Citation Nr: 1326719 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 04-09 608 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a bilateral hip disorder, to include as secondary to a service-connected left knee disability. 3. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to a service-connected left knee disability. 4. Entitlement to an increased disability rating greater than 10 percent for left knee instability, status-post meniscectomy. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The Veteran had active military service from April 1971 to July 1972. This appeal comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Offices (ROs) in Wichita, Kansas and St. Louis, Missouri. The Veteran subsequently relocated and jurisdiction of his claims was transferred to the RO in St. Louis, Missouri. That office forwarded his appeal to the Board. This case was first before the Board in August 2005, when the Board remanded the new and material evidence and service connections issues for further development. In that same decision, the Board denied the increased rating and temporary total rating issues. The Veteran appealed the Board's decision to deny the increased rating and temporary total rating issues to the United States Court of Appeals for Veterans Claims (Court). In a February 2008 Memorandum Decision, the Court vacated the Board's 2005 decision as to the increased rating and temporary total rating issues and remanded the appeal. This case was again before the Board in April 2009, when the Board remanded the increased rating and temporary total rating issues for further development. In that same decision, the Board denied the new and material evidence and service connections issues. The Veteran appealed the Board's 2009 decision to the Court as to the new and material evidence and service connections issues. The Veteran did not contest the portion of the Board's decision that denied service connection for left hand and flat feet disorders. In a June 2011 Memorandum Decision, the Court vacated the Board's 2009 decision as to the new and material evidence and service connections issues and remanded the appeal to the Board. Specifically, the Court held that the Board failed to consider competent lay statements from the Veteran and failed to properly consider whether VA examinations as to etiology were warranted by the evidence of record. Upon return from the Court, in September 2011, the Board sent a letter to the Veteran and his attorney informing him that he had 90 days to submit additional evidence with an indication as to whether he desired a remand for the Agency of Original Jurisdiction (AOJ) to consider the evidence or whether he waived this right. See generally 38 C.F.R. § 1304 (2012). In response, in December 2011, the Veteran and his attorney submitted additional argument and medical treatise evidence with a waiver of AOJ consideration. In March 2012, the Board reopened the bilateral hearing loss and low back disorder claims on the basis of new and material evidence, and remanded the underlying claims on the merits for further development. In that decision, the Board also remanded the remaining service connection issues, the increased rating issue, and temporary total rating issues to the RO for further development which included affording the Veteran additional VA examinations. In a December 2012 rating decision, the RO granted service connection for right knee strain, degenerative disc disease of the lumbar spine, hallux valgus of the right great toe, and hallux valgus of the left great toe, as well as a temporary total rating based on convalescence was assigned from May 31, 2002. These awards represent a complete grant of those benefits sought. See AB v. Brown, 6 Vet. App. 35 (1993). The most recent evidence of record indicates that the Veteran is employed but recently had to accept part-time work due to health conditions related to his back and knees in particular. See September 2012 VA back examination report. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the U.S. Court of Appeals for Veterans Claims (Court/CAVC) held that VA must address the issue of entitlement to a TDIU in increased-rating claims when the issue of unemployability either is raised expressly or by the record. He has therefore raised a claim of TDIU. Pursuant to Rice, the issue of a TDIU IS REFERRED to the RO. The issues of entitlement to service connection for bilateral hearing loss, bilateral hip disability, and psychiatric disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO. FINDING OF FACT Moderate recurrent subluxation or lateral instability of the left knee is not shown or more nearly approximated. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for left knee instability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. Duties to Notify and Assist As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all elements of a claim, including the disability rating and effective date elements. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). This notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary 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 and the Veteran is given an 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 found that VCAA notice errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, that the error is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). As specifically concerning increased rating claims such as knee claim on at issue here, the Federal Circuit Court overturned the lower Court's (CAVC's) ruling in concluding that generic or general notice is sufficient and need not be tailored to each specific Veteran's individual circumstances, including in terms of specifying alternative diagnostic codes and the submission of "daily life" evidence, etc. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). With respect to the increased rating claim for left knee disability, the RO sent pre-adjudicatory letters to the Veteran in February 2002, March 2006, May 2009, April 2012, and June 2012. Collectively, those letters apprised him of the type of evidence and information needed to substantiate his claim and of his and VA's respective responsibilities in obtaining this supporting evidence. The Veteran was also informed how an appropriate disability rating and effective date are assigned. After the issuance of all notice letters, the claim was readjudicated in a December 2012 SSOC. VA's duty to assist him in fulfilling developing the evidence concerning his claim includes assisting him in the procurement of records and, when necessary, providing an examination. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the claims file contains his service treatment records (STRs), as well as his post-service VA and private evaluation and treatment records, records from the Social Security Administration, and lay statements. The Veteran had undergone VA compensation examinations which assessed and reassessed the severity of his left knee disability. The medical evidence of record is sufficient to decide this left knee claim. Neither the Veteran nor his attorney has identified, and the record does not otherwise suggest, any additional existing evidence that is necessary for a fair adjudication of the claim being decided herein that has not been obtained. No further notice or assistance to him with his claims is required. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Analysis of the Claim for a Higher Left Knee Rating VA treatment records show that the Veteran has osteoarthritis of the left knee and has periodic complaints of pain with walking. In April 2002, the Veteran complained of moderate knee discomfort and mechanical left knee symptoms with clicking and popping in the knee. X-rays showed medial compartment arthrosis of the knee, but the Veteran complained of more lateral symptoms. Because the pain pattern did not correlate with the radiographs, it was determined that arthroscopic surgery would later be performed in an effort to find the cause of the mechanical symptoms - possibly chondromalacia, meniscal degeneration or loose bodies. Treatment records, however, do not show that arthroscopic surgery was performed on the Veteran's left knee subsequent to the April 2002 findings. In June 2002, the Veteran underwent VA examination of the left knee and complained of left knee pain with daily feelings of locking or catching with motion as well as instability, occasional stiffness and swelling, and a popping sensation in the knee. He stated that his pain was more severe with prolonged standing and that the knee pain was relieved with rest; that during flare-ups, pain caused difficulty standing and walking and he sometimes used a cane and/or a knee brace. Upon examination, there was no significant valgus or varus deformity, no swelling, no significant edema or effusion, and no significant tenderness. There was possible patellar instability with flexing, but the knee appeared stable with the Lachman's test and both the medial collateral ligament and the lateral collateral ligament were stable. The knee exhibited mild crepitation and the Veteran maintained flexion to 130 degrees, with pain from 110 degrees to 130 degrees; he could not extend his left knee beyond 15 degrees. The examiner assessed mechanical popping and mild instability and opined that these two symptoms affected the Veteran's daily activities and caused additional limitation of function during flare-ups. In March 2003, he was diagnosed with left knee arthrosis. In September 2003, the Veteran was determined to have bilateral claudication of the lower extremities, left greater than right, with severe arteriosclerotic changes of the most distal part of the left lower extremity. X-rays of the left knee taken in February 2005 showed evidence of degenerative changes. In November 2005, the Veteran presented to a VA hospital with complaints of left knee pain after falling the night before. On examination, there was no obvious deformity with mild effusion of the anterior superior and anterior patella and knee. There was stabilization to medial and lateral stress. There was mild tenderness. Range of motion was from zero to 140 degrees with pain. No instability was shown. Muscle strength was appropriate and equal. Assessment was degenerative joint disease (DJD) of the left knee as shown on x-rays. X-rays of the left knee performed in February 2005 revealed degenerative changes of all three compartments deemed to have progressed only slightly since x-rays were taken in March 2003; small effusion was also noted. In July 2010, the Veteran underwent a VA orthopedic examination. Range of left knee motion was from full extension to 120 degrees of flexion. After the final range of repetitive motion there was no change in motion, but pain, fatigability, weakness, lack of endurance of the left knee was noted. There was no incoordination of the knee. There was moderate patellofemoral crepitus - medial and lateral femortibial crepitus. Multiple scars were seen on the left knee - a 9 cm anteromedial scar, an 8 cm posteromedial scar, and a 5 cm anterior lateral scar. Healed arthroscopic scars on the left knee were also seen. There was 2cm of atrophy in the left thigh. Calf circumferences were equal, bilaterally. There was left knee medial and lateral joint line tenderness. There was no joint effusion. Patella alignment and tracking was normal with no subluxation. Ligament testing in the left knee demonstrated a negative Lachman's test, no varus or valgus laxity, and negative drawer sign. Strength in the left quadricep and hamstring was 2/5. X-rays of the left knee showed increased medial and lateral joint space narrowing from 2006. On the lateral view, there was an ovoid loose body in the posterior compartment and patellofemoral spurs on the left knee. Diagnosis was osteoarthritis, left knee with prior surgery. X-rays of the left knee taken in July 2011 showed medial space narrowing with mild spur formation and posterior medial loose body. In September 2012, the Veteran underwent a VA orthopedic examination. He was wearing bilateral Neoprene knee braces with medial and lateral hinges. He stood with normal alignment of the left knee. He had a slight antalgic limp favoring the left leg. Range of left knee motion lacked 5 degrees full extension and flexed to 120 degrees. Pain was present at the extreme of full flexion. The pain was moderate along with fatigability, weakness, and lack of endurance. Quadricep and hamstring strength on the left was 3/5. There was moderate patellofemoral crepitus in the left knee during range of motion testing. Surgical scars on the left knee were present. No atrophy was found in the left thigh or calf. There was no localized tenderness in the left knee. Patellofemoral joint showed no instability, and no subluxation with normal tracking. Ligament testing was negative with negative Lachman's test. No varus or vaglus laxity. Drawer sign was negative. Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002). Evaluations of a service-connected disability require review of the entire medical history regarding the disability. 38 C.F.R. §§ 4.1, 4.2. If there is a question that arises as to which evaluation to apply, the higher evaluation is for application if the disability more closely approximates the criteria for that rating; otherwise, the lower rating is for assignment. 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. Where entitlement to compensation already has been established and increase in the 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 reviewed all of the evidence of record, the more critical evidence ("temporal focus") consists of that generated during the appeal period, which, in actuality, extends from one year prior to the filing of this increased-rating claim. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). And the Court has held that, in determining the present level of disability over this time span, a "staged" rating is required if the factual findings show distinct time periods when the service-connected disability exhibits symptoms warranting different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, premature or excess fatigability, or incoordination is demonstrated, assuming these factors are not already contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). This includes when rating spinal disabilities, such as determining whether there is additional limitation of motion on account of these factors. See Cullen v. Shinseki, 24 Vet. App. 74, 85 (2010). Functional loss due to pain is rated at the same level as functional loss where motion is impeded. Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). Moreover, the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or reasonably by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). Although pain may cause functional loss, pain itself does not constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (emphasis added). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," to constitute functional loss. Id.; see 38 C.F.R. § 4.40. Separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25; see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). However, the evaluation of the same disability under various diagnoses is to be avoided, as this would violate VA's anti-pyramiding regulation - 38 C.F.R. § 4.14; Fanning v. Brown, 4 Vet. App. 225 (1993). 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). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as the Veteran's relevant medical history, his current diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). While the Veteran is competent to offer evidence as to the visible symptoms or manifestations of a disease or disability, his belief as to its current severity under pertinent rating criteria or the nature of the service-connected pathology is not probative evidence. Layno v. Brown, 6 Vet. App. at 470 (1994); Grottveit v. Brown, 5 Vet. App. at 92-93 (1993). Diagnostic Code 5010 provides that traumatic arthritis, when substantiated by X-ray findings, is to be evaluated under Diagnostic Code 5003 as degenerative or osteoarthritis, which in turn indicates the disability will be rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved - which, here, are Diagnostic Code 5260 for limitation of flexion and Diagnostic Code 5261 for limitation of extension. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. According to Diagnostic Code 5003, when the limitation of motion of the specific joint or joints involved is noncompensable (i.e., 0 percent) under the appropriate diagnostic codes, 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. Moreover, under Diagnostic Code 5003, in the absence of limitation of motion, a 10 percent rating is warranted where there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A higher 20 percent rating requires X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. For purposes of rating disability from arthritis, the knee is considered a major joint. 38 C.F.R. § 4.45(f). Diagnostic Code 5260 provides for the evaluation of limitation of flexion of the knee. See 38 C.F.R. § 4.71a. A noncompensable rating is warranted when leg flexion is limited to 60 degrees. A 10 percent rating is warranted when it is limited to 45 degrees, a 20 percent rating is warranted when it is limited to 30 degrees, and a 30 percent rating is warranted where flexion is limited to 15 degrees. Diagnostic Code 5261 provides for the evaluation of limitation of extension of the knee. See 38 C.F.R. § 4.71a. A noncompensable rating is warranted when leg extension is limited to 5 degrees. A 10 percent rating is warranted when it is limited to 10 degrees, a 20 percent rating is warranted when it is limited to 15 degrees, a 30 percent rating requires extension limited to 20 degrees; a 40 percent rating requires extension limited to 30 degrees; and a 50 percent rating requires extension limited to 45 degrees. Normal range of motion of a knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71 (2012), Plate II. Additionally, the Board must consider whether the Veteran is entitled to separate ratings under Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg). VAOPGCPREC 9-04 (September 17, 2004), published at 69 Fed. Reg. 59,990 (2004). Specifically, where a Veteran has both a limitation of flexion and a limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. Id. Separate ratings may also be assigned for limitation of flexion and limitation of extension of the same knee. Specifically, where a Veteran has both a compensable limitation of flexion and a compensable limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. VAOPGCPREC 9-04 (Sept. 17, 2004), 69 Fed. Reg. 59990 (2005). Under Diagnostic Code 5257, "other" knee impairment - including recurrent subluxation or lateral instability, warrants a 10 percent rating if resulting in slight disability, a 20 percent rating for moderate disability, and a 30 percent rating if it is severe. The words "slight," "moderate," and "severe," as used in the various diagnostic codes, are not defined in the VA Schedule for Rating Disabilities. 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 (2012). Under Diagnostic Code 5258, a 20 percent rating may be assigned for dislocation of the semilunar cartilage of the knee with frequent episodes of 'locking,' pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258 (2012). Under Diagnostic Code 5259, a 10 percent rating may be assigned for removal of the semilunar cartilage, if symptomatic. 38 C.F.R. § 4.71a, Diagnostic Code 5259 (2012). 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. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (July 1, 1997; revised July 24, 1997). The General Counsel subsequently clarified in VAOPGCPREC 9-98 (August 14, 1998) that, for a knee disability rated under Diagnostic Code 5257 to warrant a separate rating for arthritis based on x-ray findings and limitation of motion, limitation of motion under Diagnostic Code 5260 or 5261 need not be compensable but must at least meet the criteria for a zero-percent rating. VA's General Counsel further explained that, if a Veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, a separate rating for arthritis could also be based on x-ray findings and painful motion under 38 C.F.R. § 4.59. This is because, read together, Diagnostic Code 5003 and 38 C.F.R. § 4.59 provide that painful motion due to degenerative arthritis, which is established by x-ray, is deemed to be limitation of motion and warrants the minimum rating for a joint, even if there is no actual limitation of motion. Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). In this case, the RO rated the Veteran's left knee instability, status-post operative residuals of left knee meniscectomy, as 10 percent disabling, pursuant to Diagnostic Code 5257, which represents slight recurrent subluxation or lateral instability. After a complete review of the record, the Board finds that a rating higher than 10 percent is not warranted for left knee instability. Though the Veteran has complaints of "giving way" in his left knee, the 2002 VA examiner characterized it as only "mild," and the 2010 and 2012 VA examiners both stated that the Veteran's patellofemoral joint showed no indication of instability. He had normal patella alignment and tracking, with no subluxation. Drawer sign was negative during both examinations. As moderate lateral instability or recurrent subluxation of the left knee has not been shown or more nearly approximated, a rating higher than 10 percent for left knee instability is not warranted. The DeLuca factors are not for consideration when evaluating instability under Diagnostic Code 5257. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). There is also x-ray evidence of arthritis in the Veteran's left knee. A higher rating of 20 percent is warranted under Diagnostic Codes 5260 or 5261 if there is evidence of flexion limited to 30 degrees or extension limited to 15 degrees. Flexion of the left knee has been no worse than 120 degrees during the appeal period, and even considering the evidence of pain and other factors, the criteria for a higher rating under Diagnostic Code 5260 are not met. Further, although the Veteran exhibited extension limited to 15 degrees during the 2002 examination, the Board notes that he has already been compensated for this manifestation. The RO awarded the Veteran a separate 30 percent rating for arthritis of the left knee, effective from November 8, 2001 forward. Specifically, this separate rating is based on limitation of extension of the left knee under Diagnostic Code 5261 with additional limitation of motion during a flare-up due to pain. See October 2005 rating decision. The evidence still shows that his left knee is limited to no more than 15 degrees with pain on motion. It is also noted that the Veteran had full left knee extension during his 2010 VA examination and only 5 degrees of limitation of extension during his most recent VA compensation examination in 2012. A higher, separate rating for left knee arthritis under Diagnostic Code 5261 is not warranted. The Board also considered whether the Veteran meets the criteria for a separate rating for limitation of flexion of the left knee under Diagnostic Code 5260; however, he does not meet the criteria for a compensable rating under that code. As noted, the Veteran's flexion in his left knee has been limited to no worse than 120 degrees during the appeal period. Even considering the evidence of moderate pain, lack of endurance, and fatigability shown during September 2012 range of motion testing, the Veteran does not exhibit a compensable level of limitation of flexion. Also, to assign two separate ratings for painful motion under Diagnostic Codes 5260 and 5261 would be pyramiding. See 38 C.F.R. § 4.14. A separate rating for limitation flexion is therefore not in order. As there is medical evidence of residual surgical/arthroscopic scars on the Veteran's left knee, the Board also considered the diagnostic codes pertaining to scars. During the pendency of his appeal, the rating criteria for scars were changed twice during the course of this appeal, effective August 30, 2002 and October 23, 2008. See 73 Fed. Reg. 54,708 (Sept. 23, 2008); 67 Fed. Reg. 49590 -49599 (July 31, 2002). The 2008 amendments, however, are only effective for claims filed on or after October 23, 2008, although a claimant may request consideration under the amended criteria. As his claim was received in 2001 and he has not requested review under the revised criteria, the 2008 amendments are not applicable in this appeal. Where a law or regulation changes after the claims have been filed, but before the administrative or judicial process has been concluded, the version most favorable to the Veteran applies unless Congress provided otherwise or permitted the Secretary of VA to do otherwise and the Secretary did so. See VAOGCPREC 7-2003. The Board will therefore evaluate the Veteran's surgical scars under both the former (pre-August 2002) and the revised (pre-October 2008) schedular criteria, keeping in mind that the revised criteria may not be applied to any time period before the effective date of the change. See 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000; Green v. Brown, 10 Vet. App. 111, 117 (1997). Prior to August 30, 2002, scars were rated under 38 C.F.R. § 4.118, Diagnostic Code 7800 through 7805 (2002). Diagnostic Code 7800 provided ratings for scars of the head, face, or neck. Diagnostic Codes 7801 and 7802 provided ratings for scars from second and third degree burns. Obviously, these provisions are not for application, given the nature of the Veteran's disability, which consists of a post-operative residual scar of the left knee. Under Diagnostic Code 7803, a maximum 10 percent rating was assigned for scars that are poorly nourished, with repeated ulceration. Under former Diagnostic Code 7804, a maximum 10 percent was assigned for scars which are tender and painful on objective demonstration. No higher rating was available under these provisions. Under Diagnostic Code 7805, scars may be rated based on limitation on function of the part affected. Prior to October 23, 2008, Diagnostic Code 7800, like its predecessor, concerned scars of the head, face or neck and is therefore not applicable to this case. Diagnostic Code 7801 concerns scars that are deep and cause limited motion. Diagnostic Code 7802 concerned superficial scars that do not cause limitation of motion and involve an area measuring 929 square centimeters or 144 square inches or greater. The medical evidence shows that the Veteran has multiple scars on his left knee - a 9 cm anteromedial scar, an 8 cm posteromedial scar, and a 5 cm anterior lateral scar. He also has healed arthroscopic scars on the left knee. Notably, there are no findings or complaints of scar pain or tenderness nor is there any indication that the scars are poorly nourished, cause limited motion, or measure greater than 144 square inches. A separate rating for left knee surgical/arthroscopic scars is not warranted. The Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, irrespective of whether they have been raised by him, his representative, or otherwise by the record, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In finding that a rating greater than 10 percent is not warranted for the Veteran's left knee instability, the Board considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The Board is unable to identify a reasonable basis for granting a rating in excess of 10 percent for the Veteran's left knee instability. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). In exceptional cases an extra-schedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of this VA regulation, for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of his disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, though, the Veteran's instability in the knee is primarily productive of a giving way feeling, a manifestation contemplated in the applicable criteria. See 38 C.F.R. § 4.71a, DC 5257. Additionally, the Veteran's knee scars are not painful, tender, and do not cause limited motion of any affected part. Referral to the Under Secretary for Benefits or to the Director of Compensation and Pension (C&P) for extra-schedular consideration is not therefore appropriate. Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). ORDER A rating in excess of 10 percent for left knee instability is denied. REMAND In March 2012 the Board directed that the Veteran be examined for medical nexus opinions concerning his bilateral hearing loss, bilateral hip disorder, and psychiatric claims. He had these requested examinations in July and September 2012. For various reasons, however, this VA examiner's opinions are inadequate A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand orders. Where the remand orders of the Board were not complied with, the Board itself errs in failing to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). This obligation is mandatory, not discretionary. Accordingly, the case is REMANDED for the following action: 1. After obtaining and associating with the claims file any outstanding evidence, forward the Veteran's claims file to the VA examiner who conducted July 2012 audiology examination or, if she is unavailable, from another suitably qualified clinician. The purpose of the addendum is to ascertain whether the Veteran's bilateral hearing loss is related to acoustic trauma during service. The claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. Although an additional review of the claims file is imperative, the Board calls the examiner's attention to the following: *STRs are negative for any complaint, treatment, or diagnosis of hearing loss. The Veteran's induction and separation examinations did not reveal hearing loss, although his separation examination was performed by a whispered-voice test, which has limited accuracy. * The Department of Defense's Duty MOS Noise Exposure Listing indicating that the Veteran's MOS as a boatswain's mate involved a "high" probability of noise exposure. *The Veteran filed a service connection claim for hearing loss in September 1972. *A November 1994 nursing record indicating that he was "hard of hearing." *The July 2012 VA examination report and opinion. In the requested addendum, the examiner should clarify whether the Veteran's bilateral hearing loss began during active service, is related to any incident of service, or manifested within one year of separation from service. In doing so, the examiner must specifically address: a. The Veteran's MOS as a boatswain's mate and DoD's determination that a boatswain's mate is exposed to a "high" probability of noise exposure; b. The Veteran's September 1972 claim of entitlement to service connection for hearing loss which reportedly was prior to his motorcycle use (see attorney's January 2013 written argument); c. his report of one year of post-civilian occupational exposure in construction and one year of post-civilian occupational exposure in maintenance and carpentry. d. his competent report of having had continuous hearing difficulty since service discharge. A complete rationale should be provided for any opinion expressed and conclusion reached. THE EXAMINER IS ADVISED that he or she must provide an explanation for any conclusions reached. The Courts have held that the Board must evaluate any medical opinions by review of multiple factors, including but not limited to whether the examiner: conducted a personal interview of the Veteran and review of the claims folder including electronic "Virtual VA" filings; conducted clinical testing and explained findings, and most importantly whether the examiner fully explained his or her findings and opinion. THE EXAMINER IS ALSO ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED AND OR THAT THE EXAMINER HAS EXPERTISE IN THE SUBJECT MATTER IS NOT ADEQUATE TO FIND THAT THE EXAMINATION IS SUFFICIENT. 3. Return the claims file to the VA examiner who conducted September 2012 hip examination or, if he is unavailable, from another suitably qualified clinician, for an addendum medical opinion. The purpose is to clarify whether the Veteran has a current hip disorder that is related to service or a service connected disability. The claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. Although an additional review of the claims file is imperative, the examiner's attention is drawn to the following: *STRs are negative for any complaint, treatment, or diagnosis of a bilateral hip disorder. * VA and private treatment records with X-ray reports dated in the 1990s and 2000s document bilateral hip pain and arthritis. *The Veteran also credibly reported bilateral hip pain during the 1990s and 2000s. There is some suggestion of a secondary relationship to the left knee. *A March 1990 statement in which the Veteran describes unbearable pain in his knee that "goes up to my hip and down to my foot." *An April 1993 medical record noting the Veteran's complaints of both left knee pain and right hip pain. *A May 1994 document noting the Veteran's complaints of pain in his, hips, that "comes from my left side." *A September 1994 medical record showing the Veteran's complaints of pain in his left knee and both hips. *X-rays of the right hip taken at VA in September 1994 showing minimal arthritic changes. * An October 1994 VA discharge summary record showing Axis III diagnosis of osteoarthritis of both hips. *In November 1994, the Veteran complained of hip pain status- post injury in service. *A June 2002 VA examination report in which the Veteran described his habit of compensating for his left knee which results in pain in other areas. *July 2005 x-rays revealing degenerative changes in both hips. * Internet medical treatise evidence suggesting that back problems can cause hip pain. *The Veteran's assertion that he places increased stress and pressure on his hips on account of his left knee disability. See January 2003 claim; December 2003 representative statement; December 2011 attorney letter. *The September 2012 VA examination report and medical opinion finding no current pathology in either hip. In the requested addendum, the examiner must clarify whether the Veteran has a current bilateral hip disability, and in doing so, must reconcile the opinion with the prior diagnose of arthritis shown in 1994 (and July 2005). If the examiner determines that a bilateral hip disorder currently exists, he should then determine whether it began in service, is otherwise related to service, or alternatively, whether it is proximately due to or the result of the Veteran's service-connected left knee or low back disabilities. Reconcile this opinion with all evidence, to include the Veteran's lay statements and internet medical treatise information. A complete rationale should be provided for any opinion expressed and conclusion reached. THE EXAMINER IS ADVISED that he or she must provide an explanation for any conclusions reached. The Courts have held that the Board must evaluate any medical opinions by review of multiple factors, including but not limited to whether the examiner: conducted a personal interview of the Veteran and review of the claims folder including electronic "Virtual VA" filings; conducted clinical testing and explained findings, and most importantly whether the examiner fully explained his or her findings and opinion. THE EXAMINER IS ALSO ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED AND OR THAT THE EXAMINER HAS EXPERTISE IN THE SUBJECT MATTER IS NOT ADEQUATE TO FIND THAT THE EXAMINATION IS SUFFICIENT. 4. Return the claims file to the psychologist who conducted July 2012 VA mental health examination (or, if she is unavailable, from another suitably qualified clinician) to obtain an addendum. The purpose of the addendum is to determine whether any current psychiatric disorder is related to service or the service-connected left knee disability. The claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. Although an additional review of the claims file is imperative, the examiner's attention is drawn to the following: * STRs are negative for any complaint, treatment, or diagnosis of an acquired psychiatric disorder. * VA and private treatment records dated in the 1990s and 2000s documenting treatment for poly-substance abuse and dependence, an anxiety disorder, a depressive disorder, and a schizoid adaptation, among other diagnoses. * The Veteran's reports mental health issues in the 1990s and 2000's. In several records, he indicates his first alcohol abuse began around 1978. There is some suggestion of a secondary relationship to the left knee. *A March 1993 medical record documenting a psychologist reporting that the Veteran experiences "heroic fantasies" about a tour of duty in Vietnam, and that he broods about being cheated out of that experience by his injury. *A May 1993 mental health evaluation report in which the Veteran described how his left knee injury kept him from going to Vietnam, and then stated, "I felt cheated." These medical and lay statements potentially link his depression and substance abuse to his service-connected left knee. * An August 1994 medical record showing that the Veteran told the examining physician that "the cause of his using drugs is to relieve his knee pains." * Internet medical treatise evidence indicating that depression can be secondary to chronic pain from orthopedic disorders. * The Veteran's statement that his current psychiatric disorder is secondary to his left knee disability. He says his service-connected left knee injury caused depression and guilt because he was not able to go to Vietnam. See August 2003 claim; December 2003 representative statement; December 2011 attorney letter. *The July 2012 VA examination report and opinions. In the requested addendum, the examiner is asked to address the following: a. Indicate all psychiatric disorders currently shown since the date of the claim in 2001, to include depressive disorder and an anxiety disorder with depressive features, and address and explain why the Veteran's alcohol and substance dependence is not an underlying symptom of any diagnosed psychiatric disorder. b. For any acquired psychiatric disorder currently shown, clarify whether it is proximately due to, the result of, or alternatively chronically aggravated or worsened by the Veteran's left knee disability. If the examiner believes that there is chronic aggravation or worsening of any current acquired psychiatric disorder by the left knee, he should also provide a medical opinion as to the degree of identifiable increased disability that has been produced by the aggravation. If the degree of increased disability cannot be quantified, the examiner should so indicate. A complete rationale should be provided for any opinion expressed and conclusion reached. THE EXAMINER IS ADVISED that he or she must provide an explanation for any conclusions reached. The Courts have held that the Board must evaluate any medical opinions by review of multiple factors, including but not limited to whether the examiner: conducted a personal interview of the Veteran and review of the claims folder including electronic "Virtual VA" filings; conducted clinical testing and explained findings, and most importantly whether the examiner fully explained his or her findings and opinion. THE EXAMINER IS ALSO ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED AND OR THAT THE EXAMINER HAS EXPERTISE IN THE SUBJECT MATTER IS NOT ADEQUATE TO FIND THAT THE EXAMINATION IS SUFFICIENT. 5. The RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing physician for corrective action. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. Then adjudicate these claims in light of this and all other additional evidence. If the claims are not granted to the Veteran's satisfaction, send him and his representative an SSOC and give them an opportunity to submit additional evidence and/or argument in response before returning this claim to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs