Citation Nr: 1326097 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 12-00 168 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent for right total knee arthroplasty. 2. Entitlement to a disability rating in excess of 10 percent for right knee instability. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and fiancée, M.M. ATTORNEY FOR THE BOARD Saira Spicknall, Counsel INTRODUCTION The Veteran served on active duty from September 1979 to September 1982. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran testified at a hearing at the VA Central Office in Washington, DC before the undersigned Acting Veterans Law Judge (Central Office hearing) in November 2012. A transcript of that hearing has been associated with the claims file. As discussed in further detail below, the Board observes that a claim for a total disability rating based upon individual unemployability (TDIU) has not been raised in connection with the increased rating claims on appeal. 38 C.F.R. § 4.16 (2012); Rice v. Shinseki, 22 Vet. App. 447 (2009). A review of the Virtual VA paperless claims processing system reflects that additional records have been added to the present appeal. These records include VA medical records. A statement of the case (SOC) was issued in November 2011, which addressed this additional evidence. The the issue of entitlement to service connection for a hip disability as secondary to the service-connected right knee disability has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. Please 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). FINDING OF FACT Throughout the duration of the appeal, the Veteran's right total knee arthroplasty and right knee instability have been mainly productive of chronic residuals consisting of severe painful motion and weakness. CONCLUSIONS OF LAW 1. The criteria for a 60 percent disability rating for the Veteran's right total knee arthroplasty have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5055 (2012). 2. Given the award of a 60 percent disability rating for the Veteran's right total knee arthroplasty, the assignment of a disability rating in excess of 10 percent for the right knee instability is precluded as a matter of law, in light of the "amputation rule." 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.68, 4.71a, Diagnostic Codes 5055, 5257 (2012); see Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veterans Claims Assistance Act (VCAA) The VCAA, codified, in part, at 38 U.S.C.A. § 5103, was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. § 3.159 (2012). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (2012). The United States Court of Appeals for Veterans Claims (Court) held in Pelegrini v. Principi, 18 Vet. App. 112 (2004) that to the extent possible the VCAA notice, as required by 38 U.S.C.A. § 5103(a) (West 2002), must be provided to a claimant before an initial unfavorable decision on a claim for VA benefits. Pelegrini, 18 Vet. App. at 119-20; see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Prior to the initial adjudication of the Veteran's claims for increased ratings in the October 2010 rating decision, he was provided with VCAA notice in July 2010. The VCAA letter indicated the types of information and evidence necessary to substantiate the claim, and the division of responsibility between the Veteran and VA for obtaining that evidence, including the information needed to obtain lay evidence and both private and VA medical treatment records. The Veteran also received notice in July 2010 pertaining to the downstream disability rating and effective date elements of his claims. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The Veteran's actions are also indicative of his actual knowledge of the requirements for substantiating his increased rating claim. The Veteran has reported his current right knee symptoms to a VA examiner in connection with his claims and has specified in his Central Office hearing that his right knee residuals consisted mainly of weakness and pain, the symptoms required for the next higher disability rating under Diagnostic Code 5055. Based on this evidence, the Board is satisfied that the Veteran had actual knowledge of what was necessary to substantiate his increased rating claim. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). All relevant evidence necessary for an equitable resolution of the issues on appeal has been identified and obtained, to the extent possible. The evidence of record includes VA outpatient treatment reports, an adequate VA examination and statements and testimony from the Veteran, M.M., and his representative. The Board notes that the August 2010 VA examination report reflects that the examiner reviewed the Veteran's past medical history, documented his current medical condition, and rendered appropriate diagnoses consistent with the remainder of the evidence of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Consequently, the Board concludes that the medical examination is adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In November 2012, the Veteran was afforded a Central Office hearing before the undersigned. The transcript reflects that the Acting Veterans Law Judge conducted the hearing in accordance with the statutory duties to "explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position," pursuant to 38 C.F.R. § 3.103(c)(2), as explained by the Court in Bryant v. Shinseki, 23 Vet. App. 488 (2010). The transcript of the hearing reflects that the Acting Veterans Law Judge identified the material issues on appeal, discussed with the Veteran his current right knee symptomatology and addressed how his current disability warrants a higher disability rating than that which is currently assigned. However, evidence to substantiate the claims was not suggested. As noted above, the Veteran received letters that substantially explained what was required to substantiate his claims and there is no indication that he does not understand what is necessary to substantiate his claim. Additionally, the record does not indicate that there is any relevant overlooked evidence that the Veteran could submit that would aid him. Hence, he was not prejudiced by the undersigned not suggesting the submission of overlooked evidence. See Bryant, 23 Vet. App. at 498 (citing to 38 U.S.C. § 7261(b)(2); Shinseki v. Sanders, 129 S. Ct. 1696, 1704 (2009)). The November 2012 hearing was legally sufficient. The Board observes that a claim for a TDIU has not been raised in connection with the increased rating claim on appeal. The Board has considered the ruling in Rice v. Shinseki, 22 Vet. App. 447 (2009) and that the Veteran is seeking the maximum benefit available for his right knee; however he does not allege that his disabilities prevent him from obtaining or maintaining substantially gainful employment, but rather created difficulty with his employment as a barber, which is supported by the medical evidence, a claim for entitlement to a TDIU rating will not be considered as part of the determination of the claim on appeal. 38 C.F.R. § 4.16 (2012); Rice v. Shinseki, 22 Vet. App. 447 (2009). See November 2012 Central Office hearing transcript. Accordingly, the Board finds that no prejudice to the Veteran will result from the adjudication of his claims in this Board decision. Rather, remanding this case to the RO for further VCAA development would be an essentially redundant exercise and would result only in additional delay with no benefit to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). The Veteran has not indicated that he has any further evidence to submit to VA, or which VA needs to obtain. There is no indication that there exists any additional evidence that has a bearing on this case that has not been obtained. The Veteran and his representative have been accorded ample opportunity to present evidence and argument in support of his appeal. Thus, the Board finds that VA has obtained, or made reasonable efforts to obtain, all evidence that might be relevant to the issues on appeal, and that VA has satisfied the duty to assist. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103 (2012). Pertinent Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. See 38 U.S.C.A. § 1155; 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 for the higher evaluation; otherwise, the lower evaluation will be assigned. See 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). When, as here, the Veteran is requesting an increased rating for an established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, the most recent examination is not necessarily and always controlling; rather, consideration is given not only to the evidence as a whole but to both the recency and adequacy of examinations. See Powell v. West, 13 Vet. App. 31, 35 (1999). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different "staged" ratings may be warranted for different time periods. When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath, 1 Vet. App. at 592. Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Veteran's right total knee arthroplasty has been rated under Diagnostic Code 5055, which provides ratings for knee replacements. Under Diagnostic Code 5055, for one year following implantation of a knee prosthesis for a service-connected knee disability, a 100 percent rating is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5055. Thereafter, a 60 percent rating is assigned when there are chronic residuals consisting of severe painful motion or weakness in the affected extremity; or, a minimum 30 percent rating is assigned. Id. When there are intermediate degrees of residual weakness, pain, or limitation of motion, these intermediate residuals are to be rated by analogy under 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5261, or 5262. Id. The Veteran's right knee had also been assigned a separate disability rating for instability under Diagnostic Code 5257 since November 1, 2002. Diagnostic Code 5257 provides ratings for other impairment of the knee that includes recurrent subluxation or lateral instability. Slight recurrent subluxation or lateral instability of the knee is rated 10 percent disabling; moderate recurrent subluxation or lateral instability of the knee is rated 20 percent disabling; and severe recurrent subluxation or lateral instability of the knee is rated 30 percent disabling. 38 C.F.R. § 4.71a. Analysis In statements and testimony presented throughout the duration of the appeal, the Veteran has maintained that his right knee disability warrants a higher disability rating than those presently assigned. He asserts his right knee is productive of symptoms consisting mainly of: chronic pain; weakness; atrophy of the quadriceps; giving way; and fatigue. See November 2012 Central Office hearing transcript. In the November 2012 Central Office hearing, the Veteran also testified that his right knee required the use of a locking knee brace. See id. VA outpatient treatment records reflect that the Veteran underwent a total right knee arthroplasty in September 2009. By an October 2009 rating decision, the RO awarded him a 100 percent disability rating under Diagnostic Code 5055 from September 14, 2009 to October 31, 2010 and thereafter awarded a disability rating of 30 percent from November 1, 2010. The Veteran filed his current claim for an increased disability rating for the right knee in June 2010. In an August 2010 VA examination, the Veteran reported that since his right total knee replacement, he had weakness and buckling with walking. He also stated this condition had gotten progressively worse. Treatment included medication, physical therapy and bracing. Reported right knee joint symptoms included: deformity; giving way; instability; pain; stiffness; weakness; incoordination; decreased speed of joint motion; repeated effusions; and inflammation with swelling and tenderness. Flare-ups reportedly occurred every two to three weeks, lasting for hours and were described as severe in nature. Precipitating factors included when the knee gave out and alleviating factors included medication. The Veteran reported the effects of flare-ups on his limitation of motion or other functional impairment included that he was unable to stand. He also reported he was able to stand for 15 to 30 minutes and he was able to walk for more than a quarter of a mile, but less than a mile. Assistive devices included a cane, which was always used, a brace which was used three times a day, and orthotics which were used infrequently and intermittently. A physical examination revealed the Veteran had an antalgic gait and abnormal weight bearing, demonstrated by callus formation. Right knee joint findings included bony enlargement, edema, tenderness, weakness, guarding of movement and grinding. No instability was found. A summary of the joint prosthesis noted that the Veteran's right knee demonstrated mild weakness. Range of motion of the right knee was from five to 75 degrees. Normal knee flexion is 140 degrees and normal knee extension is 0 degrees. 38 C.F.R. § 4.71, Plate II. There was no objective evidence of pain with repetitive motion, however, additional limitation of the joint after three repetitions of range of motion were noted with lack of endurance being the most important factor. The Veteran's range of motion after repetitive motion was from 5 to 60 degrees. No joint ankylosis was noted. The examiner noted the Veteran flexed his right knee to 90 degrees while sitting in a chair. A May 2010 x-ray report of the knees was included in the VA examination, demonstrating findings of status post right total knee arthroplasty with a small to moderate sized effusion. The Veteran reported he was currently unemployed from his usual occupation as a barber but not retired. The duration of unemployment was less than a year. He was diagnosed with right knee strain, total knee arthroplasty and edema. Associated problems included: limitation of flexion; instability; osteoarthritis; status post medial meniscectomy and arthroscopy; and right total knee arthroplasty. Significant effects on the Veteran' usual occupation were noted and the impact on occupational activities included a lack of stamina, weakness or fatigue and pain. The resulting work problem included increased absenteeism. The effects on the Veteran's daily activities included: no effects on feeding, toileting, grooming or driving; mild effects on bathing and dressing; moderate effects on shopping, exercise, recreation and traveling; and the prevention of chores and sports. VA outpatient treatment reports from January 2011 to September 2011 reflect that the Veteran's right knee symptoms included: pain; instability; right leg weakness; an antalgic gait; weakness and atrophy of the quadriceps; the use of an IROM knee brace, locking knee brace and cane; and no improvement in the right knee despite exercise. In February 2011, the Veteran's treating physician at VA opined that he was unable to perform his regular job as a barber due to his chronic quadriceps weakness and he recommended the Veteran consider vocational retraining. In September 2011, the VA physician reiterated this opinion and found that there was no surgical or other intervention which would significantly improve the Veteran's condition. After a careful review of the evidence of record and resolving all doubt in favor of the Veteran, the Board finds that, throughout the duration of the appeal, the Veteran's right total knee arthroplasty and right knee instability warrant a 60 percent disability rating under Diagnostic Code 5055, as his right knee disability has been primarily productive of chronic residuals consisting of severe painful motion and weakness. While Diagnostic Code 5055 specifies that a minimum 30 percent rating is assigned or when there are intermediate degrees of residual weakness, pain, or limitation of motion the disability is to be rated by analogy under 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5261, or 5262, no such rating by analogy is applied when there is evidence of chronic residuals consisting of severe painful motion or weakness in the affected extremity. In this case, the Veteran does not warrant a higher rating under Diagnostic Codes 5256, 5261, or 5262. In evaluating the Veteran's right knee disability under the DeLuca criteria, the Board notes that the medical evidence of record demonstrates additional limitation of the joint after repetition of range of motion with the most disabling factors including a lack of endurance and limitation of motion of the right knee, which are specifically considered under the criteria assigned. Diagnostic Code 5055 specifically contemplates weakness, pain and limitation of motion. Therefore the assignment of a higher rating includes the consideration of 38 C.F.R. § 4.40 and 4.45 and DeLuca, 8 Vet. App. 202. See also Mitchell, 25 Vet. App. at 38-43. Further, as the 60 percent disability rating assigned is the maximum rating is assigned for motion loss, the Board finds no legal basis for further consideration of 38 C.F.R. §§ 4.40 and 4.45. Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (consideration of 38 C.F.R. §§ 4.40 and 4.45 is unnecessary where an appellant is in receipt of the maximum rating for limitation of motion). There is a general rule against the "pyramiding" of benefits. See 38 C.F.R. § 4.14; see also Brady v. Brown, 4 Vet. App. 203, 206 (1993). However, the Board acknowledges that a veteran is entitled to separate disability ratings for different manifestations of the same disability when the symptomatology of one manifestation is not duplicative or overlapping of the symptomatology of the other manifestations. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). VA's General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, respectively. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997). In VAOPGCPREC 9-98, 63 Fed. Reg. 56703 (1998), the VA General Counsel further explained that, to warrant a separate rating, the limitation of motion need not be compensable under Diagnostic Code 5260 or 5261; rather, such limited motion must at least meet the criteria for a 0 percent rating. More recently, the VA General Counsel held that a separate rating could also be provided for limitation of knee extension and flexion. VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). Although the medical evidence of record reflects findings of instability, a disability evaluation in excess of 10 percent for instability under Diagnostic Code 5257 is not warranted in this case as it would violate the "amputation rule" because a 60 percent evaluation is being granted for the Veteran's right knee replacement. 38 C.F.R. § 4.68. The "amputation rule" provides that the combined rating for disabilities of an extremity cannot exceed the rating for amputation at the elective level. 38 C.F.R. § 4.68 (2012). In this case, a 60 percent disability rating is assigned if there was an amputation of the thigh, above the knee, at the middle or lower third. 38 C.F.R. § 4.71a, Diagnostic Code 5162 (2012). Amputation of a leg with defective stump and thigh amputation recommended or amputation not improvable by prosthesis controlled by natural knee action may also be assigned a 60 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Codes 5163 and 5164 (2012). The Veteran has two service-connected disabilities related to his right knee. A 60 percent evaluation is assigned for his knee replacement and a 10 percent evaluation is assigned for right knee instability. His combined disability evaluation for his right knee is 60 percent. 38 C.F.R. § 4.25. If the Veteran were assigned a 60 percent evaluation for his right knee replacement and a 20 percent disability evaluation for instability, his combined rating for his right knee would be 70 percent. Id. Further, assignment of separate 10 percent evaluation for either limitation of flexion or extension would also increase his combined disability evaluation to over 60 percent. Id. Under the "amputation rule" pursuant to 38 C.F.R. § 4.68 and 38 C.F.R. § 4.71a, Diagnostic Codes 5161, 5162-5164, a 60 percent disability rating would be the maximum assignable disability rating for the Veteran's right knee disability and the assignment of a 20 percent evaluation for instability would not be permissible. Accordingly, as a matter of law, a disability rating in excess of 10 percent for instability is not assignable and a separate disability rating under Diagnostic Codes 5260 and 5261 also cannot be assigned. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board observes that the lay statements and testimony by the Veteran and his fiancée, M. M., are competent to report on factual matters of which they had firsthand knowledge, e.g., experiencing or witnessing pain or weakness, etc. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board finds that the statements provided by the Veteran and his fiancée, M. M., regarding the effects of his current right knee symptoms on his daily life are competent and credible. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Baldwin v. West, 13 Vet. App. 1 (1999) (the Board must analyze the credibility of the evidence). Thus, Board concludes that, resolving all benefit of the doubt in favor of the Veteran, the current right total knee arthroplasty and right knee instability warrants a disability rating of 60 percent. 38 C.F.R. § 3.102 (2012). See also 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Extra-schedular Consideration The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedural Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). The Board has considered whether referral for an extra-schedular rating is appropriate under the provisions of 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extraschedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In this case, the Board finds that the schedular criteria are adequate to rate the right knee disability under consideration. The rating schedule fully contemplates the described symptomatology, including chronic residuals consisting of severe painful motion or weakness. See 38 C.F.R. § 4.71a, Diagnostic Code 5055. As noted above, a rating in excess of 60 percent is precluded as a result of the amputation rule. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER A disability rating of 60 percent for right total knee arthroplasty and instability is granted, subject to the provisions governing the award of monetary benefits. A disability rating in excess of 10 percent for right knee instability is not assignable as a matter of law. ____________________________________________ D. MARTZ AMES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs