Citation Nr: 1326016 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 10-27 774 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to an initial rating higher than 10 percent for retropatellar pain syndrome with tendinitis of the left knee. 2. Entitlement to an initial rating higher than 10 percent for retropatellar pain syndrome of the right knee. 3. Entitlement to an initial rating higher than 10 percent for bilateral plantar fasciitis. 4. Entitlement to an initial compensable rating for right wrist tendonitis prior to February 16, 2012, and a rating higher than 10 percent since. 5. Entitlement to an initial compensable rating for left wrist tendonitis prior to February 16, 2012, and a rating higher than 10 percent since. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION This appeal to the Board of Veterans' Appeals (Board/BVA) originated from a December 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that rating decision, the RO granted service connection for left knee retropatellar pain syndrome with tendonitis, right knee retropatellar pain syndrome, and bilateral plantar fasciitis, and assigned each condition a 10 percent disability rating retroactively effective from April 30, 2004. In response the Veteran appealed for higher initial ratings for these disabilities. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (when a Veteran appeals an initial rating, VA must consider whether to "stage" the rating - meaning assign different ratings at different times since the effective date of the award to compensate him for times when the disability has been more severe than at others). In August 2011, in support of his claims, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the Board's offices in Washington, DC (Central Office (CO) hearing). The Board subsequently in November 2011 remanded the claims to the RO via the Appeals Management Center (AMC) for further development and consideration. In December 2012, while the claims were on remand, the AMC granted service connection for right and left wrist tendonitis and assigned each condition a 0 percent (noncompensable) rating retroactively effective from May 5, 2004, and a higher 10 percent rating as of February 16, 2012. The Veteran also appealed these initial ratings. See Fenderson, supra. The Board again remanded the claims in February 2013 for still additional development, and they since have been returned to the Board for further appellate consideration. A portion of the Veteran's records are in the "Virtual VA" system. Instead of paper, a highly secured electronic repository is used to store and review every document involved in the claims process. The use of this system allows VA to leverage information technology in order to more quickly and accurately decide Veterans' claims for benefits. Because the current appeal was processed as part of the Virtual VA system, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The claims of entitlement to higher initial ratings for the left and right wrist tendonitis are being REMANDED to the RO via the AMC in Washington, DC, whereas the Board instead is going ahead and deciding the remaining claims for higher initial ratings for the left and right knee retropatellar pain syndrome and bilateral plantar fasciitis. Please also note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The retropatellar pain syndrome with tendinitis of the left knee is manifested by extension of 0 degrees and flexion of at least 125 degrees, but with slight patellar laxity and subjective reports of giving way (so akin to instability). 2. The retropatellar pain syndrome of the right knee is manifested by extension of 0 degrees and flexion of at least 120 degrees, but with slight patellar laxity and subjective reports of giving way (so akin to instability). 3. The bilateral plantar fasciitis is manifested by accentuated pain with use, but does not result in swelling, deformity, inward bowing of the Achilles tendons, or characteristic callosities. CONCLUSIONS OF LAW 1. The criteria are not met for an initial rating higher than 10 percent for the retropatellar pain syndrome with tendinitis of the left knee; however, the criteria are met for a separate 10 percent rating because there also is instability of this knee. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5257 (2012). 2. The criteria are not met for an initial rating higher than 10 percent for the retropatellar pain syndrome with of the right knee; however, the criteria are met for a separate 10 percent rating because there also is instability of this knee. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5257 (2012). 3. The criteria are not met for an initial rating higher than 10 percent for the bilateral plantar fasciitis. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5276 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) A. Duty to Notify The VCAA was signed into law in November 2000 and enhanced VA's obligations in terms of notifying and assisting claimants with claims for VA benefits. The VCAA was codified as amended at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126, and the implementing VA regulations were codified as amended at 38 C.F.R. §§ 3.102, 3.156 a, 3.159, 3.326. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, also apprise him of the information and evidence VA will obtain versus the information and evidence he is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). When the claim is for service connection, this notice should address all elements of the claim, including the "downstream" disability rating and effective date elements in the event there is a favorable disposition of the claim. See Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Also, ideally, this notice should be provided before initially adjudicating the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary VCAA notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated, rather preserved, and the Veteran is given ample opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, instead, must be judged on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran has this burden of proof of not only establishing error but also, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of his claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). This particular Veteran is challenging the initial evaluation assigned following the granting of service connection for his left knee, right knee, and bilateral plantar fasciitis disabilities. In Dingess, the U.S. Court of Appeals for Veterans Claims (Court/CAVC) held that in cases where service connection has been granted and an initial disability rating and effective date assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id., at 490-91. Thereafter, once a Notice of Disagreement (NOD) has been filed contesting a "downstream" issue such as the initial rating assigned for the disability, the notice requirements of 38 U.S.C.A. §§ 5104 and 7105 regarding a rating decision and SOC control as to any further communications with the appellant, including as to what evidence is necessary to establish a more favorable decision with respect to the downstream element of the claim. See Goodwin v. Peake, 22 Vet. App. 128 (2008). Therefore, in accordance with 38 U.S.C.A. §§ 5103(a) and 7105(d), the RO provided the Veteran this required SOC in June 2010 citing the applicable rating criteria and containing discussion of the reasons and bases for not assigning higher initial ratings for these disabilities. He also since has received SSOCs again citing the applicable rating criteria and containing discussion of the reasons and bases for not granting higher initial ratings. He therefore has received all required notice concerning these claims. B. Duty to Assist VA also must assist the Veteran in obtaining evidence relevant to his claim, unless there is no reasonable possibility that such assistance would help to substantiate the claim. To this end, his service treatment records (STRs), VA treatment records, and private treatment records have been obtained and associated with the claims file for consideration. He also was provided VA examinations assessing and reassessing the severity of his left knee, right knee, and bilateral plantar fasciitis disabilities. Olson v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); Caffrey v. Brown, 6 Vet. App. 377 (1994); Allday v. Brown, 7 Vet. App. 517, 526 (1995). Indeed, the Board twice remanded the claims - initially in November 2011 and again in February 2013 - to have him reexamined to reassess the severity of his disabilities, and to obtain outstanding VA treatment records, private treatment records, Social Security Administration (SSA) records, and vocational rehabilitation reports. The examinations are adequate as they contain sufficient findings to rate his disabilities in terms of addressing all applicable rating criteria. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain an opinion, it must ensure the examination or opinion is adequate). The other outstanding records also have been obtained and associated with the claims file. For these reasons, the Board finds compliance with the directives of the remands. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders); but see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand not required under Stegall where there was substantial compliance with the remand directives). Increased Ratings A. Applicable Law Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). All reasonable doubt regarding the degree of disability or any point material to the determination will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2012). Where entitlement to compensation already has been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all of the evidence of record, the more critical evidence is that generated during the appeal period. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged" rating. See Fenderson, 12 Vet. App at 125-26. The Court also has held that staged ratings are appropriate even in cases that do not involve initial ratings, rather, also established ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2008). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the Veteran raised them, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). The Board must consider evidence of pain, weakened movement, premature or excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use, including after prolonged, repetitive-type activity or during "flare-ups." DeLuca v. Brown, 8 Vet. App. 202 (1995); Voyles v. Brown, 5 Vet. App. 451, 454 (1993). The provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 direct VA to assign the minimum compensable rating for a joint where the joint is actually painful, unstable, or misaligned. This directive to assign a minimally compensable rating in the presence of pain applies to joint pain generally and is not limited to pain only associated with arthritis. See Burton v. Shinseki, 25 Vet. App. 1, 1-2 (2011). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. But when evaluating the reduction of excursion due to pain, not all painful motion constitutes limited motion. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-40 (2011). Pain on motion can only be characterized as limiting pain constituting functional loss when the evidence shows the pain actually affects some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, or endurance. Id., at 37. In other words, pain may cause a functional loss, but pain, by itself, does not constitute a functional loss. Id., at 36. Moreover, when the diagnostic code is not predicated on the loss of range of motion, or the Veteran already has the highest available rating based on restriction of motion, the provisions regarding pain in 38 C.F.R. §§ 4.40 and 4.45 do not apply. Johnson v. Brown, 9 Vet. App. 7, 11 (1996). B. Left and Right Knees The Veteran's left and right knee retropatellar pain syndrome disabilities are both rated under Diagnostic Code 5257-5010. 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. Each knee has been assigned a 10 percent rating throughout the period on appeal. There are several potentially applicable diagnostic codes. Diagnostic Code 5010 concerns arthritis due to trauma (i.e., post-traumatic arthritis) and is rated as degenerative arthritis. Under Diagnostic Code 5003, degenerative arthritis (hypertrophic or osteoarthritis), when substantiated by X-rays, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved - which, here, since involving the knees, are Diagnostic Code 5260 for limitation of leg and knee flexion and Diagnostic Code 5261 for limitation of leg and knee extension. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 20 percent disability rating is warranted with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent disability rating is warranted with X-ray evidence of involvement of two or more major joints or two or more minor joint groups. Note (1) in Diagnostic Code 5003 indicates that these 20 and 10 percent ratings based on X-ray findings will not be combined with ratings based upon limitation of motion. 38 C.F.R. § 4.71a (2012). According to Diagnostic Code 5260, which as mentioned concerns limitation of flexion of the leg and knee, a noncompensable (0 percent) rating is assigned when flexion is limited to 60 degrees. A 10 percent rating is assigned when flexion is limited to 45 degrees. A 20 percent rating is assigned when flexion is limited to 30 degrees. A 30 percent rating is assigned when flexion is limited to 15 degrees. Id. According to Diagnostic Code 5261, which as mentioned instead concerns limitation of extension of the leg and knee, a noncompensable rating is assigned when extension is limited to 5 degrees. A 10 percent rating is assigned when extension is limited to 10 degrees. A 20 percent rating is assigned when extension is limited to 15 degrees. A 30 percent rating is assigned when extension is limited to 20 degrees. A 40 percent rating is assigned when extension is limited to 30 degrees. A 50 percent rating is assigned when extension is limited to 45 degrees. Id. For comparison, normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. Id. VA's General Counsel held that separate ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5260 (limitation of flexion of the leg) and under Diagnostic Code 5261 (limitation of extension of the leg), may be assigned for disability of the same joint. VAOPGCPREC 9-2004 (September, 2004). Diagnostic Code 5257 provides ratings for "other" knee impairment, including recurrent subluxation or lateral instability. A 10 percent rating is warranted for slight consequent knee disability. A 20 percent rating is warranted for moderate knee disability. And a 30 percent rating is warranted for severe knee disability. These descriptive words "slight," "moderate," and "severe" are not defined in the Rating Schedule; rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Use of terminology such as "mild" and "moderate" by VA examiners or other physicians, however, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. VA's General Counsel also has held that a claimant who has arthritis and instability of a knee may be rated separately under Diagnostic Codes 5003 and 5257, while cautioning that any such separate rating must be based on additional disabling symptomatology. VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997); VAOPGCPREC 9-98 (August, 1998). VA's General Counsel further explained that if a Veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also X-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. Id. This is because, in applying Diagnostic Code 5003, the Court held in Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), that "painful motion of a major joint . . . caused by degenerative arthritis, where the arthritis is established by X-ray, is deemed to be limited motion and entitled to a minimum 10 percent rating, per joint, combined under Diagnostic Code 5003, even though there is no actual limitation of motion." See also 38 C.F.R. § 4.59 (2012). There are still other diagnostic codes for rating knee disabilities. However, these other codes do not allow for ratings exceeding 10 percent or the objective evidence of record does not contain any of the relevant findings such as ankylosis of the knee (rated under Diagnostic Code 5256), dislocated semilunar cartilage (rated under Diagnostic Code 5258), removal of semilunar cartilage (rated under Diagnostic Code 5259), nonunion or malunion of the tibia and fibula (rated under Diagnostic Code 5262), or genu recurvatum (rated under Diagnostic Code 5263). As such, ratings under these other Diagnostic Codes would not be appropriate. Turning now to the relevant facts. The Veteran had a VA compensation examination in November 2004. He reported bilateral knee pain with occasional flare-ups. Pain was especially noticeable in the mornings, and he found himself limping to the bathroom. He wore braces to relieve the pain. His left knee gave out on him. On examination, the Veteran had a normal gait and ambulated without assistive devices. There was no swelling, effusion, or deformity of the knees. There was tenderness to palpation, greater on the right side. Active and passive flexion was 0 degrees extension to 130 degrees of flexion, with minimal crepitus. All movements were performed without pain, incoordination, fatigability, or weakened movement. Muscle strength was 5/5 bilaterally. Anterior drawer, McMurray's, and lateral instability testing were all negative. X-rays revealed no significant arthropathy or fractures. VA records dated July 2005 show complaints of bilateral intermittent knee pain. Examination revealed full range of motion without pain or edema. Another VA examination was conducted in March 2006. The Veteran reported walking with a cane since leaving service due to bilateral knee problems. His stated that his knees "clicked," were unstable, and fatigued easily. His left knee also had swelling. Pain was worse on the right side. On examination, there was bilateral crepitus but no swelling. Right knee range of motion was 0 degrees extension to 120 degrees of flexion. Left knee range of motion was 0 degrees extension to 125 degrees of flexion. Both knees appeared stable. VA records dated July 2008 show the Veteran denied a history of falls. However, in September 2008, the he reported a positive history of falls. Range of motion was full without any signs of effusion. Private records dated January 2009 show the Veteran reported knee pain and occasional giving out. On examination, he was noted to have a limping gait. He presented with a walker and stated that he needed a walker all the time. No deformity was present. Ranges of motion were noted to be normal. He was diagnosed with chronic left knee subluxation. SSA records from February 2009 noted no abnormality in the motion of the major joints. There was slight swelling in the right knee. The Veteran had an antalgic gait. Additional VA records dated April 2009 reflect findings of slight patellar laxity and crepitus. Range of motion was normal, and there was no pain to palpation or other joint laxity. The treating physician noted that knee pain was out of proportion to the examination findings. In May 2009, MRIs revealed bilateral degenerative changes. In September 2010, the Veteran was noted to have normal range of motion. The Veteran testified at a Board hearing in August 2011. He reported difficulty walking in the mornings and evenings, and after any significant amount of walking. He experienced giving way in both knees. He had difficulty ambulating down steps. He rated his pain as 8/10 in severity. An additional VA examination was conducted in February 2012. The Veteran reported flare-ups in his left knee, which resulted in swelling and giving way. Flare-ups were caused by extended use. On examination, range of motion of the right knee was 0 degrees extension to 135 degrees of flexion. There was no objective evidence of painful motion. Left knee range of motion was 0 degrees extension to 130 degrees of flexion, with no objective evidence of painful motion. These findings were unchanged following repetitive testing. There was no additional functional loss or impairment, such as weakened movement or incoordination, following repetitive use. Muscle strength was 5/5 bilaterally. Anterior, posterior, and medial-lateral stability was normal bilaterally. There was no history of recurrent dislocation or subluxation. A meniscal condition was not present. X-rays revealed minimal arthritis. VA records dated June 2012 show the Veteran denied a history of falls. Based on the evidence, a rating higher than 10 percent is unwarranted for either of the Veteran's knee conditions. A higher rating under Diagnostic Code 5010, which utilizes the rating criteria under Diagnostic Code 5003, requires X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. Here, the evidence does not reflect any incapacitating exacerbations resulting from minimal bilateral knee arthritis documented in February 2012. Even the most minimum rating of 0 percent under Diagnostic Code 5260 requires flexion limited to 60 degrees; the most minimum compensable rating of 10 percent requires flexion limited to 45 degrees. The Veteran's knee flexion far exceeds this, even when considering his associated pain. Conversely, the most minimum 0 percent rating under Diagnostic Code 5261 requires extension limited to 5 degrees, and the most minimum compensable rating of 10 percent under this code requires extension limited to 10 degrees. At worst, during the period on appeal, the Veteran's flexion was to 120 degrees and extension always was 0 degrees, again, even when accounting for his pain and other limiting factors, as well as prolonged or repetitive use. Therefore, he clearly is not entitled to higher ratings under these codes because he has well more than the range of motion required. But the Board also has considered whether a separate rating under Diagnostic Code 5257 is appropriate. Examinations in November 2004, March 2006, and February 2012 noted no objective findings of instability. However, the Veteran has reported a history of instability or giving way in his knees throughout the period on appeal. He was diagnosed with chronic left knee subluxation in January 2009, albeit without accompanying physical findings. Still, in April 2009, he was noted to have slight patellar laxity and crepitus, with additional findings of crepitus during the appeal period. In adjudicating a claim the Board must assess the competency and credibility of the Veteran's written and oral testimony to determine its ultimate probative value, including in relation to the other relevant evidence in the file, whether medical or lay. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). He is competent to talk about what he observes or experiences; for example, he is competent to report that he experiences certain symptoms such as persistent pain and limited mobility. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The Board also finds him credible in his reports of the symptoms he experiences. When viewed along with the medical evidence of record, including findings of "slight" patellar laxity, his account of his symptoms is consistent with a separate 10 percent rating under Diagnostic Code 5257 for each knee, which contemplates "slight" knee impairment. As explained, separate ratings under Diagnostic Codes 5003 and 5257 are permitted when there is additional symptomatology supporting the additional rating. See again VAOPGCPRECs 23-97 and 9-98. Ratings higher than 10 percent are not warranted under Diagnostic Code 5257, however, as only slight patellar laxity has been noted, and additional examinations noted no objective findings. This evidence is not consistent with a "moderate" level of impairment, much less a "severe" level. C. Bilateral Plantar Fasciitis This additional disability is currently assigned a 10 percent rating under Diagnostic Code 5299-5276. When an unlisted disease or injury is encountered, it will be rated by analogy under a diagnostic code built up using the first 2 digits from that part of the Rating Schedule most closely identifying the body part or system affected and by using "99" for the last 2 digits. Id. Diagnostic Code 5276 concerns pes planus (flatfeet). Under that Diagnostic Code, pes planus will be rated a 10-percent disabling for moderate involvement, whether unilateral or bilateral, with objective evidence of weight-bearing line over or medial to the great toe, inward bowing of the tendon Achilles, pain on manipulation and use of the feet. A 30 percent evaluation is assignable for severe bilateral involvement, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities, etc. A 50 percent rating is assignable for pronounced bilateral acquired flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendon Achilles on manipulation, not improved by orthopedic shoes or appliances. See 38 C.F.R. § 4.71a, Diagnostic Code 5276. The Veteran underwent a VA examination in November 2004. He reported having pain in his arches when he first begins to take steps after having been off his feet for a period of time. He used arch supports, but these did not provide any benefit. On examination, he had a normal gait and ambulated without assistive devices. He had bilateral pes planus without pronation. There was no swelling or deformity. There was tenderness to palpation under his arches. His Achilles tendons showed normal alignment bilaterally. X-rays from in September 2008 show normal findings of the feet. VA records dated in April 2009 show the Veteran received orthotics for his condition. The Veteran testified at a Board hearing in August 2011. He stated that he was only comfortable in tennis shoes. Wearing dress shoes or sandals caused a "snapping" motion in his feet. His problems were greater on the left side than the right. He had received orthotic inserts, but they did not provide any relief. An additional VA examination was performed in February 2012. The Veteran reported pain in his feet that was accentuated with use. There was no pain with manipulation. There were no swelling or characteristic callosities present. Extreme tenderness of the plantar surface was not present. He did not have marked deformity or decreased longitudinal arch height of either foot with weight-bearing. The weight-bearing line fell over or medial to the great toe bilaterally. There was no marked pronation of either foot. There was no inward bowing, inward displacement, or severe spasm of the Achilles tendon. He reported ambulating regularly with a cane, though he did not bring it to the examination. X-rays of the right foot were normal. X-rays of the left foot revealed arthritis of the first metatarsophalangeal joint, which the examiner stated was unrelated to plantar fasciitis, but rather was associated with aging. Based on the evidence, a rating higher than 10 percent is not warranted for the Veteran's plantar fasciitis. As explained, a higher 30 percent rating requires severe bilateral involvement, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. Although accentuated pain on use was confirmed during the most recent examination, the Veteran's condition was not manifested by any of the other symptoms noted in the criteria for a 30 percent rating during the appeal period. The reports of his 2004 and 2012 VA examinations specifically noted the absence of any swelling, deformity, callosities, or pain on manipulation. The finding of accentuated pain on use, alone, is insufficient to meet the criteria for the higher 30 percent rating under Diagnostic Code 5276. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). Compare with Johnson v. Brown, 7 Vet. App. 95 (1994) (holding that only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). Because of the successive nature of the rating criteria, such that the evaluation for each higher disability rating includes the criteria of each lower disability rating (at least what could be considered most of them), each of the criteria listed in the 30 percent rating must be met in order to warrant such a rating. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). Thus, there is not sufficient basis to assign a rating higher than 10 percent under Diagnostic Code 5276. It also cannot be said the Veteran has what amounts to "moderately severe" or "severe" foot injury (as opposed to "moderate" injury) to alternatively warrant assigning a higher 20 or 30 percent rating under DC 5284. He certainly does not have actual loss of use of his foot, or feet, to warrant assigning an even higher 40 percent rating. Even considering the extent of his pain, he does not have the consequent level of functional loss to support assigning these higher ratings under this other DC, especially given the absence of the several other notable symptoms mentioned. D. Extra-schedular Consideration In evaluating the Veteran's claims for higher ratings, the Board also has considered whether he is entitled to a greater level of compensation on an extra-schedular basis. Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors that would render application of this schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). As part of the evaluation for an extra-schedular rating, the Board has considered the provisions of Mittleider v. West, 11 Vet. App. 181, 182 (1998), which holds that the benefit-of-the-doubt rule applies to determinations of whether a symptom should be attributed to a service-connected condition. To this end, the Board has attributed all potentially service-connected symptoms to the Veteran's service-connected conditions in considering whether he is entitled to an extra-schedular rating. According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). See also Fanning v. Brown, 4 Vet. App. 225, 229 (1993). The question of an extra-schedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). And although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). According to Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extra-schedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the Rating Schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disabilities is inadequate. A comparison between the level of severity and symptomatology of the Veteran's knee disabilities and plantar fasciitis with the established criteria found in the Rating Schedule for these disabilities shows that the rating criteria reasonably describes his disability level and symptomatology, as discussed above. The rating criteria specifically contemplate his knee arthritis and instability, and foot pain and Achilles tendon abnormalities, as well as additional symptoms such as limited flexion, limited extension, deformity, and callosities which are not demonstrated by the evidence. There is no indication that his conditions result in any symptoms that fall so far outside the purview of the Rating Schedule as to render it inadequate. ORDER An initial rating higher than 10 percent for the retropatellar pain syndrome with tendonitis of the left knee is denied. However, a separate 10 percent rating for instability of the left knee is granted, subject to the statutes and regulations governing the payment of VA compensation. An initial rating higher than 10 percent for the retropatellar pain syndrome of the right knee is denied. However, a separate 10 percent rating for instability of the right knee is granted, subject to the statutes and regulations governing the payment of VA compensation. But an initial rating higher than 10 percent for the bilateral plantar fasciitis is denied. REMAND As already alluded to, in December 2012 the AMC granted service connection for right and left wrist tendonitis and assigned each condition an initial 0 percent rating retroactively effective from May 5, 2004, and a higher 10 percent rating as of February 16, 2012. In response, the Veteran filed a timely NOD in February 2013 requesting higher initial ratings. See Fenderson, supra. See also Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (indicating he had to separately appeal this "downstream" issue). He has not however been provided an SOC regarding these "downstream" claims of entitlement to higher initial ratings for his left and right wrist tendonitis conditions. The Court (CAVC) has indicated that the proper course of action in this circumstance is to remand, rather than merely refer, the claims to provide the Veteran this required SOC and to give him opportunity, in response, to complete the steps necessary to perfect his appeal of these claims to the Board by also filing a timely substantive appeal (VA Form 9/equivalent). See Manlincon v. West, 12 Vet. App. 238 (1999). Notably, in his NOD, the Veteran stated that he disagreed with the February 16, 2012 effective date assigned for his left and right wrist conditions. However, because these conditions were service connected retroactively effective from May 5, 2004, his appeal is more appropriately characterized as entitlement to an initial rating higher than 0 percent (so a compensable rating) prior to February 16, 2012, and entitlement to a rating higher than 10 percent since that date. Accordingly, these claims are REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) Provide the Veteran an SOC concerning his claims of entitlement to initial compensable ratings for his left and right wrist tendonitis prior to February 16, 2012, and to ratings higher than 10 percent since. Advise him that he still needs to file a substantive appeal (VA Form 9 or equivalent statement) in response to this SOC to complete the steps necessary to perfect his appeal of these additional claims to the Board. Only if he does should these claims be returned to the Board for further appellate consideration. He has the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs