Citation Nr: 1327436 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 96-40 840 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to a compensable evaluation for osteoarthritis of the left knee from March 6, 1995 to December 30, 1996. 2. Entitlement to an evaluation in excess of 10 percent for osteoarthritis of the left knee from December 30, 1996 to January 19, 2011. 3. Entitlement to an evaluation in excess of 10 percent for osteoarthritis of the left knee from January 20, 2011. 4. Entitlement to a compensable evaluation for osteoarthritis of the right knee from March 6, 1995 to November 7, 1995. 5. Entitlement to an evaluation in excess of 10 percent for osteoarthritis of the right knee from November 8, 1995 to January 19, 2011. 6. Entitlement to an evaluation in excess of 10 percent for osteoarthritis of the right knee from January 20, 2011. 7. Entitlement to a compensable evaluation for osteoarthritis of the left ankle from March 6, 1995 to June 8, 2007. 8. Entitlement to an evaluation in excess of 10 percent for osteoarthritis of the left ankle from June 9, 2007 to January 19, 2011. 9. Entitlement to an evaluation in excess of 10 percent for osteoarthritis of the left ankle from January 20, 2011. 10. Entitlement to a compensable evaluation for osteoarthritis of the right ankle from March 6, 1995 to January 19, 2011. 11. Entitlement to an evaluation in excess of 10 percent for osteoarthritis of the right ankle from January 20, 2011. REPRESENTATION Appellant represented by: Daniel Krasnegor, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran served on active duty from February 1956 to May 1958. This matter originally came to the Board of Veterans' Appeals (Board) on appeal from a September 1995 rating decision of the Nashville, Tennessee, Regional Office (RO) of the Department of Veterans Affairs (VA). In January 2000, the Veteran testified at a Travel Board hearing. A transcript of that hearing is of record. The Board, the United States Court of Appeals for Veterans Claims (Court), and the United States Court of Appeals for the Federal Circuit (Federal Circuit) have considered the Veteran's claims previously. In a June 2003 Order, the Court vacated the Board's January 2002 denial of the Veteran's claim and remanded the case for further action. VA appealed that decision to the Federal Circuit. In April 2004, the Federal Circuit remanded the matter for further proceedings consistent with its decision in Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). An October 2005 Court Order set aside and remanded the Board's January 2002 decision for further proceedings consistent with the order. In compliance with the Court remand, the Board remanded the case to the RO in April 2006 for additional development. After such development, the RO continued the denial of entitlement to increased ratings, and returned the case to the Board for further appellate review. In November 2007, the Board again denied the Veteran's claim and the Veteran appealed the decision. In December 2009, the Court affirmed the Board's decision that there was "no evidence of residual reactive arthritis or subsequent osteoarthritis in any joint other than the left knee and left ankle ... except with regard to [the Veteran's] right ankle" and set aside and remanded the remainder of the issues. In a July 2010 remand, the Board noted its belief that the Court intended its holding to pertain to the right knee as opposed to the right ankle and remanded the issues pertaining to both the right knee and the right ankle, in addition to the left knee and left ankle, for additional development. In addition, the Board referred the issues of entitlement to service connection for a cervical and lumbar spine disorder, to include whether new and material evidence has been submitted to reopen such a claim, to the RO for additional development. In a March 2011 rating decision, the RO granted entitlement to service connection for osteoarthritis of the knees and ankles, separately awarding a 10 percent disability rating for each disorder, effective January 20, 2011. In April 2012, the Board recharacterized the issues and granted a 10 percent evaluation for left knee arthritis from October 20, 1997, a 10 percent evaluation for right knee arthritis effective from November 8, 1995, and a 10 percent evaluation for left ankle osteoarthritis from June 9, 2007. The Board denied entitlement to a compensable evaluation from March 6, 1995 to October 19, 1997 and in excess of 10 percent from October 20, 1997 for left knee arthritis; denied entitlement to a compensable evaluation from March 6, 1995 to November 7, 1995 and an evaluation in excess of 10 percent from November 8, 1995 for right knee arthritis; denied entitlement to a compensable evaluation from March 6, 1995 to June 8, 2007 and in excess of 10 percent from June 9, 2007 for left ankle arthritis; and denied entitlement to a compensable evaluation from March 6, 1995 to January 19, 2011 and in excess of 10 percent from January 20, 2011 for right ankle arthritis. In January 2013, counsel for the Veteran and the Secretary of VA filed a Joint Motion for Partial Remand. In that Joint Motion, the parties agreed that the Board's April 2012 decision failed to adequately address the applicability of 38 C.F.R. §§ 4.40, 4.45, and 4.59 with regard to the Veteran's claims for increased ratings for arthritis of the knees and ankles, and that the issues should be remanded to the Board for appropriate action to address the functional loss of knees and ankles based on painful motion, weakness, and atrophy. An Order of the Court dated in January 2013, granted the motion and remanded the issue to this extent. With regard to benefits granted in the April 2012 Board decision, those issues have not been disturbed and are not currently before the Board. As noted above, the issues of entitlement to service connection for cervical and lumbar spine disorders, to include whether new and material evidence has been submitted to reopen such claims, have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are again referred to the AOJ for appropriate action. The issues of entitlement to evaluations in excess of 10 percent for osteoarthritis of both knees and ankles from January 20, 2011, are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. Left knee osteoarthritis was first objectively demonstrated on October 20, 1997, and the first objective evidence of pain on motion was noted in the December 31, 1996 VA examination report. 2. At no time during the appellate term has the Veteran's left knee osteoarthritis been manifested by extension limited to 15 degrees, flexion limited to 30 degrees, subluxation, or instability. 3. Right knee osteoarthritis was first objectively demonstrated on November 8, 1995. 4. At no time during the appellate term has the Veteran's right knee osteoarthritis been manifested by extension limited to 15 degrees, flexion limited to 30 degrees, subluxation, or instability. 5. Left ankle pain with a moderate limitation of motion were first demonstrated on December 31, 1996. 6. At no time during the appellate term has the Veteran's left ankle osteoarthritis been manifested by a marked limitation of motion. 7. Right ankle pain with a moderate limitation of motion were first demonstrated on December 31, 1996. 8. At no time during the appellate term has the Veteran's right ankle osteoarthritis been manifested by a marked limitation of motion. CONCLUSIONS OF LAW 1. From March 6, 1995 to December 30, 1996, the criteria for a compensable evaluation for left knee osteoarthritis were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261 (2012). 2. Effective December 31, 1996 to January 19, 2011, the criteria for a 10 percent disability evaluation, but no higher, for left knee osteoarthritis were met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261. 3. From March 6, 1995 to November 7, 1995, the criteria for a compensable evaluation for right knee osteoarthritis were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261. 4. From November 8, 1995, to January 19, 2011 the criteria for a 10 percent disability evaluation, but no higher, for right knee osteoarthritis were met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261. 5. From March 6, 1995 to June 8, 2007, the criteria for a rating of 10 percent, but no higher, for left ankle arthritis were met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5271. 6. From June 9, 2007 to January 19, 2011, the criteria for a rating in excess of 10 percent for left ankle arthritis were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5271. 7. From March 6, 1995 to January 19, 2011, the criteria for a rating of 10 percent, but no higher, for right ankle arthritis were met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matter Pursuant to the Board's March 2000 Remand, the RO obtained Social Security Administration records, obtained treatment records from VA Medical Center (VAMC), scheduled a VA examination by a rheumatologist, and issued a Supplemental Statement of the Case. Pursuant to the Board's April 2006 Remand, the Appeals Management Center (AMC) scheduled a VA examination by a rheumatologist, readjudicated the Veteran's claim under provision of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) as discussed in more detail below, and issued a Supplemental Statement of the Case. Pursuant to the Board's July 2010 Remand, the RO obtained VA treatment records, scheduled a VA examination by a rheumatologist, and issued a Supplemental Statement of the Case. Based on the foregoing actions, the Board finds that there has been compliance with the Board's Remands. Stegall v. West, 11 Vet. App. 268 (1998). Duties to Notify and Assist The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in May 2006 of the information and evidence needed to substantiate the claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. The case was most recently readjudicated in October 2011. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. Note on Combined Ratings Any disability which has been continuously rated at or above any evaluation of disability for 20 or more years for VA compensation purposes may not be reduced except upon a showing that such rating was based on fraud. 38 C.F.R. § 3.951(b). In June 1973, i.e., over 20 years ago, the Veteran was granted a 20 percent disability rating for rheumatoid arthritis. In the absence of fraud, that rating is now protected by regulation. Where there is more than one service connected disorder, the total disability evaluation is determined by the combined ratings table. 38 C.F.R. § 4.25. As noted above, the Veteran's 20 percent disability evaluation for rheumatoid arthritis may not be reduced. In the analysis below, the Board has kept the Veteran's 20 percent disability rating in mind in determining when and if the Veteran would benefit from receiving separate disability ratings for his disorders as opposed the a combined 20 percent disability rating. As discussed below, 10-percent disability evaluations are being assigned from March 6, 1995, for both knees and both ankles. Applying the combined ratings table, this leads to a disability rating of 34 which rounds to a 30 percent rating assigned. 38 C.F.R. § 4.25. Because this affords the Veteran the highest available benefit, separate ratings are assigned from March 6, 1995. In this decision the Board does not address the bilateral factor rules set forth in 38 C.F.R. § 4.26 because the questions before the Board pertain to what rating should be assigned each distinct disorder. To the extent that the Veteran may disagree with the assigned combined rating he must perfect a timely appeal. Increased Ratings 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. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, as here, the Veteran is requesting a higher rating for an already 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, "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant on motion. Disability of the musculoskeletal system is the inability to perform normal working movement with normal excursion, strength, speed, coordination, and endurance, and that weakness is as important as limitation of motion, and that a part that becomes disabled on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, through atrophy, for example. The provisions of 38 C.F.R. § 4.45 contemplate inquiry into whether there is limitation of motion, weakness, excess fatigability, incoordination, and impaired ability to execute skilled movements smoothly, and pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing, and weight-bearing are also related considerations. The Court has held that diagnostic codes predicated on limitation of motion require consideration of a higher rating based on functional loss due to pain on use or due to flare-ups. 38 C.F.R. §§ 4.40, 4.45, 4.59; Johnson v. Brown, 9 Vet. App. 7 (1997); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The provisions of 38 C.F.R. § 4.59 state that painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. Knees The Veteran's right knee osteoarthritis has been evaluated as noncompensably disabling from March 6, 1995 to November 7, 1995 and 10 percent disabling since November 8, 1995 pursuant to 38 U.S.C.A. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5260-5003. The Veteran's left knee osteoarthritis has been evaluated as noncompensably disabling from March 6, 1995 to October 19, 1997 and 10 percent disabling since October 20, 1997 pursuant to 38 U.S.C.A. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5260-5003. Degenerative arthritis is rated under Diagnostic Code 5003, which provides that degenerative arthritis established by X- ray is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the joint involved. If the limitation of motion of the joint involved is noncompensable, a rating of 10 percent is applicable. 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, but with X-ray evidence of involvement of two or more major joints or two or more minor joint groups and occasional incapacitating exacerbations, a 20 percent evaluation is assigned. With X-ray evidence of involvement of two or more major joints or two or more minor joint groups, a 10 percent rating is assigned. 38 C.F.R. § 4.71, Diagnostic Code 5003. Under 38 C.F.R. § 4.71a, Diagnostic Code 5003, a 10 percent rating is warranted when painful motion is noncompensable under the appropriate diagnostic code but there is a showing of degenerative arthritis established by x-ray findings. Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Pursuant to 38 C.F.R. § 4.71a , Diagnostic Code 5260, which pertains to limitation of flexion of the knee, a 10 percent evaluation is assigned where flexion is limited to 45 degrees; and a 20 percent rating is assigned where flexion is limited to 30 degrees. Pursuant to 38 C.F.R. § 4.71a , Diagnostic Code 5261,which pertains to limitation of extension of the knee, a 10 percent evaluation is assigned for extension that is limited to 10 degrees, and a 20 percent evaluation is assigned for extension that is limited to 15 degrees. Where limitation of range of motion of a joint affected by arthritis is present but to a non-compensable level, a 10 percent evaluation is assigned. 38 C.F.R. 4.71a, Diagnostic Code 5003. Normal (full) range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II (2012). In this case, the Veteran's 10 percent evaluation assigned for right knee arthritis effective November 8, 1995, is based on x-ray evidence of arthritis. The Veteran's 10 percent evaluation assigned for left knee arthritis effective October 20, 1997, appears to be based on a diagnosis of degenerative joint disease of the knees on VA examination. VA treatment records from September to December 1994 include no specific complaints or objective findings of painful knees. A VA examination report, however, dated in May 1994, noted that the Veteran provided a medical history of swelling on and off with a grinding sensation in the knees. The Veteran reported that he could walk up to a block and climb up one flight of stairs but thereafter had to stop because of pain. Significantly, physical examination of the knees revealed no swelling or crepitus, no localized tenderness or deformity, and a full range of knee motion. The Veteran had difficulty in standing and walking on toes or heels but could squat completely. The Veteran was afforded a VA examination in December 31, 1996 at which time he complained of pain, soreness, and occasional knee swelling. On examination, the knees were cool without palpable effusion. There was moderate tenderness on palpitation of the patella. It was noted that the Veteran flinched and grimaced during examination. There was no subluxation or lateral instability demonstrated. Range of motion studies demonstrated active flexion to 125 degrees bilaterally and extension to 0 degrees. Collateral ligaments were intact bilaterally, deep tendon reflexes were 2+ at the knees and drawer tests were negative. Lower extremities had 5/5 muscle strength. X-rays of the knees were found to be within normal limits. Following physical examination and diagnostic testing, the diagnosis was mild seronegative rheumatoid arthritis. The Board finds that a 10 percent disability evaluation is warranted for left knee osteoarthritis for the period since the December 31, 1996 VA examination, but not prior to that date. The Board also finds that a 10 percent rating is warranted for right knee osteoarthritis effective from November 8, 2005, but not prior to that date. As noted above 38 C.F.R. § 4.59 provides that VA intends to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. In this case, the records prior to the December 31, 1996 VA examination are significant for no objective evidence of left knee swelling or crepitus, no objective evidence of tenderness or deformity. During the period prior to December 31, 1996, the Veteran demonstrated a full range of knee motion bilaterally. While the appellant complained of painful knees, prior to the December 31, 1996 examination there was no evidence showing that the left knee was actually painful. There was no objective evidence of any functional loss in either knee joint. The knees were never shown to be unstable, and the joints were never malaligned. Hence, prior to the date of the December 31, 1996 examination the evidence preponderates against entitlement to a compensable rating for the left knee. Given these facts and the absence of arthritis in the right knee prior to November 8, 1995, the Board also finds no basis to assign a compensable rating prior to November 8, 2005. Effective November 8, 2005, there was evidence of right knee osteoarthritis, and painful right knee motion. Hence, the Board will assign a 10 percent rating for the right knee effective November 8, 1995. Lichtenfels v. Derwinski, 1 Vet.App. 484 (1991). Further, effective December 31, 1996, the Board finds evidence that the appellant's left knee was manifested by moderate tenderness on palpitation of the patella, as well as flinching and during examination. While there was no evidence of subluxation or lateral instability, flexion was decreased from 140 degrees to 125 degrees. Further, while x-ray examination was negative for arthritis in the left knee prior to October 1997, the Board will resolve reasonable doubt and find under the provisions of 38 C.F.R. § 4.59, that a 10 percent rating is in order based on painful motion effective December 31, 1996. Burton v. Shinseki, 25 Vet. App. 1 (2011). At no time, however, did the Veteran's manifestations of either his service-connected right and left knee disabilities approach the severity contemplated for a rating higher than 10 percent. As set forth above, in order for the Veteran's service-connected knee disabilities to warrant evaluations in excess of 10 percent, the evidence must show either flexion limited to 30 degrees, or extension limited to 15 degrees. These symptoms have clearly not been demonstrated by the record. See December 31, 1996 VA examination report which notes active knee flexion to 125 degrees bilaterally and extension to zero degrees bilaterally; October 20, 1997 VA examination report which notes passive and active range of motion in all joints was within normal limits; the July 12, 2006 VA examination report notes full range of motion in the right knee and about 10 degree loss of extension in the left knee; March 31, 2007 VA examination report which notes right and left knee range of motion from zero to 130 degrees; and June 9, 2007 VA examination report which notes left knee range of motion from zero to 130 degrees. Indeed, even taking into account the Veteran's complaints of pain, the Board finds that neither knee disability warrants a higher rating. See 38 C.F.R. §§ 4.40, 4.45, 4.71a. See VA examination report dated in March 2007 which notes that there was pain with range of motion testing of the right knee but that repetitive range of motion did not cause increased pain in either knee, fatigability, or a decreased arc of motion in either knee. The report also noted that it was conceivable that pain could further limit function particularly after being on his feet all day but that it was not feasible to attempt to express any functional impairment in terms of additional limitation of motion as the matter could not be determined with any degree of medical certainty; A May 2007 VA examination report notes that the Veteran described frequent episodes of increased joint pain related to activity and weather, and a VA examination reported dated in June 2007 noted that it was conceivable that pain could further limit function particularly with repetition but that it was not feasible to express it in terms of additional limitation of motion as the matter could not be determined with any degree of medical certainty. Thus, there is no objective evidence that Veteran has functional loss or additional limitation of motion due to pain, weakness, and atrophy of a severity to afford him an evaluation higher than 10 percent. The VA General Counsel has held that a Veteran may receive separate ratings under Diagnostic Code 5260 (limitation of leg flexion), and Diagnostic Code 5261 (limitation of leg extension) for disability of the same joint. See VAOPGCPREC 9-2004 (2006). The appellant, however, has never demonstrated a compensable loss of motion in either plane of movement when the evidence is considered in its totality. As such a compensable evaluation would not be warranted under Diagnostic Codes 5260 and 5261. Other knee impairments due to instability or recurrent subluxation are evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5257 as a separate and distinct disability from arthritis of knees. Notably, the appellant is not currently service connected for instability or subluxation in either knee. Hence, this rule does not provide a basis for an increased rating. VAOPGCPREC 23-97 (1997); VAOPGPREC 9-98 (1998); VAOPGPREC 9-04 (2004). Moreover, even if the appellant were service connected for instability, the objective evidence has consistently demonstrated no instability or subluxation. See VA examination reports dated in December 1996, October 1997, July 2006, and March 2007. Given this evidence, entitlement to an evaluation in excess of 10 percent is not warranted at any time during the appeal period for right or left knee osteoarthritis pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5257, 5260, or 5261. The symptoms presented by the Veteran's right and left knee disorders are fully contemplated by the rating schedule. There is no evidence his disability picture is exceptional when compared to other Veterans with the same or similar disability. There is no evidence that the claimant's knee disorders at any time during the appellate term necessitated frequent hospitalization, or that either disability has caused a marked interference with employment. Thus, the Board finds no evidence warranting entitlement to referral for extraschedular consideration. Thun v. Peake, 22 Vet. App. 111 (2008). In reaching these decisions the Board acknowledges that the appellant is competent to report complaints of pain, swelling and discomfort. The Board finds the objective evidence, however, to be of greater credibility and probative value. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest may be found to affect the credibility of testimony.) Ankles The Veteran's left ankle osteoarthritis disability has been evaluated as noncompensably disabling from March 6, 1995 to June 8, 2007, and 10 percent disabling since June 9, 2007 pursuant to 38 U.S.C.A. §38 C.F.R. § 4.71a, Diagnostic Codes 5003-5271. The Veteran's right ankle osteoarthritis disability has been evaluated as noncompensably disabling from March 6, 1995 to January 19, 2011, and 10 percent disabling since January 20, 2011 pursuant to 38 U.S.C.A. §38 C.F.R. § 4.71a, Diagnostic Codes 5003-5271. Under 38 C.F.R. § 4.71a , Diagnostic Code 5271, a 10 percent rating is warranted for a moderate limitation of ankle motion, and a 20 percent rating is assigned for a marked limitation. The normal range of motion of the ankle is 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71a, Plate II. Initially, the Board notes that osteoarthritis of the left ankle was not shown by x-ray until 2006; however, a VA examiner opined in May 2007 that early degenerative arthritis in the left ankle was as likely as not a late sequela of the earlier reactive arthritis. Degenerative joint disease of both ankles was diagnosed in January 2011. Because rheumatoid arthritis has been in effect since June 1973, the Board considers the complaints of right and left ankle pain as due this disorder prior to the diagnoses of osteoarthritis. The evidence shows that from March 6, 1995, to December 30, 1996, neither of the Veteran's ankles demonstrated symptoms which warranted a compensable disability rating. In this respect, the evidence prior to December 31, 1996 shows no objective evidence of arthritis or painful ankle joint motion. There is no objective evidence of any functional loss prior to December 31, 1996. On VA examination in December 1996, the Veteran complained of pain and soreness in his feet, on examination, dorsiflexion was to 15 degrees bilaterally, plantar flexion was 35 degrees bilaterally, a 23 percent loss of ankle motion. Although there was no tenderness, swelling, or deformity on either ankle, the Board finds that a 23 percent loss of ankle motion in addition to the Veteran's complaints of pain can be considered moderate limitation of ankle motion. The Board notes that on VA examination on October 20, 1997, the VA examiner noted that passive and active range of motion in all joints was within normal limits but there was pain in multiple other joints on motion. The examiner noted that the pain began when the motion was initiated and that this was particularly severe if there was sudden motion. The examiner noted that the Veteran entered the examination with a slight limp on the right leg, he walked with the right foot turned out slightly more than the left foot but did not require a cane or other aid to walking. Although the VA examiner did not specifically indicate that multiple joints included the ankles, the VA examination sheet indicates that the examination was for joints (shoulder/elbow/wrist/hip/knee/ ankle). At the March 2007 VA examination, the Veteran noted that his daily, mild ankle pain has been going on for well over 40 years. The Board finds that 10 percent evaluations are warranted for right and left ankle osteoarthritis effective December 31, 1996, but not prior thereto. As noted above, there is no probative evidence of any functional ankle impairment prior to December 31, 1996. Further, there was no radiological evidence showing that either ankle joint was impaired due to painful arthritis prior to that date. There is no evidence prior to December 31, 1996, that either ankle objectively suffered from painful motion, that either joint was malaligned, or that either joint was unstable. There was no evidence of ankle crepitus. Hence, prior to December 31, 1996, the Board finds no basis to assign a compensable rating for either ankle joint. Effective December 31, 1996, however, the Board finds that the appellant is entitled to a 10 percent rating in each joint. In this regard, the appellant reported bilateral ankle pain and there was objective evidence of some limitation of motion shown on that date. The December 1996 VA examination specifically found plantar flexion reduced to 35 degrees and dorsiflexion reduced to 15 degrees bilaterally. While other VA examinations showed a full range of motion, to include on occasion without pain, the Board will resolve reasonable doubt and assign a compensable 10 percent rating in each ankle joint effective December 31, 1996. Burton. The Veteran's manifestations of his service-connected right and left ankle disabilities, however, have not approached the severity contemplated for a rating higher than 10 percent. As set forth above, in order for the Veteran's ankle disabilities to warrant evaluations in excess of 10 percent, the evidence must show a marked limitation of ankle motion. Clearly such a marked level of impairment is not demonstrated by the record. See December 1996 VA examination report which notes plantar flexion to 35 degrees and dorsiflexion to 15 degrees bilaterally; the October 1997 VA examination report which notes passive and active range of motion in all joints was within normal limits; the July 2006 VA examination report which notes normal right ankle motion and 40 degrees total motion in the left ankle; the March 31, 2007 VA examination report which notes plantar flexion to 45 degrees and dorsiflexion to 20 degrees bilaterally without pain; and the June 9, 2007 VA examination report which notes dorsiflexion to 5 degrees, plantar flexion to 50 degrees, inversion to 40 degrees, and eversion to 5 degrees with no pain. Indeed, even taking into account the Veteran's complaints of pain, the Board finds that neither ankle disability warrants a higher rating. See 38 C.F.R. §§ 4.40, 4.45, 4.71a. See VA examination report dated in March 2007 which notes that there was no pain with range of motion testing in either ankle; VA examination report dated in May 2007 which notes that the Veteran described frequent episodes of increased joint pain related to activity and weather; VA examination reported dated in June 2007 which notes that it was conceivable that pain could further limit function particularly with repetition but that it was not feasible to express it in terms of additional limitation of motion as the matter could not be determined with any degree of medical certainty. Thus, there is no objective evidence that Veteran has functional loss or additional limitation of ankle motion due to pain, weakness, and atrophy of a severity to afford him an evaluation higher than 10 percent. Given this evidence, entitlement to an evaluation in excess of 10 percent is not warranted at any time during the appeal period for right or left ankle osteoarthritis pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5271. Accordingly, the Board finds that a 10 percent evaluation, but no higher, is warranted from December 31, 1996 for right and left ankle osteoarthritis. The symptoms presented by the Veteran's right and left ankle disorders are fully contemplated by the rating schedule. There is no evidence his disability picture is exceptional when compared to other Veterans with the same or similar disability. There is no evidence that the claimant's ankle disorders at any time during the appellate term necessitated frequent hospitalization, or that either disability has caused a marked interference with employment. Thus, the Board finds no evidence warranting entitlement to referral for extraschedular consideration. Thun, 22 Vet. App. 111 (2008). Finally, the Veteran asserts that he is unemployable due to his service-connected disabilities, which is sufficient to raise an informal claim for a total rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran's claim for a total disability evaluation based on individual unemployability was denied in a September 1999 rating decision, and the Veteran did not disagree with that determination. There is nothing in Rice that holds an informal claim for benefits based on a general allegation of unemployability is enough to overcome the finality of the prior decision on the formal claim for individual unemployability, which the Veteran did not appeal. The Veteran is always free to file another claim with the RO, but the issue of entitlement to individual unemployability benefits is not before the Board at this time. ORDER Entitlement to a compensable evaluation for left knee osteoarthritis from March 6, 1995 to December 30 , 1996 is denied. Entitlement to a 10 percent evaluation, but no higher, for osteoarthritis of the left knee from December 31, 1996 to January 19, 2011 is granted subject to the law and regulations governing the payment of monetary benefits. Entitlement to a compensable evaluation for right knee osteoarthritis from March 6, 1995 to November 7, 1995 is denied. Entitlement to an evaluation in excess of 10 percent for osteoarthritis of the right knee from November 8, 1995 , is denied. Entitlement to a compensable evaluation for left ankle osteoarthritis from March 6, 1995 to December 30, 1996 is denied. Entitlement to a 10 percent evaluation, but no higher, for left ankle osteoarthritis from December 31, 1996 to January 19, 2011, is granted subject to the law and regulations governing the payment of monetary benefits. Entitlement to a compensable evaluation for right ankle osteoarthritis from March 6, 1995 to December 30, 1996 is denied. Entitlement to a 10 percent evaluation, but no higher, for right ankle osteoarthritis from December 31, 1996 to January 19, 2011, is granted subject to the law and regulations governing the payment of monetary benefits. REMAND With respect to the issues of entitlement to evaluations in excess of 10 percent from January 20, 2011, for bilateral knee and ankle osteoarthritis, the Veteran's attorney argues that because the January 2011 VA examiner failed to address any additional functional loss or limitation of motion that the appellant experiences during a flare-up or upon repetitive use, the Board should remand in order to obtain an adequate examination. The Board agrees. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to indicate if he has received any VA or non-VA medical treatment for his knees and ankles that is not evidenced by the current record. If so, the Veteran should be provided with the necessary authorizations for the release of any treatment records not currently on file. These records should then be obtained and associated with the claims folder. The Veteran should be advised that he may also submit any evidence or further argument relative to the claim at issue. 2. Thereafter, the Veteran should be afforded a VA examination to ascertain the severity of his bilateral knee and ankle disabilities. The claims file, to include Virtual VA must be made available to and reviewed by the examiner in conjunction with the examination, and the examination report should reflect that such a review was made. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. Application of 38 C.F.R. § 4.40 regarding functional loss due to pain, and 38 C.F.R. § 4.45 regarding weakness, fatigability, incoordination or pain on movement of a joint must be considered. For each knee and ankle joint the examiner must individual address whether the joint is manifested by weakened movement, excess fatigability, or incoordination. If feasible, these determinations should be expressed in terms of the degree of additional range of motion loss or ankylosis due to any weakened movement, excess fatigability, or incoordination. The examiner must also provide an opinion addressing whether pain could significantly limit functional ability during flare-ups or when the knees and ankles are used repeatedly over a period of time. This determination should also, if feasible, be portrayed in terms of the degree of additional range of motion loss or ankylosis due to pain on use or during flare-ups. 3. The case should be reviewed on the basis of the additional evidence. If the benefit sought is not granted in full, the Veteran and his attorney should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs