Citation Nr: 1328070 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 06-07 139 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for pseudofolliculitis barbae (PFB). 2. Entitlement to service connection for bilateral pes planus. 3. Entitlement to an initial rating greater than 10 percent for right knee retropatellar pain syndrome. 4. Entitlement to an initial compensable rating for left knee retropatellar pain syndrome, a compensable rating from August 1, 2007, status post infrapatellar tendon tear and surgical repair, and an increased rating greater than 10 percent from October 25, 2007. 5. Entitlement to an initial compensable rating for lumbosacral strain and a rating greater than 20 percent from March 25, 2008. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from July 1998 to August 2004. This matter is before the Board of Veterans' Appeals (Board) on appeal from February 2005 and January 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran had a hearing before the Board in September 2009 and the transcript is of record. The procedural history of this case requires clarification. The Veteran filed his initial claim for service connection of all these issues immediately after service in September 2004. His low back claim was granted in a February 2005 rating decision, with an initially assigned 0 percent rating, and the other claims were denied. The Veteran appealed. Service connection for the bilateral knees was granted in January 2006 with an assigned 0 percent initial rating for the left knee and an initial 10 percent rating for the right knee. The Veteran appealed the initial ratings to the Board. During the pendency of those appeals, in an April 2007 rating decision, the Veteran was granted a temporary total evaluation for his left knee following left knee surgery from February 20, 2007 to July 31, 2007 with a 0 percent rating thereafter. The left knee rating was increased to 10 percent, effective October 25, 2007, in a February 2008 rating decision. Similarly, the Veteran was granted an increased rating to 20 percent for his lumbar spine disability in an April 2008 rating decision. After the Veteran has perfected his appeal, a subsequent rating decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal. AB v. Brown, 6 Vet. App. 35 (1993). Accordingly, aside from the time period in which the Veteran was granted a 100 percent temporary rating for his left knee following surgical convalescence, all time periods with the various ratings for the left knee, right knee, and low back are still properly before the Board here and the issues have been appropriately rephrased above. The case was brought before the Board in April 2010, at which time it was remanded to obtain missing treatment records and provide the Veteran VA examinations. Having found that the remand order was substantially complied with, the Board may proceed. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes the April 2010 remand also included issues seeking entitlement to service connection for sleep apnea and right ear otitis media with hearing loss. These claims were granted in a February 2013 rating decision and are no longer before the Board. The issue of entitlement to an initial compensable rating for lumbosacral strain and a rating greater than 20 percent from March 25, 2008 is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. The Veteran's PFB, currently in remission, was incurred during active service. 2. The Veteran's bilateral pes planus pre-existed service and was not permanently aggravated during his military service. 3. Since separation from service, the Veteran's right knee disability has been manifested by chronic pain at the extreme end of motion and range of motion no worse than 0 degrees extension to 120 degrees flexion, but with no evidence of instability, arthritis, joint effusion, giving way, locking, subluxation or dislocation. 4. Prior to the Veteran's February 20, 2007 left knee surgery, the Veteran's left knee disability has been manifested by complaints of pain, but with full range of motion and no evidence of swelling, giving way, locking, instability, arthritis, joint effusion, subluxation or dislocation. 5. From August 1, 2007, the Veteran's left knee disability has been manifested by a well-healed surgical scar, constant pain, stiffness, range of motion no worse than 0 degrees extension to 90 degrees flexion, x-ray evidence of degenerative joint disease, but no evidence of instability, subluxation or dislocation, giving way, or locking. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for PFB have been met. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304 (2012). 2. The criteria for entitlement to service connection for bilateral pes planus have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2012). 3. The criteria for entitlement to an initial rating greater than 10 percent for right knee retropatellar pain syndrome have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes (DCs) 5014, 5257, 5258, 5260, 5261 (2012). 4. The criteria for entitlement to an initial compensable rating for left knee retropatellar pain syndrome prior to February 20, 2007, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, DCs 5014, 5257, 5258, 5260, 5261 (2012). 5. The criteria for entitlement to a rating of 10 percent, but no higher, for a left knee disability status-post infrapatellor tendon tear and surgical repair, effective August 1, 2007, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, DCs 5014, 5257, 5258, 5260, 5261 (2012). 6. The criteria for entitlement to a rating greater than 10 percent from October 25, 2007 for a left knee disability, status post infrapatellar tendon tear and surgical repair, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, DCs 5014, 5257, 5258, 5260, 5261 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Assist and Notify Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it 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 the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that the duty to notify was satisfied by letters sent to the Veteran in December 2004, August 2006, June 2008, and April 2010. Those letters addressed all of the notice elements and the issue has since been readjudicated many times, most recently in a February 2013 Supplemental Statement of the Case (SSOC). The duty to assist was also met in this case. The Veteran's service treatment records are in the claims folder. All pertinent VA treatment records have been obtained and associated with the file to the extent possible. Concerning this, the Veteran indicated he receives treatment for his conditions solely from VA facilities. (See September 2009 Board Hearing Transcript). VA outpatient treatment records were obtained through March 2010. VA was subsequently informed the Veteran was incarcerated in September 2010 and is still currently incarcerated. The Veteran has not reported receiving any treatment during his period of incarceration and there is no evidence to suggest he has received treatment. The Veteran was also afforded VA examinations in 2012 and did not report any recent treatment for his conditions during these examinations. Numerous VA examinations were provided to the Veteran with respect to the issues on appeal, to include in January 2005, December 2005, March 2007, May 2007, December 2007, and March 2012 (with August 2012 addendum opinions after review of the claims file). 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations and opinions obtained in this case adequate. The examiners thoroughly examined the Veteran, offered diagnosis opinions, and reviewed the claims file. They specifically addressed the Veteran's contentions and provided a nexus opinion with a complete rationale stated, considering and noting all pertinent evidence of record. Thus, the Board finds that VA has satisfied the duty to assist the Veteran and may proceed to consider the merits of the claims. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). With respect to the claims herein, the Board notes the Veteran's lay statements were considered along with the medical evidence of record. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see also Visser v. Packer Engineering Assoc., Inc., 924 F.2d 655, 659-60 (7th Cir.1991) (lay assertion cannot be "flights of fancy, speculations, hunches, intuitions, or rumors about matters remote from [the witness's] experience;" witness not competent to describe motive because testimony too much like psychoanalysis, for which witness not qualified). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Pseudofolliculitis Barbae (PFB) The Veteran claims he first incurred PFB during active military service as a result of the "close shave" requirement. He indicates he was on profile many times because he would develop a rash on his chin. Since that time, he no longer uses a razor, but rather hair clippers. Accordingly, he no longer has active breakouts of PFB, but he claims he still has residual scarring on his chin. (See, September 2009 Board Hearing Transcript). Service treatment records confirm the Veteran was seen many times complaining of a rash on his chin or irritation on his face due to shaving. For example, the Veteran was seen in August 1998 complaining of a rash on his chin. A May 2001 record notes a "shaving problem," and October 2001 and December 2001 records note the Veteran's numerous shaving profiles. In October 2001 and December 2001, the Veteran was diagnosed with "PFB." The Veteran was directed to use hair clippers rather than a razor, and the condition was not thereafter noted. After service, the Veteran was afforded a general VA examination in January 2005 where the examiner noted the PFB diagnosis, but on examination his skin was largely normal. Rather, the examiner merely noted "several follicular nodules." In December 2005, an additional VA examination was provided to obtain an opinion with respect to PFB. At that time, the examiner again noted a diagnosis of PFB, but "in remission." The examiner noted that the Veteran's PFB began in the military when he was required to shave close. The Veteran denied any problems since ceasing this type of shaving, and also denied symptoms or scarring since his military service. With regard to etiology, the examiner opined as follows: Veteran did not shave prior to joining the military, pseudofolliculitis barbae began in service, he consulted once the rash became bothersome. The rash resolved upon leaving the military. Veteran's previous pseudofolliculitis barbae more likely than not related to the military service. The opinion is persuasive as it is based on a thorough physical examination and a complete review of the claims folder. Since this examination, VA outpatient treatment records are largely silent as to any complaints, treatment, or diagnoses of a skin related condition, to include PFB. At his hearing before the Board in September 2009, the Veteran testified that he does not currently use razors, just clippers, but the problem never really went away. Rather, the irritation on his chin is better hidden with his beard grown out. The facts of this case are not in dispute. It is clear the Veteran first incurred irritation and rashes on his face in the military due to the shaving requirements of active duty. He was diagnosed with PFB while on active duty and was given a shaving profile. Since service, the condition resolved because the Veteran no longer shaves with razors. The Veteran contends his PFB left residual scarring, but it is well hidden given the location on his chin. Post-service medical records do not indicate any ongoing treatment and it is unclear whether the Veteran has a current skin disorder. Resolving all reasonable doubt in favor of the Veteran, however, the Board finds the evidence supports service connection of PFB and any current residuals thereof. Even though the condition is currently "in remission," the Veteran is competent to report ongoing cosmetic problems as a result of his in-service PFB, and the medical evidence at the very least supports in-service incurrence of PFB and current "follicular nodules." For these reasons, the Board finds service connection warranted. Pes Planus The Veteran contends his pre-existing pes planus worsened in the military due to excessive marching, standing, and running. (See, e.g., September 2009 Board Hearing Transcript). The Veteran's service treatment records confirm pes planus was first noted on his December 1997 enlistment examination. At that time, it was noted as "asymptomatic" with no orthotics needed. During service, he was treated for right foot pain in November 1998, with a finding of a large callosity over the right second metatarsal head. His pes planus was also noted during an August 1998 treatment for an unrelated problem. In May 2002, the Veteran again reported right foot pain with an assessment of "abrasion." During his September 2009 hearing before the Board, the Veteran further claims he was prescribed shoe inserts while in-service, but they did not help. The service treatment records do not confirm in-service prescribed shoe inserts. A veteran who served during wartime service after December 31, 1946, is presumed to be in sound condition when examined, accepted and enrolled for service except as to defects, infirmities, or disorders noted at entrance into service or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. §§ 1111, 1137 (West 2002); see Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The presumption of soundness, however, attaches only where there has been an induction medical examination during which the disability about which the Veteran later complains was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). In contrast, here, the Veteran's pes planus was noted on his December 1997 enlistment examination. Accordingly, the Board finds the presumption of soundness does not attach with respect to pes planus. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306(a). After service, the Veteran was first afforded a VA examination in January 2005 where his pes planus were noted, but no opinion was offered at that time. In December 2005, the VA examiner diagnosed the Veteran with bilateral congenital pes planus with subjective metatarsalgia (but no objective confirmation of metatarsalgia) opining that the congenital bilateral pes planus pre-existed service and was "not aggravated by military service." The metatarsalgia, moreover, was deemed not likely related to his military service, but no further rationale was provided. The Veteran was again provided a VA examination in March 2012 (with an August 2012 addendum after review of the claims folder). At that time, the Veteran was again diagnosed with bilateral pes planus with no other bilateral foot diagnosis. With regard to etiology, the examiner opined that the Veteran's bilateral pes planus "clearly and unmistakably existed prior to service" and "was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness." The examiner found that the Veteran did not have evidence of pain or arthritis beyond the rare episodes of pain after increased activity. X-rays, moreover, did not show arthritis or deformities. The Veteran's condition was described as "mild" and, therefore, not aggravated by any incident of service. In August 2012, the examiner added that the Veteran's condition shows "no progression" of the pes planus due to service. The Board finds the examination and addendum opinion persuasive. They are based on a thorough physical examination and a complete review of the claims folder. Also compelling, no medical professional has ever indicated the Veteran's pes planus was "aggravated" as a result of service. Indeed, VA outpatient treatment records are largely silent with respect to his bilateral pes planus. In short, the evidence of record indicates the Veteran's bilateral pes planus pre-existed service and was not aggravated therein. The Veteran is not entitled to the presumption of soundness because his pes planus was noted on his entrance examination into the military. While the Board does not doubt the veracity of the Veteran's described in-service long marches and other laborious tasks, the medical evidence does not support in-service aggravation of his pre-existing pes planus. In fact, there is medical evidence to the contrary. The preponderance of the evidence is against the claim; there is no doubt to be resolved; and service connection for the Veteran's bilateral pes planus is not warranted. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). Increased Ratings At his hearing before the Board in September 2009, the Veteran indicates his knees are painful on a daily basis, to include numbness into his feet, and constant giving-way. For these reasons, the Veteran believes he is entitled to increased ratings for his service-connected knee disorders. Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C.A. § 1155. Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Staged ratings are appropriate for initial rating and increased-rating claims 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). Staged ratings were considered in this appeal and applied when appropriate. Significantly, as will be discussed below, the Veteran underwent a left knee surgery on February 20, 2007. The manifestations of the Veteran's left knee disability prior to the surgery and thereafter differ and, therefore, warrant staged ratings. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. While the Board must consider the functional impairment resulting from orthopedic disabilities, such as the Veteran's loss of motion, pursuant to 38 C.F.R. §§ 4.40 and 4.45, pain is inapplicable to ratings such as Diagnostic Code 5257 (for instability or recurrent subluxation) because it is not predicated on loss of range of motion. See Johnson v. Brown, 9 Vet. App. at 12 (1996). The Veteran's bilateral knee retropatellar pain syndrome was initially granted in a January 2006 rating decision. His right knee was rated 10 percent disabling, and the Veteran's left knee was rated 0 percent disabling, both under Diagnostic Code 5014, for osteomalacia, by analogy. Thereafter, in February 2007, the Veteran injured his left knee resulting in a rupture of the left side patellar tendon. He underwent surgical repair on February 20, 2007 and in a July 2007 rating decision, he was awarded a temporary total evaluation for surgical convalescence through July 31, 2007. Effective August 1, 2007, his 0 percent rating for the left knee was continued under DC 5014. Thereafter, in a February 2008 rating decision, he was awarded an increased rating to 10 percent, effective October 25, 2007, for a left knee disability, to include retropatellar pain syndrome and degenerative joint disease (DJD), under DC 5014. His right knee disability has been rated 10 percent disabling under DC 5014 throughout the entire appellate time frame. Diagnostic Code 5014 rates disabilities analogously to DC 5003, for degenerative arthritis. See 38 C.F.R. § 4.71a, DCs 5003-5014. Under DC 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating 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. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. Ankylosis of a knee warrants a 30 percent evaluation if it is at a favorable angle in full extension, or in slight flexion between 0 and 10 degrees. Ankylosis of a knee warrants a 40 percent evaluation if it is in flexion between 10 and 20 degrees or a 50 percent evaluation if it is in flexion between 20 and 45 degrees. Extremely unfavorable ankylosis of a knee at an angle of 45 degrees or more warrants a 60 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5256. Flexion of the leg limited to 60 degrees warrants a noncompensable rating, flexion limited to 45 degrees warrants a 10 percent rating, flexion limited to 30 degrees warrants a 20 percent rating, and flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Extension limited to 5 degrees warrants a noncompensable rating, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, extension limited to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Flexion of the knee to 140 degrees is considered full and extension to 0 degrees is considered full. See 38 C.F.R. § 4.71, Plate II. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2012). 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). For example, VA's General Counsel has held that a claimant who has arthritis and instability of a knee may be rated separately under Diagnostic Codes 5003 and 5257, while cautioning that any such separate rating must be based on additional disabling symptomatology. VAOPGCPREC 23-97 (July 1997); VAOPGCPREC 9-98, (August, 1998). Knee impairment with recurrent subluxation or lateral instability warrants a 10 percent evaluation if it is slight, a 20 percent evaluation if it is moderate or a 30 percent evaluation if it is severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint warrants a 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Removal of semilunar cartilage warrants a 10 percent evaluation if it is symptomatic. 38 C.F.R. § 4.71a, Diagnostic Code 5259. In addition, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. Right Knee As indicated above, the Veteran's right knee has been rated 10 percent throughout the entire time period under DC 5014. As will be explained in more detail below, an increased rating is not warranted for the right knee because the medical evidence consistently indicates that throughout the appellate time frame, the Veteran's right knee disability has been manifested by nearly full range of motion with some complaints of pain at the extreme ends of motion, but no other significant manifestation. The Veteran was initially afforded a VA examination in January 2005 where his knees were described as having normal "full" range of motion with no pain, and no instability. X-rays at that time were also within normal limits. He was diagnosed with bilateral retropatellar pain syndrome. Similar findings were noted in a subsequent December 2005 examination. At that time, however, although the Veteran exhibited full range of motion, he indicated mild pain at the end of flexion on the right knee. The examiner also noted mild bilateral genuvalgum, associated with his congenital pes planus. X-rays were still within normal limits at that time. The Veteran was afforded additional examinations in March 2007, May 2007, December 2007, and March 2012. At those times, the Veteran's right knee range of motion was no worse than 0 degrees extension to 120 degrees flexion with end range pain and no change on repetition. Ligaments were consistently reported intact and stable with no swelling, instability, edema, weakness, subluxation, or dislocation. The Veteran does not use any assistive devices associated with his right knee. In March 2012, the Veteran did indicate pain and swelling after prolonged walking, but this was primarily a complaint of the left knee. VA outpatient treatment records are largely silent as to ongoing treatment of the right knee specifically. Rather, the medical evidence related to the Veteran's knees, mainly focus on the Veteran's left knee, particularly after his February 20, 2007 left knee surgery. In short, the medical evidence related to the Veteran's right knee shows a largely normal right knee with some complaints of pain after prolonged use, and limited flexion no worse than 120 degrees with increased pain at the end range of motion. All examiners found no significant interference with the Veteran's activities for daily living or occupation due to his right knee. At no time during the appellate time frame was the Veteran's right knee manifested by instability, ankylosis, torn or dislocated cartilage, or arthritis. At no time during the appellant time frame do range of motion findings warrant a compensable rating under DC 5260 or DC 5261. Rather, it appears the Veteran was awarded a 10 percent rating solely based on the manifestation of pain at the extreme ends of motion in accordance with 38 C.F.R. §§ 4.40, 4.45; see also DeLuca, 8 Vet. App. 202. Functional loss was similarly considered here, but the Board finds no basis in which to assign a rating greater than 10 percent here. All VA examiners indicate the Veteran's range of motion did not change after three repetitions. Pain, muscle weakness, tenderness, and stiffness were all taken into account in determining functional loss or further loss of range of motion. No examiner found functional loss due to fatigue, incoordination, or lack of endurance. The Board finds no provision in which to assign the Veteran an increased rating or a separate rating under any potentially applicable diagnostic code. Left Knee As indicated above, the Veteran was initially awarded a non-compensable rating under DC 5014 for retropatellar pain syndrome. He underwent surgery to repair a ruptured tendon on February 20, 2007 and was awarded a temporary total evaluation from February 20, 2007 to July 31, 2007. His 0 percent rating was reinstated, effective August 1, 2007, and an increased rating of 10 percent was awarded, effective October 25, 2007. As will be explained in more detail below, it is clear the Veteran's left knee worsened as a result of the February 2007 injury and, therefore, the 10 percent rating is awarded back to August 1, 2007, the day after the temporary total evaluation ceased. Any further increased ratings are not warranted. Prior to February 20, 2007, the Veteran was afforded VA examinations in January 2005 and December 2005. At those times, the Veteran complained of aching and stiffness of the left knee on a daily basis, but no instability. The Veteran exhibited full range of motion with no complaints of pain and no objective evidence of painful motion, to include on repetition. X-rays at that time were within normal limits and the Veteran was diagnosed with retropatellar pain syndrome. Prior to February 20, 2007, the Veteran's left knee disability was manifested by subjective complaints of aching and stiffness, but no objective findings of limited motion, arthritis, painful motion, or any other significant manifestation. For these reasons, the Board finds no diagnostic code in which to award a compensable rating prior to February 20, 2007. Functional loss was considered in accordance with 38 C.F.R. §§ 4.40, 4.45; see also DeLuca, 8 Vet. App. 202. Unlike with the right knee, however, the Veteran did not complain of any pain on motion of his left knee prior to February 20, 2007. Both 2005 VA examiners found full range of motion with no x-ray evidence of arthritis or any other abnormality. The Veteran's range of motion did not change after three repetitions nor was his range of motion limited by pain, muscle weakness, tenderness, stiffness, fatigue, incoordination, or lack of endurance. In short, no examiner during this time period found any evidence of left knee functional loss. For these reasons, the Board finds no provision in which to assign the Veteran an increased rating or a separate rating under any potentially applicable diagnostic code for his left knee disability prior to February 20, 2007. Thereafter, as indicated above, the Veteran underwent surgical repair of a ruptured patellar tendon of the left knee on February 20, 2007. He was awarded a temporary total evaluation through July 31, 2007. This rating is not in dispute and not properly before the Board here. On August 1, 2007, the Veteran's 0 percent rating was reinstated until October 25, 2007 when the Veteran was granted an increased rating to 10 percent. Immediately after the surgery, in March 2007, the Veteran was afforded a VA examination. Due to the recent surgery, the Veteran reported significant pain and was unable to participate in range of motion testing. The Veteran was afforded a VA examination again in May 2007. Although the Veteran's left knee was healing, he still had moderate residual pain with limited motion. In light of the fact that these examinations were conducted in close proximity to the time of his surgery and during his period of a temporary total evaluation, the Board concludes the medical findings do not accurate reflect the current severity of his left knee disability. The Veteran was again afforded a VA examination in December 2007 where the Veteran complained of constant pain of the left knee with stiffness, intermittent instability or giving way when he climbs stairs. On examination, however, ligaments were found to be normal/stable as was his meniscus. The Veteran did not have any edema, effusion, objective evidence of instability, weakness, or subluxation. Range of motion testing indicated the Veteran's left knee flexion was limited to 90 degrees with more pain at the extreme flexion, and also pain at 0 degrees extension. The examiner diagnosed the Veteran with left knee retropatellar pain syndrome, status post infrapatellar tendon tear and surgical repair, moderate. Despite the Veteran's painful motion, the examiner did not find any change in range of motion on repetition or due to fatigue, incoordination, weakness, or lack of endurance. Despite the 2007 VA examiner's findings, a January 2009 VA outpatient treatment record did not a "mild" joint effusion on the left knee with mild degeneration. VA outpatient treatment records in general indicate periodic complaints and treatment for knee pain. In order to clarify the current manifestations of the Veteran's left knee, the Board remanded the claim to afford the Veteran a more current VA examination. The Veteran was afforded a VA examination for his knees most recently in March 2012 where the examiner at that time confirmed degenerative joint disease of the left knee with limited motion of 0 degrees extension to 110 degrees flexion, with subjective complaints of pain starting at 90 degrees flexion (although no objective evidence of painful motion). The Veteran complained of pain and swelling after prolonged walking, but on examination, the examiner found no joint effusion, no subluxation or dislocation, no flare-ups, no instability, and no abnormality of the meniscus. The examiner noted a well-healed surgical scar, but with no tenderness. The Veteran also did not use any assistive devices for his left knee. The examiner indicated the Veteran reported re-injuring his knee on June 29, 2007 after his left knee brace was removed, but the bone exam did not reveal any fracture or further injury to the left knee. In short, after the Veteran's left knee surgery and surgical convalescence period, the Veteran's left knee disability is currently manifested by degenerative joint disease (DJD) confirmed by x-ray, pain, limited motion no worse than 90 degrees flexion, but full extension. Despite the Veteran's complaints of instability, the objective testing found no evidence of instability, subluxation, dislocation, locking, giving out, or joint effusion. The Board notes the VA outpatient treatment record dated January 2009 noting a mild joint effusion, but VA examiners conducting diagnostic tests in 2007 and 2012 consistently found no evidence of joint effusion. At no time during the appellant time frame do range of motion findings warrant a compensable rating under DC 5260 or DC 5261. Functional loss was considered in accordance with 38 C.F.R. §§ 4.40, 4.45. See also DeLuca, 8 Vet. App. 202. All VA examiners indicate the Veteran's range of motion did not change after three repetitions. Pain, muscle weakness, tenderness, and stiffness were all taken into account in determining functional loss or further loss of range of motion. No examiner found functional loss due to fatigue, incoordination, or lack of endurance. In light of the Veteran's DJD, some amount of limited flexion, and his subjective complaints of pain, the Board finds a 10 percent rating is warranted effective August 1, 2007, the day following his temporary total evaluation for surgical convalescence, but no higher. See 38 C.F.R. § 4.71a, DCs 5003 and 5014. No further increase under DCs 5003/5014 is warranted because DJD only affects one major joint. As noted above, there are other Diagnostic Codes relating to knee, but the Board finds these alternative diagnostic codes inapplicable here. Specifically, Diagnostic Code 5256 (ankylosis of the knee), 5258 (dislocated semilunar cartilage), 5259 (removal of semilunar cartilage, symptomatic), 5262 (impairment of the tibia and fibula) and 5263 (for genu recurvatum). The Veteran's left knee has never been found to be ankylosed. Ankylosis is "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). The Veteran is able to move his left knee, albeit with some limitation, and so it is clearly not ankylosed. The Veteran's knee was also not affected by nonunion or malunion of the tibia and fibula or by genu recurvatum. The Board notes the December 2005 VA examiner indicated a diagnosis of mild bilateral genuvalgum, but this was associated with his non-service connected pes planus and not indicated as a manifestation of his service-connected bilateral knee disabilities. The Veteran's left disability prior to the February 20, 2007 surgery was manifested by some subjective complaints of pain, but full range of motion with no objective evidence of painful motion or x-ray abnormality. After the February 20, 2007, the Veteran's left knee is now manifested by limited flexion no worse than 90 degrees with objective evidence of painful motion and DJD. These manifestations warrant a non-compensable rating prior to February 20, 2007 and a 10 percent rating, effective August 1, 2007, but no higher. The Board finds no provision in which to assign the Veteran any further increase or any separate rating under any other potentially applicable diagnostic code for the left knee. Other Considerations The Board has considered whether these claims should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration. In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for 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 extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the manifestations of the disabilities are contemplated by the schedular criteria. Therefore, referral for extra-schedular consideration is not in order. Unemployability The Board notes that a claim seeking a total disability rating based on individual unemployability (TDIU) is inferred in increased rating claims where the Veteran claims his disability affects his employability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Where a veteran (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). TDIU is not raised in an increased rating claim unless the Roberson requirements are met. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). Here, at the time of his hearing before the Board in September 2009, the Veteran worked as a mechanic and testified as to some problems due to knee pain, but also reported not missing any work days because of his knees. (See September 2009 Board Hearing Transcript). Currently, the evidence of record reflects the Veteran is incarcerated. There is no evidence that he is currently unemployable due to his service-connected knees nor has the Veteran ever claimed unemployability. No medical professional has ever indicated the Veteran is unemployable solely due to his service connected disabilities, to include his bilateral knees. Indeed, there is medical evidence to the contrary. For these reasons, the Board concludes further consideration of TDIU is not warranted. ORDER Entitlement to service connection for pseudofolliculitis barbae (PFB) is granted. Entitlement to service connection for bilateral pes planus is denied. Entitlement to an initial rating greater than 10 percent for right knee retropatellar pain syndrome is denied. Entitlement to an initial compensable rating for left knee retropatellar pain syndrome prior to February 20, 2007 is denied. Entitlement to a rating of 10 percent, but no greater, is granted for left retropatellar pain syndrome, effective August 1, 2007, subject to the laws and regulations governing monetary awards. Entitlement to a rating greater than 10 percent for left retropatellar pain syndrome from August 1, 2007 is denied. REMAND The Veteran claims his lumbar spine disability is worse than currently rated. In fact, in an August 2006 statement, the Veteran indicated his back pain is his "main concern." During his hearing before the Board in September 2009, the Veteran indicated chronic pain, always present, incapacitating episodes (twice over a two year period) and numbness into his legs and feet. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). The Veteran was last afforded a VA examination specifically for his spine in March 2008, over five years ago. At that time, the examiner noted "no" incapacitating episodes and "no" neurological impairment. Since that time, VA outpatient treatment records through March 2010 indicate ongoing complaints of back pain. See September 4, 2009, Primary Care Visit. In light of the time lapse and the Veteran's testimony, a new VA examination is indicated. Caffrey v. Brown, 6 Vet. App. 337, 381 (1994); Snuffer v Gober, 10 Vet. App. 400 (1997). The Board also notes the Veteran was incarcerated in September 2010 and is still currently incarcerated. No medical records are in the claims folder beyond March 2010. The Veteran has had ample opportunity to identify any additional records (to the extent they exist), provide release forms for additional records (to the extent they exist), or provide the records themselves (to the extent they exist). The Veteran was most recently sent a duty to assist letter in April 2010 indicating the VA was working to obtain any and all recent treatment records. The Veteran was also provided a supplemental statement of the case (SSOC) in February2013 once again informing the Veteran of the evidence necessary to substantiate his claim. In any case, since it is necessary to remand this claim for other reasons, the Board concludes the RO or AMC should make efforts to obtain any and all medical treatment records since March 2010 to include from his correctional facility. With regard to the medical examination, the Board acknowledges that VA may not have the authority to require a correctional facility to release the Veteran for the purposes of a VA examination. However, VA nevertheless must be certain to tailor its assistance to the peculiar circumstances of a Veteran's confinement. Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (holding that incarcerated veterans are entitled to the same care and consideration given to their fellow veterans). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify and provide release forms for any private or VA treatment received for any of the claimed conditions since March 2010. Thereafter, obtain any and all identified treatment, to include at his current correctional facility. Private providers are to be informed that actual medical records, as opposed to summaries, are needed. All efforts to obtain identified medical records must be fully documented, and any VA facility must specifically provide a negative response if records are not available. 2. After the above is complete and records are obtained to the extent available, schedule the Veteran for an appropriate VA examination to obtain orthopedic and neurological findings to ascertain the severity of the Veteran's current lumbar spine disability. The entire claims file and any pertinent evidence in Virtual VA that is not contained in the claims file must be made available to and reviewed by the examiner. Based on the examination and review of the record, the examiners are to address the following: (a) As for neurological findings, the examiner must specifically opine whether any neurological findings or complaints of radicular pain are associated with his lumbar spine disability. If so, the examiner is to specifically state the affected nerve(s) and impairment level (e.g., mild, moderate, moderately severe, severe). (b) As to orthopedic findings, the examiner must clarify the current severity of the Veteran's lumbar spine disability, to include current range of motion findings, whether there is x-ray confirmation of arthritis, whether there is objective evidence of intervertebral disc syndrome, past history of incapacitating episodes with physician prescribed bed rest, or any other manifestation. The examiner is also to discuss whether the Veteran's lumbar spine disability exhibits weakened movement, excess fatigability, or incoordination that is attributable to the applicable service-connected disability. If feasible, this determination must be expressed in terms of the degree of additional range of motion lost. The examiner must express an opinion as to the degree to which pain could significantly limit functional ability during flare-ups or when the Veteran uses his back repeatedly over a period of time. The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner must provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Then, readjudicate the claim on appeal specifically considering whether increased or separate ratings are warranted in this case. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case must then be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs