2009, the pertinent evidence received into the record includes medical opinions provided by Dr. H, dated January 2011 and April 2011, which state, in pertinent part, that the Veteran's back pain most probably can be related to his right knee pain. Dr. H. did not provide a rationale in support of his opinion and, thus, his opinions are speculative in nature. While Dr. H.'s January and April 2011 opinions were not of record at the time of the last final decision in November 2009, the Board finds that the opinions are essentially duplicative of the opinions submitted by the Veteran in support of his claim in July 2007 and July 2008, as they relate the current back disability to the right knee disability. In addition, as noted, Dr. H. did not provide a rationale in support of his claim and, thus, his opinions amount to non-evidence that neither supports nor refutes the claim. See Warren v. Brown, 6 Vet. App. 4, 6 (1993); Sklar v. Brown, 5 Vet. App. 104, 145-6 (1993) (opinions which contain the mere speculation language, without more, amount to "nonevidence" neither for nor against the claim because service connection may not be based on speculation or remote possibility; see also Bloom v. West, 12 Vet. App. 185 (1999) (holding that a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). Review of the evidentiary record does not reveal any additional evidence submitted since the November 2009 Board decision which is new and raises a reasonable possibility of establishing that the Veteran's current back disability is directly related to his military service on a direct basis or that his service-connected disabilities caused or aggravated his low back disability. Therefore, based on the foregoing, the Board finds that Dr. H.'s January and April 2011 opinions are not new or material and, as such, are insufficient to reopen the claim of service connection for a back disability. There is no other new or material evidence establishing that the current back condition is directly related to the Veteran's military service or was caused by, a result of, or aggravated by a service-connected disability. As such, there is no need to provide a VA examination concerning the claim to reopen. See Shade, 24 Vet. App. at 120; McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In summary, even when considering the newly submitted evidence together with the previous evidence of record, the evidence does not raise a reasonable possibility of substantiating the Veteran's claim of service connection for a back condition. Accordingly, new and material evidence has not been received sufficient to reopen the previously denied claim, and the Veteran's claim for that benefit is denied. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Service Connection Claim Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Depending on the evidence and contentions of record in a particular case, lay evidence can be competent and sufficient to establish a diagnosis and medical etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. With respect to continuity of symptomatology, the Court recently held that, under 38 C.F.R. § 3.303(b), the theory of continuity of symptomatology is an alternative route to establish service connection for specific chronic diseases and can only be used in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Obstructive sleep apnea is not listed and thus, 38 C.F.R. § 3.303(b) is not for application in this case. Generally, when a Veteran contends that a service-connected disorder has caused or aggravated a secondary disability, there must be competent medical evidence of such causation or aggravation. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995); Jones v. Brown, 7 Vet. App. 134 (1994). To prevail on the issue of secondary service causation, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and, (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran is seeking service connection for obstructive sleep apnea. The evidence does not show, nor does the Veteran allege, that his sleep apnea began in service. Instead, the Veteran has alleged that his current sleep apnea is related to his service-connected left and right knee disabilities, as they have impaired his ability to walk and resulted in him being obese. In support of his claim, the Veteran submitted a December 2009 statement from Dr. H., which states that the Veteran has multiple medical problems that interfere with his ability to exercise, including degenerative disease of the knees, obstructive sleep apnea, and being overweight. As a current diagnosis for sleep apnea exists, the first element of service connection is established. The second element of service connection for sleep apnea is established as service connection has been established for multiple disabilities, and include the following disabilities: a left knee disability and a right knee disability. The December 2009 statement from Dr. H. is considered competent medical evidence, which establishes that the Veteran's obstructive sleep apnea, among other disabilities, interfere with his ability to exercise. Dr. H did not opine or submit evidence showing that the Veteran's obstructive sleep apnea was caused or aggravated by his service-connected left and right knee disabilities. As such, his opinion does not support a finding that the Veteran's current obstructive sleep apnea is related to his service-connected left and right knee disabilities. As noted above, the final element is a claim for service connection on a secondary basis is evidence of a medical nexus that establishes a connection between the current disability and the service-connected disability. The third element of service connection has not been demonstrated. In fact, the evidentiary record contains a September 2010 VA examination wherein the examining physician opined that it is less likely than not that the Veteran's sleep apnea was caused by or is related to his bilateral knee condition and that it would be speculation to opine regarding whether sleep apnea is aggravated by the bilateral knee condition. At the September 2010 VA examination, the Veteran reported that sleep apnea was diagnosed in 2004; however, the examiner noted that a formal sleep study was done (as reflected in an April 2007 VA treatment record), which confirmed sleep apnea pattern and after which the Veteran was started on CPAP. In support of his conclusion, the VA examiner noted there is no direct causal relationship between the Veteran's DJD and sleep apnea which was diagnosed in 2004. The examiner further noted that sleep apnea may prove central or peripheral in origin. In this regard, the examiner noted that obstructive evidence of sleep apnea was seen on the sleep study, with the most common being upper airway obstruction, which is secondary to nasal or oral-pharyngeal obstruction. The September 2010 VA examiner also noted that restrictive obstruction of the chest wall and altered air exchange is evident in those who are obese, as is this Veteran. See September 2010 VA examination report; April 2011 Addendum. The Board considers the opinion provided by the September 2010 VA examiner to be the most competent, credible, and probative evidence of record with respect to whether the Veteran's sleep apnea is secondary to his service-connected left and right knee disabilities. Indeed, the Board finds that the September 2010 VA examination was adequate for evaluation purposes, as the examiner reviewed the claims file, interviewed the Veteran, and conducted a physical examination. There is no indication or allegation that the VA examiner was not fully aware of all relevant facts in this case or that the examiner misstated any relevant fact. In fact, the VA examiner provided an opinion that was based upon the evidence of record, including the service and post-service treatment records, and supported by a complete rationale. In this regard, the Board notes that the VA examiner's opinion is supported by the other evidence of record, which shows the Veteran's sleep apnea was diagnosed no earlier than 2004, many years after the Veteran's service ended, and is not shown, by competent lay or medical evidence or opinion, that sleep apnea was caused or aggravated by his service-connected left or right knee disabilities. The Board notes that the September 2010 VA examiner stated it would be speculation to opine on whether the Veteran's sleep apnea is aggravated by his service-connected left or right knee disabilities and adequately explained his conclusion, as he noted that the evidence showed obstructive evidence due to nasal or oral-pharyngeal obstruction and restrictive evidence of the disability, due to the Veteran's obesity. There is no evidence showing that the Veteran's service-connected left or right knee disabilities have aggravated his sleep apnea. In this regard, the Board has considered the Veteran's lay assertions of a nexus between his sleep apnea and service-connected left and right knee disabilities, particularly his assertions that his bilateral knee disabilities have impaired his ability to walk and resulted in him being obese, which led to his diagnosis of sleep apnea. However, sleep apnea is not a condition that is generally capable of lay observation, as the diagnosis of such requires confirmation by sleep study. As a result, the determination as to the presence and etiology of that disability is a complex medical question. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). It is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the relationship between his claimed disabilities and service, and the Veteran has only offered conclusory statements regarding the relationship between his sleep apnea and service-connected left and right knee disabilities. By contrast, the September 2010 VA examiner took into consideration all the relevant facts in providing the medical opinion, which was based upon all relevant facts in this case and medical expertise. As such, the Veteran's statements regarding a nexus between his sleep apnea and service-connected left and right knee disabilities are not considered competent or probative evidence favorable to his claim. In summary, and based on the foregoing reasons and bases, the Board finds the preponderance of the most competent, credible, and probative evidence is against the grant of service connection for obstructive sleep apnea. Because the evidence preponderates against the Veteran's claim, the benefit-of-the-doubt doctrine is not for application. See Gilbert, supra. Increased Rating Claims Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In instances where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Left Knee Entitlement to service connection for a left knee condition was established in December 2006, and the RO assigned an initial 20 percent rating pursuant to 38 C.F.R. §4.71a, Diagnostic Code (DC) 5257, effective November 5, 2004. In March 2008, the Veteran submitted a written statement which was accepted as an informal claim seeking an increased rating for his service-connected left knee disability. The Veteran's increased rating claim was denied in an August 2008 rating decision. In the August 2008 rating decision, the Veteran's left knee disability was re-characterized as chondromalacia patella, status post medial meniscus repair and his diagnostic code under which his disability is rated was changed to 38 C.F.R. §4.71a, DC 5299-5257. As noted, the Veteran's service-connected left knee disability is currently rated 20 percent disabling under DC 5299-5257. 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. Unlisted disabilities requiring rating by analogy will be coded by the numbers of the most closely related body part and 99. 38 C.F.R. § 4.27 (2012). The hyphenated diagnostic code in this case indicates that an unlisted organic disease of the musculoskeletal system, under Diagnostic Code 5299, was the service-connected disorder, while the residual condition (to which the Veteran's service-connected heart disability is rated by analogy) is other impairment of the knee/recurrent subluxation or lateral instability of the knee, which is evaluated under DC 5257. Under DC 5257, recurrent subluxation or lateral instability of the knee warrants a 10 percent rating when slight; a 20 percent rating when moderate; and a 30 percent rating when severe. The Board observes that the words "slight," "moderate," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of descriptive terminology such as "mild" by medical examiners, 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 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. §§ 4.2, 4.6 (2012). The pertinent evidence of record includes VA examination reports dated May 2008, September 2009, September 2010, and February 2013, VA treatment records dated from 2008 to 2013, a September 2008 treatment report from Dr. G.C., and statements from the Veteran which document his subjective complaints of left knee pain. VA treatment records also document the Veteran's continued complaints of left knee pain. In July 2009, his active range of motion was within full limits. In June 2011, however, his extension remained normal, while his flexion was limited to 90 degrees and the examiner also noted slight varus and valgus instability. Likewise, in March 2012, objective examination revealed range of motion from zero to 100 degrees, with stable varus and valgus stress, and mild medial joint line tenderness. X-rays of the bilateral knees revealed mild osteoarthritis at that time. At the May 2008 VA examination, the Veteran reported having pressure and pain in his left knee, with increased pain, cracking, and swelling. The Veteran reported that he is unable to stand more than 30 minutes without increased pain, walk more than half a block, or sit for more than one hour. He also complained of giving way while using stairs and he reported locking that only occurred once every three to four months. Based on this report, the VA examiner noted the Veteran complained of pain and decreased functional ability due to fatigability, weakness, and lack of endurance. Objective examination revealed the Veteran did not use a cane but was limping and favoring both knees. The Veteran was able to demonstrate extension to zero degrees and flexion to 105 degrees. There was evidence of crepitus in the patellofemoral joint and tenderness in the medial joint line. There was no evidence of ligament laxity or varus/valgus laxity. X-rays revealed chondromalacia patella and the examiner stated he was unable to render a diagnosis of arthritis based on the x-ray findings. The examiner noted there were healed arthroscopic scars on the bilateral knees, as well as a cruciate scar on the medial aspect of the left knee, which measured 6 by 4 cm. The examiner did not indicate if the left knee scars were superficial, deep, or painful on examination. The Veteran was afforded a VA examination in September 2009, which evaluated his service-connected right knee disability. Notably, however, the VA examiner noted that objective examination revealed the Veteran used a cane and favored his left knee. Examination of the bilateral knees also revealed well-healed arthroscopic scars that were flat and non-tender. A September 2008 treatment report from Dr. G.C. notes the Veteran's history of left knee problems; however, the Veteran had no other new complaints. Examination of the bilateral knees revealed patellofemoral crepitus, but the Veteran was stable to all laxity tests conducted, including anterior and posterior drawer, Lachmans, and varus and valgus stress. Examination also revealed tenderness along the medial and lateral joint lines, with no significant effusion observed. On VA examination in September 2010, the Veteran reported experiencing pain on a daily basis that increased with activity. He also reported having a loose body in his left knee. The Veteran was able to demonstrate extension to zero degrees and flexion to 98 degrees. Repetition did not result in additional limitation of motion, although there were complaints of pain. The examiner noted that range of motion was not additionally limited by weakness, fatigability, or lack of endurance. Objective examination revealed intact sensation in the bilateral lower extremities and the Veteran was noted to use a cane while favoring his left knee. X-rays of the left knee revealed a patellar spur. At the February 2013 VA examination, the diagnosis of left knee chondromalacia was continued. The Veteran reported experiencing stiffness in the morning and continued joint pain. He also reported difficulty with prolonged ambulation and using stairs due to pain and weakness in the knee. The Veteran reported having flare-ups of pain due to weather changes and overuse. On objective examination, the Veteran demonstrated extension to zero degrees, with no objective evidence of painful motion; however, flexion was limited to 90 degrees with evidence of pain. Repetitive motion revealed the same range of motion, with no additional limitation noted. There was evidence of joint line tenderness, but there was normal motor strength in the knee and normal joint stability. There was also no evidence of an effusion, swelling, erythema, or crepitus. The examiner noted there is no history or evidence of recurrent patellar subluxation or dislocation and that the Veteran's current symptoms are residual symptoms of his left knee meniscectomy. The examiner states that the Veteran's function loss includes loss of movement and painful movement in the left knee. He noted the Veteran uses a cane for balance and instability regularly and that he also uses braces on his knees occasionally. The examiner noted there is a scar on the left knee that did not measure more than 39 square centimeters (cm) and was not painful or unstable on examination. The VA examiner states that the left knee disability does not impact the Veteran's ability to work. In evaluating the Veteran's claim under DC 5257, the Board notes the Veteran has reported experiencing giving way in his left knee while using stairs, as well as locking that occurs once every three to four months. The Veteran is competent to report the nature, frequency, and severity of his symptoms and, thus, his statements regarding giving way and locking are considered competent lay evidence of such. See Layno v. Brown, 6 Vet. App. 465 (1994). The evidence also shows that the Veteran uses a cane for balance and instability in his knees and he also uses knee braces occasionally. Despite the foregoing, the Board notes that objective evaluation of the left knee has consistently shown a stable left joint, as testing has revealed no ligament laxity or laxity to varus or valgus stress. The evidentiary record contains only one notation of slight varus/valgus instability in June 2011; however, the Board finds probative that the instability was described as "slight" and is not noted again in the record. Based on this evidence, the Board finds that a rating higher than 20 percent is not warranted under DC 5257, as the Veteran's left knee instability is no more than moderate. In making this determination, the Board notes the evidence clearly establishes that the Veteran experiences instability in his left knee, as there are subjective complaints of giving way and occasional locking and evidence showing the Veteran requires the use of a cane and knee braces for balance and stability. However, given the lack of objective evidence of instability in the left knee, as confirmed by various tests, including varus and valgus stress and anterior and posterior drawer, the Board finds that the Veteran's instability more nearly approximates moderate instability as contemplated by DC 5257. In this regard, the Board notes that severe instability would likely result in instability and laxity that can be confirmed by objective evaluation, which is not shown in this case. In an effort to afford the veteran the highest possible disability rating, the Board has evaluated his right knee disability under all other appropriate diagnostic codes. However, the Veteran has never been diagnosed with or shown to have ankylosis of the knee, impairment of the tibia and fibula, or genu recurvatum (hyperextended knee). Therefore, 38 C.F.R. § 4.71a, DCs 5256, 5262, and 5263 are not for application. The Board has also considered the Veteran's left knee disability under DC 5258 and 5259, which assign a disability rating based upon dislocated semilunar cartilage or the symptomatic removal of semilunar cartilage. However, the maximum ratings available under DCs 5258 and 5259 are 20 and 10 percent, respectively. As such, the Board finds that DC 5258 does not assist the Veteran in obtaining a higher rating in this case and, therefore, are not for application. Under DC 5260, a 10 percent rating is warranted for flexion limited to 45 degrees, a 20 percent rating is warranted for flexion limited to 30 degrees, and a 30 percent rating is warranted for flexion limited to 15 degrees. Under DC 5261, a 10 percent rating is warranted for extension limited to 10 degrees, a 20 percent rating is warranted for extension limited to 15 degrees, a 30 percent rating is warranted for extension limited to 20 degrees, a 40 percent rating is warranted for extension limited to 30 degrees, and a 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Plate II, indicates that normal flexion of the knee is 140 degrees and normal extension of the knee is zero degrees. In evaluating the Veteran's claim, the Board notes that the Veteran's range of motion in flexion has been limited to no less than 90 degrees, even when considering complaints of pain and after repetitive motion. See VA examination reports dated May 2008, September 2010, and February 2013; see also June 2011 VA treatment record. A compensable rating under DC 5260 requires flexion limited to 60 degrees, which is not shown in this case. Therefore, DC 5260 does not assist the Veteran in obtaining a higher disability rating. The Veteran has consistently demonstrated normal extension to zero degrees throughout this appeal, which is also noncompensable under DC 5261. See VA examination reports dated May 2008, September 2010, and February 2013. Review of the record reveals that a September 2008 x-ray of the left knee revealed early medial compartment osteoarthritis. See September 2008 record from Dr. G.C. Despite this evidence, x-rays conducted in May 2008 and September 2010 did not reveal any evidence of arthritis. The May 2008 VA examiner noted that x-rays of the left knee reveal patellar femoral crepitus, which suggest patellar femoral chondromalacia; however, the examiner stated he was unable to make a diagnosis of left knee osteoarthritis, as there was no evidence of knee joint base narrowing or arthritis. Nevertheless, a March 2012 x-ray of the bilateral knees revealed mild osteoarthritis. See March 2012 VA treatment record. The evidentiary record contains a clear diagnosis of left knee osteoarthritis in September 2008 and March 2012, but there is a question as to whether the Veteran manifested osteoarthritis in the interim. The Board notes that arthritis is a chronic condition and, thus, it is unlikely that he had osteoarthritis in September 2008 and March 2012 but not throughout. Therefore, the Board will resolve all reasonable doubt in favor of the Veteran and find that his left knee disability has been manifested by osteoarthritis throughout the pendency of this appeal. The Board notes that the VA General Counsel has determined that a claimant who has service-connected instability of the knee and limitation of motion may be rated separately under DCs 5010 and 5003, which provide the criteria for arthritis due to trauma and degenerative arthritis, respectively. See VAOPGCPREC 9-98 (August 14, 1998). Under DC 5010, traumatic arthritis is rated as degenerative arthritis. Under DC 5003, degenerative arthritis substantiated by x-rays will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In evaluating the Veteran's claim under DC 5010/5003, described above, the Board again notes the Veteran has never demonstrated range of motion warranting a compensable evaluation under DCs 5260 and 5261. Nevertheless, review of the record reveals the Veteran has limitation of motion in the left knee as VA treatment records show flexion limited to 90 degrees and VA examination reports show that his flexion has been limited to 105, 98, and 90 degrees. See VA examination reports dated May 2008, September 2010, and February 2013. The evidence variously shows that the Veteran experiences pain, painful motion, and swelling in his left knee. The May 2008 VA examiner did not specifically state if there was objective evidence of painful motion, but he stated that the Veteran was in pain throughout the course of the examination and the Board notes it is highly likely the Veteran would experience pain if he attempted flexion beyond the 105 limit demonstrated at the May 2008 VA examination. The physicians who conducted the September 2010 and February 2013 VA examinations noted that the Veteran's range of motion in flexion was limited by pain. Based on the foregoing and after resolving all reasonable doubt in favor of the Veteran, the Board finds that, throughout the appeal period, the Veteran's left knee disability warrants a separate 10 percent evaluation under DC 5010 due to traumatic arthritis manifested by limitation of motion objectively confirmed by painful motion. A higher rating is not warranted because as noted above, the criteria for a higher rating under DC 5260 and/or 5261 are not shown. The Board notes that 38 C.F.R. §§ 4.40 and 4.45 (2012) and the decision in DeLuca v. Brown, 8 Vet. App. 202 (1995), require it to consider the Veteran's pain, swelling, weakness, and excess fatigability when determining the appropriate disability evaluation for a disability using the limitation-of-motion diagnostic codes. Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). However, under Spurgeon v. Brown, 10 Vet. App. 194 (1997), the Board is not required to assign a separate rating for pain. In evaluating the Veteran's left knee under the criteria of DeLuca, supra, the Board notes the Veteran has reported experiencing flare-ups of pain in his left knee with any activity. The May 2008 VA examiner noted the Veteran has decreased functional activity in the left knee due to fatigability, weakness, and lack of endurance. The February 2013 VA examiner also stated that the Veteran's functional loss was manifested by less movement than normal and painful movement. None of the physicians who evaluated the Veteran in conjunction with this claim have estimated the Veteran's functional loss due to pain; however, the Board finds the Veteran is not prejudiced thereby. Indeed, the Board notes that the 20 percent rating currently assigned under DC 5257 and the separate rating under DC 5010 contemplates the Veteran's additional functional limitation due to pain, fatigability, weakness, lack of endurance, and instability. Additional limitation of motion or functional impairment as to warrant a higher rating is not shown. Therefore, an increased evaluation is not warranted based on application of 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board has considered whether a separate rating may be assigned for the scar associated with the Veteran's left knee disability. As discussed above, the Veteran has a arthroscopy scar on his left knee, as well as a scar on the medial aspect of his knee that measures no more than 24 square inches. See VA examination reports dated May 2008 and February 2013. During the pendency of the Veteran's claim and appeal, amendments were made to the criteria for rating the skin, effective October 23, 2008. See 73 Fed. Reg. 54,710 (Sept. 23, 2008) (codified at 38 C.F.R. § 4.118, DCs 7800 to 7805 (2012). However, these amendments only apply to applications received by VA on or after October 23, 2008, or if the Veteran expressly requests consideration under the new criteria, which she has not done here. Therefore, the Board has no authority to consider these revisions in deciding this claim and they will not be discussed herein. See VAOPGCPREC 3-00; 38 U.S.C.A. § 5110(g). Therefore, only the pre-October 2008 version of the schedular criteria is applicable in this case. Under the regulations and criteria in effect prior to October 2008, a 10 percent evaluation is warranted for scars covering an area of 144 square inches or greater where superficial and without resulting limited motion; for a superficial, unstable scar (characterized by frequent loss of skin covering the scar); or a superficial scar that is painful on examination. 38 C.F.R. § 4.118, DCs 7802 to 7804 (2008). Under DC 7801, scars other than on the head, face, or neck, where such are deep and cause limited motion, warrant a 10 percent rating if they cover an area exceeding six square inches; a 20 percent rating if covering an area exceeding 12 square inches; a 30 percent rating if covering an area exceeding 72 square inches; and a 40 percent rating if covering an area exceeding 144 square inches. Otherwise, scars will be rated on the limitation of motion of the affected part, under DC 7805. The evidentiary record does not contain a great deal of information regarding the Veteran's left knee scars, but the evidence reflects that the left knee scars are not painful on examination. There is also no evidence that the left knee scars cover an area of 144 square inches or greater or are unstable; nor is there evidence that the scars are deep, cause limited motion, or cover an area exceeding six square inches or more. Finally, there is no evidence showing that the scar results in any limitation of motion or function in the left knee. Therefore, a compensable disability rating is not warranted for the left knee scar under DCs 7801 to 7805 (2008). However, in every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. As such, the Board finds that a separate, noncompensable (zero percent) disability rating is warranted for the scar associated with the Veteran's service-connected left knee disability. In view of the foregoing, the Board finds that the disability ratings assigned in this decision adequately reflects the clinically established impairment experienced by the Veteran. The Board has considered whether the Veteran is entitled to a "staged" rating for his service-connected disability, as the Court indicated can be done in this type of case. See Francisco, supra. However, upon reviewing the longitudinal record in this case, the Board finds that, at no time since the filing of the Veteran's claim for service connection, in March 2008, has his left knee disability been more disabling than as currently rated under this decision. His complaints of pain, the objective findings, and the overall functional impairment experienced by the Veteran have been relatively consistent throughout the appeal period. Therefore, based on the foregoing reasons and bases, the Board finds the preponderance of the evidence is against the grant of a rating in excess of 20 percent for service-connected left knee chondromalacia patella/status post medial meniscus repair, with instability. The preponderance of the evidence supports a separate 10 percent rating under DC 5010, but the preponderance of the evidence is against a rating higher than 10 percent based on limitation of motion. The preponderance of the evidence also supports the grant of a separate, noncompensable rating for the scars associated with the service-connected left knee disability. In evaluating this claim, all reasonable doubt has been resolved in favor of the Veteran. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Left Thumb Entitlement to service connection for residual of a left thumb injury was established in February 2012, and the RO assigned an initial, noncompensable (zero percent) rating pursuant to 38 C.F.R. §4.71a, Diagnostic Code (DC) 5299-5228, effective March 3, 2008. The Veteran has asserted that his left thumb disability warrants a compensable rating. Under DC 5228, limitation of thumb motion that manifests as a gap of one to two inches (2.5 to 5.1 cm) between the thumb pad and the fingers with the thumb attempting to oppose the fingers warrants a 10 percent rating for either the major or minor extremity. Such limitation of motion that manifests as a gap of more than two inches (5.1 cm) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers warrants a 20 percent rating for either the major or minor extremity. 38 C.F.R. § 4.71a, DC 5228. The pertinent evidence of record includes VA examination reports dated September 2010 and February 2013, VA treatment records dated from 2008 to 2013, and a September 2008 treatment report from Dr. G.C. The Veteran has also submitted various written statements in support of his appeal. In March 2012, he stated that his left thumb should be rated more than 10 percent disabling, as his left thumb affects his left hand. VA treatment records show consistent reports of left thumb pain, which the Veteran has asserted increases with movement. The Veteran has reported that his grip is not strong but he has denied dropping objects. The VA treatment records do not contain a great deal of information regarding the Veteran's left thumb range of motion but, in January 2012, he was noted to have full range of motion with no pain. See VA treatment records dated November 2011, January 2012, and March 2013. A September 2008 treatment report from Dr. G.C. notes the Veteran's history of left thumb pain, without associated numbness or tingling. The Veteran reported that his pain is located in the interphalangeal (IP) and metaphalangeal (MTP) joints of the left thumb and that he also experiences increased swelling and stiffness. Objective examination revealed swelling and tenderness in the MP joint. The examiner noted there was a loss of range of motion as compared to the right side but he did not provide the specific ranges of motion of the left thumb. Nevertheless, the examiner reported that x-rays of the left thumb revealed evidence of MTP joint arthritis. At the September 2010 VA examination, the Veteran reported having persistent pain in his left thumb that increased in severity with repetitive activity and certain movement of the thumb. The Veteran reported that the pain is located primarily in the IP and MTP joints. Objective examination revealed swelling over the MTP and IP joints and tenderness but there was no evidence of erythema. The examiner stated that the Veteran was able to demonstrate flexion to 30 degrees at the MTP joint and 25 degrees at the PIP joint. Repetitive motion did not reveal any additional loss due to pain, enduration, fatigue, or restriction. There was no evidence of any neurosensory deficits in the left thumb. At the February 2013 Hand and Fingers VA examination, the Veteran reported experiencing pain and stiffness in his left thumb. The Veteran reported having flare-ups that are manifested by stiffness in the morning and the pain with positioning of the thumb. The examiner noted that the Veteran is right-hand dominant. As to the limitation of motion of the left thumb, the February 2013 VA examiner noted, at the MTP joint, the Veteran was able to flex his thumb to 80 degrees, while flexion of the IP joint was limited to 50 degrees. The Veteran had full extension of the left thumb. There was, however, no limitation of motion or evidence of painful motion for the thumb and the Veteran was able to perform repetitive motion without additional limitation of motion. The examiner specifically noted that there is no evidence of a gap between the thumb pad and the fingers after repetitive motion. The examiner further noted that there is no functional loss or functional limitation of the thumb. Indeed, objective examination revealed normal hand grip strength and there was no evidence of ankylosis of the thumb. The February 2013 VA examiner noted that x-rays of the left thumb did not contain abnormal findings and, as such, traumatic arthritis of the hand was not diagnosed at that time. The examiner stated that the left thumb disability does not impact the Veteran's ability to work. Applying the facts to the rating criteria listed above, the Board finds the preponderance of the evidence is against the grant of a compensable rating for the service-connected left thumb disability at any point during the pendency of this appeal. The preponderance of the evidence shows that the left thumb disability is manifested by subjective complaints of pain and swelling, with objective evidence of swelling and tenderness over the MTP and IP joints. Despite this evidence, the evidence does not show that the Veteran's left thumb is manifested by limitation of motion as contemplated by DC 5228. Indeed, the Board notes that the February 2013 VA examiner noted that there was no objective evidence of limitation of motion or painful motion of the thumb, even after repetitive motion. There is no other evidence of record that shows, when attempted to oppose the fingers, there is a gap of one to two inches (2.5 to 5.1 cm) between the thumb pad and the fingers. In this regard, the Board notes that both the September 2010 and February 2013 VA examiners provided the range of motion of the individual joints in the left thumb; however, as discussed above, limitation of motion of the thumb is rated based upon the gap between the thumb pad and fingers while attempting to oppose the fingers, not the range of motion of the individual joints in the thumb. See 38 C.F.R. §4.71a, DC 5299-5228. The Board has considered the Veteran's left thumb disability under all other potentially applicable diagnostic codes; however, the Veteran's disability only involves his thumb and the evidence shows his disability is not manifested by ankylosis. Therefore, DCs 5224, which evaluates ankylosis of the thumb, and DCs 5229 and 5230, which evaluate limitation of motion of the index, long, ring, and little fingers, are not for application in this case. As noted, the Veteran was diagnosed with left thumb osteoarthritis by Dr. G.C. in September 2008. As such, the Board has considered the Veteran's left thumb disability under DC 5010, for degenerative arthritis, as described above. In this regard, while there is a diagnosis of osteoarthritis of record, the evidence shows that the Veteran is able to demonstrate normal range of motion in the left thumb, without any objective evidence of painful motion. The Board notes that the Veteran has consistently described swelling in his left thumb, which is contemplated as a symptom of arthritis under DC 5010; however, a separate rating may not be awarded under DC 5010 unless there is evidence of limitation of motion. As there is no evidence of limitation of motion in the left thumb, a separate 10 percent rating may not be granted under DC 5010/5228. In this context, the Board has consisted whether a higher rating may be granted based upon painful motion, as indicated by 38 C.F.R. § 4.59 and Burton v. Shinseki, 25 Vet. App. 1 (2011). However, as noted, there is no evidence of painful motion in the left thumb. Therefore, the provisions of 38 C.F.R. § 4.59 and Burton are not for application in this case. Based on the foregoing, the Board finds that the disability rating currently assigned to the left thumb disability adequately reflects the clinically established impairment experienced by the Veteran. In this regard, the Board notes that examiners have stated that there is no functional loss or functional limitation experienced by the Veteran as a result of his left thumb disability. The Board has considered whether the Veteran is entitled to a "staged" rating for his service-connected disability, as the Court indicated can be done in this type of case. See Francisco, supra. However, the Veteran's complaints of pain, the objective findings, and the overall functional impairment experienced by the Veteran have been relatively consistent throughout the appeal period. Therefore, based on the foregoing reasons and bases, the Board finds the preponderance of the evidence is against the grant of an initial compensable rating for service-connected residuals of left thumb injury. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application and the Veteran's claim is denied. See Gilbert, supra. Final Considerations The Board has considered whether the Veteran's left knee and left thumb disabilities should be referred for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1). An extra-schedular rating is warranted if a case presents such an exceptional or unusual disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization, that it would be impracticable to apply the schedular standards. Analysis under this provision involves a three-step inquiry, and extra-schedular referral is necessary only if analysis under the first two steps reveals that the rating schedule is inadequate to evaluate the claimant's disability picture and that such picture exhibits such related factors as marked interference with employment or frequent periods of hospitalization. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). In this case, the manifestations of the Veteran's left knee and left thumb disabilities are fully contemplated by the schedular rating criteria. In particular, the Veteran's symptoms of left knee pain, painful, limited motion, and instability, as well as left thumb pain and swelling, are contemplated by the rating criteria. As such, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and the rating schedule is adequate to evaluate his disability picture. Therefore, it is unnecessary to discuss the second prong, i.e., whether there are related factors such as marked interference with employment or frequent periods of hospitalization. See id. However, the Board notes that there have been no hospitalizations for the Veteran's left knee or left thumb during the course of the appeal. Further, the percentage ratings are considered adequate to compensate for considerable loss of working time from exacerbations proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. As such, referral for consideration of an extra-schedular rating is not necessary. See Thun, 22 Vet. App. at 115-16. The Board has also considered whether a claim for a TDIU has been raised. When evidence of unemployability is submitted during the course of an appeal from a rating assigned for a disability, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In this case, the evidence reflects that the Veteran last worked as a medical secretary at a VA Medical Center but stopped working in approximately 2008, with no indication as to why the Veteran stopped working. See September 2009 VA Joints examination. The September 2010 VA diabetes mellitus examination report reflects that the Veteran was in school for medical specialties. The Veteran has generally reported that his disabilities prevent him from working. Despite the Veteran's assertions, the physicians who evaluated the Veteran's left knee and left thumb in February 2013 noted that the left knee and left thumb disabilities do not impact his ability to work, and there is no evidence dated prior to February 2013 which shows the Veteran lost any significant amount of time from work due to his service-connected left knee and left thumb disabilities. In this regard, the Board notes that the September 2010 VA examiner noted the Veteran's work was altered by the slowness if his bilateral knee pain. This evidence only shows that the left knee disability had some impact on his ability to work and does not establish that the Veteran was rendered unemployable as a result of his left knee disability. Given the severity of the Veteran's left knee disability, the Board notes that it is likely that his left knee would have some effect on his employability; however, the occupational impairment caused by the Veteran's left knee disability is contemplated by the 20 and 10 percent ratings currently assigned thereto. As such, the evidence does not show that the Veteran is unemployable solely due to his service-connected disabilities, and further discussion of a TDIU is not necessary. ORDER New and material evidence having not been received, the application to reopen the previously denied claims of service connection for diabetes mellitus, a neck condition, and a back condition are denied. Entitlement to service connection for sleep apnea is denied. Entitlement to a disability rating in excess of 20 percent for serivce-connected left knee chondromalacia patella/status post medial meniscus repair, with instability, is denied. A separate, 10 percent rating for limitation of motion of the left knee manifested by painful motion is granted. A separate, noncompensable disability rating is warranted for the scar associated with service-connected left knee chondromalacia patella/status post medial meniscus repair, with instability. Entitlement to a compensable disability rating for service-connected residuals of a left thumb injury is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs