Citation Nr: 1328716 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 04-15 749 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to a rating in excess of 10 percent for instability of the left knee for the period of February 8, 2002, to April 19, 2002. 2. Entitlement to a compensable evaluation for instability of the left knee for the period of April 20, 2002 to March 31, 2010. 3. Entitlement to a rating in excess of 10 percent for instability of the left knee from April 1, 2010. 4. Entitlement to rating in excess of 20 percent for right knee instability for the period of February 8, 2002, to April 19, 2002. 5. Entitlement to compensable evaluation for instability of the right knee for the period of April 20, 2002 to October 21, 2012. 6. Entitlement to a rating in excess of 10 percent for instability of the right knee from October 22, 2012. 7. Entitlement to service connection for cervical and thoracolumbar spine disorders, to include as secondary to a bilateral patellofemoral syndrome. 8. Entitlement to service connection for a skin condition. 9. Whether new and material evidence has been received with respect to a claim of entitlement to service connection for a right shoulder disability, subscapularis tendon tear, to include as secondary to right knee patellofemoral syndrome, with chondromalacia. 10. Entitlement to a rating in excess of 30 percent for status post arthroscopy, left knee with patella syndrome and chondromalacia. 11. Entitlement to an earlier effective date for increased compensation paid for dependents. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1969 to November 1973. This appeal to the Board of Veterans' Appeals (Board) arose from rating decisions by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Manchester, New Hampshire. A September 2002 rating decision granted a 30 percent rating for the left knee disorder, and continued a 20 percent rating for the right knee disorder. A January 2005 rating decision denied entitlement to service connection for cervical and thoracolumbar disorders secondary to bilateral knee disorders. In March 2009, the RO issued a decision granting the Veteran increased compensation based on school attendance by his dependents. In January 2010 the Board granted entitlement to a separate 10 percent rating for left knee instability and subluxation due to a patellofemoral syndrome, and a separate 20 percent rating for right knee instability and subluxation due to a patellofemoral syndrome for the period February 8, 2002, to April 19, 2002. The January 2010 Board denied entitlement to service connection for cervical and thoracolumbar spine disorders, to include secondary to bilateral knee disorders. The Veteran appealed the Board's decision to the United States Court of Appeals For Veterans Claims (Court). In July 2010, the Veteran, through his attorney, and the Secretary of Veterans Affairs, submitted a Joint Motion for Remand (Motion). In a July 2010 Order, the Court granted the Motion, vacated that part of the January 2010 Board decision that addressed, in pertinent part, "non-limitation of motion" knee symptomatology, and the claim for service connection for spine disorders, and remanded the case to the Board for further appellate review consistent with the Motion. The July 2010 Motion styled the issues on remand as entitlement to a separate rating higher than 10 percent for left knee instability and subluxation due to a patellofemoral syndrome, and entitlement to an evaluation higher than 20 percent for the right knee instability and subluxation due to a patellofemoral syndrome for February 8, 2002, to April 19, 2002. As discussed in the decision below, however, the Board construes the Motion to also require the Board to explore whether the Veteran was entitled to the separate ratings beyond April 19, 2002. Thus, the Board has styled the issues as noted on the cover sheet. In October 2010, the RO, in pertinent part, denied claims for an increased rating in excess of 30 percent for patella syndrome of the left knee with chondromalacia, entitlement to service connection for a skin condition, and confirmed and continued a prior denial of service connection for a disability of the right shoulder, subscapularis tendon tear, to include as secondary to patella syndrome of the right knee with chondromalacia. In October 2010, the Veteran submitted a notice of disagreement with respect to "[d]ecisions of [c]laims September & October 2010. Despite the Veteran's contention, there is no record of any September 2010 VA adjudication with respect to the Veteran. In June 2011, the Board issued a new decision addressing instability of the Veteran's knees, and remanded a claim of entitlement to service connection for cervical and thoracolumbar spine disorders, to include as secondary to bilateral patellofemoral syndrome. The Court, pursuant to an April 2012 appellate brief by the Veteran, and the May 2012 reply by VA, vacated and remanded the Board's June 2011 decision based on a finding that the incorrect representative was notified of the decision. See 38 C.F.R. § 20.1304 (2012). In an August 2011 rating decision, the RO determined that new and material evidence had not been submitted to reopen claims of entitlement to service connection for foot and ankle disabilities. In October 2011, the Veteran submitted records related to his foot and ankle claims, and later that month, the RO sent him Veterans Claims Assistance Act notice. Despite providing such notice, the RO never took further action on the Veteran's October 2011 submission. While the Board does not have jurisdiction over this claim, the RO is instructed to readjudicate it in view of the October 2011 submission of additional evidence. The issues other than what ratings are warranted for instability of the knees are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. During the term from February 8, 2002 to April 19, 2002, the left knee disability was not manifested by moderate instability. 2. During the term from April 20, 2002 to February 3, 2010 the Veteran's left knee disability was not manifested by any form of chronic instability or subluxation. 3. Beginning April 1, 2010, the left knee disability was not manifested by moderate instability. 4. During the term from February 8, 2002 to April 19, 2002, the right knee disability was not manifested by severe instability. 5. Except during the term from March 24 to May 31, 2010, between April 20, 2002 to October 21, 2012, the Veteran's right knee disability was not manifested by any form of chronic instability or subluxation. 6. Beginning October 22, 2012, the right knee disability was not manifested by moderate instability. CONCLUSIONS OF LAW 1. For the period from February 8, 2002 to April 19, 2002, the requirements for a rating in excess of than 10 percent for left knee instability were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257 (2012). 2. For the period from April 20, 2002 to March 31, 2010, the requirements for a compensable rating for left knee instability were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 3. For the period beginning April 1, 2010, the requirements for a rating in excess of than 10 percent for left knee instability were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 4. For the period from February 8, 2002 to April 19, 2002, the requirements for a rating in excess of than 20 percent for right knee instability were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 5. Save for the period from March 24, 2010 to May 31, 2010, between April 20, 2002 and October 21, 2012, the requirements for a compensable rating for right knee instability were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 6. For the period beginning October 22, 2012, the requirements for a rating in excess of than 10 percent for right knee instability are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009). VA notified the Veteran in September 2001, April 2002, October 2004, August 2006, and April 2007, of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain. The August 2006 letter provided adequate notice of how disability ratings and effective dates are assigned. Any prejudice caused by the timing of the notices provided was harmless. First, the VCAA notices issued to the Veteran contained the essential notice elements. Indeed, the increased rating claims were readjudicated during the appeal period. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (holding that the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Further, as noted in the Introduction, the Veteran appealed the January 2010 Board decision to the Court, where he was represented by counsel. As a result, the Board may infer that the Veteran has actual knowledge of what is required to prove his claims. Thus, any timing-of-notice error was cured and rendered harmless. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA has 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. Neither nor the appellant nor his representative has alleged a failure to assist him, to include while the case was on appeal to the Court. He was afforded a meaningful opportunity to participate in the adjudication of the claim through the opportunity to present pertinent evidence in light of the notices provided. See Washington v. Nicholson, 21 Vet. App. 191 (2007). Thus, the Board may address the merits of the appeal without prejudice to the Veteran. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by an appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Governing Law and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. Id. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2012); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10 (2012). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Id. at 594. Where an increase in the level of a service-connected disability is at issue, however, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nonetheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in this decision is, therefore, undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Analysis As noted in the Introduction, the July 2010 Motion concerned only that portion of the January 2010 Board decision that addressed instability and subluxation due to the Veteran's bilateral patellofemoral syndrome. Hence, the Board need not, and will not, revisit the rating assigned based on limitation of motion. Separate ratings for disabilities rated on the basis of limitation of motion, to include arthritis, and instability are appropriate where indicated by clinical findings. See VAOPGCPREC No. 23-97 (July 1, 1997), cited at 62 Fed. Reg. 63,604 (1997). Following receipt of a copy of a February 2002 examination report, the RO received the Veteran's claim in late-March 2002, through his representative, for entitlement to a separate rating for the instability noted on the February 2002 examination. The September 2002 rating decision denied entitlement to a separate rating for instability. The January 2010 Board found that the evidence of record showed the knees to have met or approximated the criteria for a separate rating for instability for the term from February 8, to April 19, 2002. 38 C.F.R. §§ 4.3, 4.7. Instability is rated as other impairment of the knee. Slight instability warrants a 10 percent evaluation. Moderate instability warrants a 20 percent rating, and severe instability warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5257. As set forth in the July 2010 Motion, the Board noted in the January 2010 decision that, "the claims file shows that the question whether the knees have manifested instability has been the most contentious issue of the adjudication." The gist of the July 2010 Motion pertained to how the Board weighed the examination findings of a VA nurse practitioner examiner versus the examination findings made by VA orthopedists. The consensus of the parties to the July 2010 Motion is that the Board did not adequately set forth the reasons why greater weight was afforded to the findings offered by orthopedists. In as much as the January 2010 Board, in fact, allowed the separate ratings for the period February to April 2002, the undersigned interprets the Motion to require the Board to address whether the evidence was at least in equipoise as to whether the Veteran approximated the criteria for separate ratings for "non-limitation of motion symptomatology" (instability/subluxation) for a longer period. Hence, the Board herein addresses the periods of time, with respect to the left knee, from February 8, 2002 through April 19, 2002; April 20, 2002 through March 31, 2010; and since April 1, 2010. With respect to the right knee the Board evaluates the nature and extent of any instability/subluxation from February 8, 2002 through April 19, 2002; April 20, 2002 through October 21, 2012; and since October 22, 2012. The Board may favor the opinion of one competent medical expert over that of another, provided the reasons therefore are stated. Winsett v. West, 11 Vet. App. 420, 424-25 (1998). Appropriate ratings for the period of February 8, 2002 through April 19, 2002 A February 2002 VA orthopedic progress note, by Dr. H, entered approximately one week prior to a Compensation and Pension Examination, notes the Veteran's complaints of bilateral knee pain, slightly greater on the right, primarily under the kneecap. The Veteran told the examiner he had been taking anti-inflammatory medication, and using a cane as well as different braces and a knee immobilizer. He also reported using crutches at times. Pertinent physical examination revealed that anterior drawer was to 9 millimeters bilaterally, and Lachman's was 0 - 1+ in the right knee. The examiner noted the findings indicated the possibility of bilateral meniscus tears and suggested an MRI examination. He also opined, however, that the Veteran's plain films were not too bad. A February 2002 Compensation and Pension Examination was conducted by a nurse practitioner. Physical examination at that time revealed that, while anterior drawer stress and McMurray's sign were negative, there was a marked laxity to varus stress, right greater than left. Further, March and early-April 2002 MRI examination reports noted a meniscus tear and Grade I ligament sprain on the left. The Board noted in the January 2010 decision that, although the 2002 MRI examination report did not indicate ligament pathology in the right knee, the Board opted to afford the Veteran the benefit of the doubt, 38 C.F.R. § 4.3, and find bilateral instability based on the examiner's objective findings on clinical examination-at least as of the time of the February 2002 examination. Further, there was not a great variance between the nurse practitioner's findings and those of Dr. H. Dr. H noted Lachman's 0 to 1+ in the right knee. In light of the fact that the nurse practitioner noted the instability was greater on the right than the left, the Board in January 2010 found, and continues to find, the evidence of record supports entitlement to a separate rating for slight instability on the left, and moderate instability on the right. In light of the findings at the earlier examination, the Board finds the knees manifested this pathology as of the orthopedic progress note of February 8, 2002. 38 C.F.R. §§ 3.400(o), 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257 (2012). Therefore, the Veteran is entitlement to separate ratings for instability of the knees. The Board assigns a 10 percent rating for the left knee from February 8, 2002 through April 19, 2002, and a separate 20 percent rating for the right knee for the same time period. Since the Board's decision in January 2010, no further evidence has been presented that would alter the Board's January 2010 findings regarding the instability of the left and right knees. The Board reaffirms that the 10 percent rating for the left knee, and 20 percent rating for the right knee, and finds that for the reasons provided, no higher ratings are warranted for instability of the knees are warranted for the period between February 8, 2002, and April 19, 2002. Appropriate ratings for the periods of April 20, 2002 through March 31, 2010 (left knee instability), and April 20, 2002 through October 21, 2012 (right knee instability) The Motion suggested that, because the Board's basis for allowing the separate rating for instability included the nurse practitioner's findings at the February 2002 VA examination, the Board was required to continue the rating on the basis of subsequent examinations by the nurse practitioner. The totality of the evidence shows, however, that pathology due to instability was a chronic compensable entity only for a brief period of time. The July 2003 VA examination report notes the nurse practitioner again noted some of Dr. H's notes and noted bilateral instability among the findings of the examination. Following receipt of the July 2003 examination report, the RO noticed the conflict between the findings of instability by the nurse practitioner and those by VA physicians at other VA examinations which found that the Veteran's knees were stable. As a result, the RO deemed the examination inadequate for rating purposes and returned the claims file to the nurse practitioner with a request for clarification of the issue. The September 2003 report by the nurse practitioner notes that the Veteran had been examined on some 10 different occasions by five different providers. The nurse practitioner noted further that, at the February 2002 examination no laxity was noted, but at the July and September 2003 examinations bilateral laxity and instability were demonstrated. The nurse practitioner conducted all three examinations. As the Board noted in the January 2010 decision, the seminal issue is whether the nurse practitioner's post-February 2002 findings should receive more weight than the other examiners-all orthopedists, who found no instability. The August 2002 examination report noted that there was no laxity in either knee. Entries of June 2003, by Dr. H, and December 2003 by another orthopedist note the knees were stable. The Motion noted that the Board did not provide reasons for favoring the other examiners over the nurse practioner, but the prior sentence in fact includes a salient basis. That is, while the nurse practitioner is a trained medical professional, Dr. H, and the other physicians who examined the Veteran at the noted follow-ups, are not only physicians but they are orthopedists. Orthopedics is a medical specialty. The Board finds that an orthopedist brings more unique training, experience and skill to bear on the issue vis-a-vis the training, skill and experience held by a nurse practitioner. The other factors considered by the Board included the accuracy of the nurse's September 2003 report. In addition to noting in the September 2003 report that bilateral laxity and instability were demonstrated in the Veteran's knees at the July and September 2003 examinations, the nurse practitioner also noted that no laxity was noted at the February 2002 examination when it fact it was, as set forth earlier in this decision. The Board finds that discrepancy to be a valid factor in assigning greater probative value to the findings offered by the orthopedists. Further, the tenor of the September 2003 report by the nurse was clearly one of chagrin, as the nurse apparently took umbrage at the RO's stated basis for returning the report for clarification. The nurse practitioner noted in the September 2003 report that at assessments of April, May, and October 2002; and June 2003, the physician examiners noted no findings of laxity of either knee. Yet, the nurse practitioner did not explain why his findings varied. All of the other assessments by the orthopedists were conducted relatively close in time to those conducted by the nurse practitioner. Yet, the examining orthopedists found no laxity or instability on clinical examination. As discussed, in light of the orthopedists specialized training, the inaccuracy of the nurse's recall of his own prior report, and the tenor of the nurse's September 2003 report, the Board finds the orthopedists' findings more indicative of the symptomatology of the Veteran's knees. The Motion found that the Board should have considered whether the difference between the nurse practitioner's and the orthopedists' findings meant that the Veteran's instability was of an intermittent nature. The Board agrees, and that is in fact exactly what the Board addressed in segregating the nurse's findings from the findings of the orthopedists. That is what a staged rating is all about. Hart, 21 Vet. App. at 505. Nonetheless, even intermittent symptomatology must be chronic for the period for which it is present, as opposed to a brief transient flare-up. As a result of his surgery, the orthopedists were evaluating the Veteran almost monthly. In light of this fact, if bilateral instability was a chronic ongoing component of the Veteran's bilateral knee symptomatology during that period of time, the examining orthopedists would have noted it in their clinical examination reports. It bears repeating that there was imaging evidence that was not clearly in accord with the nurse practitioner's February 2002 findings, primarily the March 2002 MRI examination, but the Board still allowed the separate ratings for the period February to April 2002. Hence, the Board assigns greater weight to the findings of the orthopedists and finds that as of April 19, 2002, there was no factual basis for separate ratings for instability. The January 2006 examination report noted no findings of instability of either knee. In February 2010, the Veteran underwent a partial left knee lateral meniscectomy, and chondroplasty of the patella and medial femoral condyle with micro fracture of the medial femoral condyle. In an April 2010 rating decision the appellant was awarded a temporary 100 percent convalescent rating for his left knee disorders under the provisions of 38 C.F.R. § 4.30 (2012). Given the assigned 100 percent rating, there is no basis to award a higher evaluation for the left knee in light of this award during the period from February 3 to March 30, 2010. The April 2010 rating decision assigned a 10 percent evaluation for instability of the left knee, effective April 1, 2010, following the temporary total rating. This rating was subsequently reduced to a noncompensable rating, effective May 1, 2011, by way of a February 2011 rating decision that found clear and unmistakable error in the April 2010 award of a compensable rating for left knee instability. The RO reversed itself in a January 2013 rating decision, and restored the 10 percent for left knee instability effective April 1, 2010. The issue of entitlement to a rating in excess of 10 percent for instability of the left knee since April 1, 2010 is addressed below. In March 2010, the Veteran underwent surgery on the right knee for an articular cartilage abnormality. In an August 2011 rating decision, the RO assigned a 100 percent evaluation for the right knee disorders under the provisions of 38 C.F.R. § 4.30. Given the assigned 100 percent rating, there is no basis to award a higher evaluation for the right knee during the period from March 24, 2010 to May 31, 2010. In August 2010, the Veteran was seen for a VA examination. In pertinent part the appellant reported that his knees were unstable, that they gave way and were weak. He reported that the knees subluxed at least once daily. Significantly, physical examination revealed no left or right knee instability. McMurray's test was positive bilaterally. Despite the Veteran's August 2010 assertions of right knee instability, there was no objective evidence of instability at that time; testing was negative for right knee instability. Under these circumstances, the Board finds the opinions of the medical professionals to be more probative than the Veteran's lay assertions. The Veteran is competent to identify the feeling he perceives concerning how stable his knee is, Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007), but the examiner's findings regarding the structural integrity of the ligaments and the joint itself are findings that require medical knowledge. Id. There is no other evidence suggesting right knee instability prior to his October 22, 2012 VA examination, which is addressed in further detail below. Thus, the preponderance of the probative evidence shows that beginning April 20, 2002, there is no factual basis for a compensable rating for either knee base on instability. Hart, 21 Vet. App. at 505. Appropriate ratings for the periods of April 1, 2010 to the present (left knee instability), and October 22, 2012 to the present (right knee instability) Beginning April 1, 2010, the RO has assigned a 10 percent rating for left knee instability. The RO assigned a 10 percent rating for right knee instability beginning October 22, 2012. Thus, the issue of whether increased ratings for the period of time since the effective dates of those ratings must be considered. Id. As discussed above, the Veteran underwent VA examination of his knees in August 2010. The appellant reported that his knees were unstable, that they gave way and were weak. He reported that the knees subluxed at least once daily. Despite his lay contentions, physical examination conducted by trained medical professionals revealed no left knee instability. At an October 2012 VA knee examination, the Veteran reported instability of the knees, greater on the left than on the right. Testing of the knees for stability provided identical results. The Lachman test for anterior instability was 1+ bilaterally (with a range of potential scores including "normal" 1+ (representing 0-5mm), 2+ (representing 5-10mm), and 3+ (representing 10-15mm)). Scores on the tests for posterior instability and medial-lateral instability were also 1+ on the scale provided. There was no evidence of subluxation or dislocation of the patella. Considering the rating criteria for knee instability describes disabilities as "slight," "moderate," or "severe," 38 C.F.R. § 4.71a, Diagnostic Code 5257, the Board finds that the evidence preponderates against finding entitlement to a rating higher than the current 10 percent for a slight disability. The August 2010 examiner found no objective instability of the left knee. All stability measurements performed by the October 2012 examiner, for both knees, demonstrated findings of 1+, whereas higher 2+ or 3+ findings, which could, respectively, have demonstrated moderate or severe instability, were possible. The Board acknowledges the Veteran's statements at the August 2010 examination that his left knee was unstable, and at the October 2012 examination that his instability was greater on the left. Again, while the Veteran is competent to make observations regarding whether he has instability of the knees, and whether one knee is worse than the other, the determinations as to the severity of the instability requires medical training. Jandreau, 492 F.3d at 1376-77. The October 2012 examiner, a trained medical professional, is competent to identify the levels of severity of the disability, and has done so. Further, the examiner made objective findings that the knees had similar levels of disability, each within the "1+" range of severity. The Board assigns more probative weight to the examiner's findings, and thus finds that the assigned 10 percent ratings for the left knee beginning April 1, 2010, and for the right knee beginning October 22, 2012, appropriately address the level of the Veteran's knee instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The preponderance of the evidence is against assigning a greater rating during the respective periods of time. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Extraschedular consideration The Board has also considered whether the Veteran's instability of the left and right knees presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). In this case there are no exceptional or unusual factors with regard to the Veteran's knee instability. The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) (holding that the "rating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for consideration of greater disability and symptoms than currently shown by the evidence. There is no suggestion that the Veteran has required periods of hospitalization due to knee instability, other than the periods of time already represented by temporary total ratings. To the extent that the disabilities have impacted his employability, the Veteran has been granted a total disability rating based on individual unemployability. Regarding periods of time prior to the Veteran's total disability rating, in addition to the fact that the appellant has not disputed the effective date assigned for the total rating, the Board notes that the purpose of the rating schedule is to compensate for the average impairment in earning capacity resulting from service-connected disabilities. 38 C.F.R. § 4.1. The Board finds that his disability picture presented by each knee joint is contemplated by the rating schedule, and the assigned schedular evaluations are adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extra-schedular consideration is not warranted. In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claims, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER Entitlement to an evaluation in excess of 10 percent for instability of the left knee, for the period of February 8, 2002 to April 19, 2002, is denied. Entitlement to a compensable evaluation for instability of the left knee for the period of April 20, 2002 to March 31, 2010, is denied. Entitlement to an evaluation in excess of 10 percent for instability of the left knee, for the period beginning April 1, 2010, is denied. Entitlement to an evaluation in excess of 20 percent for instability of the right knee for the period of February 8, 2002 to April 19, 2002, is denied. Entitlement to a compensable evaluation for instability of the right knee for the period of April 20, 2002 to October 21, 2012, is denied. Entitlement to an evaluation in excess of 10 percent for instability of the right knee, for the period beginning October 22, 2012, is denied. REMAND The issue of entitlement to service connection for cervical and thoracolumbar spine disorders secondary to a bilateral patellofemoral syndrome must be remanded so that the RO/AMC can return the October 2012 VA examination report to the examiner for an addendum opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (when VA undertakes to provide an examination, the examination, and ensuing report, must be adequate). In the June 2011 remand, the Board ordered an examination to obtain opinions regarding the etiology of the Veteran's thoracolumbar and cervical spine disabilities, to include whether the disabilities were incurred in service and whether they were secondary to the Veteran's service-connected knee disabilities. In reaching the conclusion that the spine disabilities were neither directly related to service nor secondary to the Veteran's knee disabilities, the examiner relied on the Board's January 2010 decision denying the claim. In addition to the fact that the Board's decision has been vacated by the Court, the Board cannot make medical determinations. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). An examiner's opinion, to be probative, must be fully supported by an adequate rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008) (holding that a medical opinion that is not factually accurate, fully articulated, or based on sound reasoning, is not probative). Therefore, on remand, the examiner must provide a written medical explanation addressing the rationale for his October 2012 opinion. The issues of entitlement to service connection for a skin condition; whether new and material evidence has been received with respect to a claim of entitlement to service connection for a right shoulder disability, subscapularis tendon tear, to include as secondary to a right knee patella syndrome, with chondromalacia; entitlement to a rating in excess of 30 percent for status post arthroscopy, left knee with patella syndrome and chondromalacia; and entitlement to an earlier effective date for benefits paid for dependents, must be remanded for the RO/AMC to issue a statement of the case. Manlincon v. West, 12 Vet. App 238, 240 (1999). Following decisions in March 2009 and October 2010, the Veteran submitted timely notices of disagreements with regard to these four issues. Despite filing a notice of disagreement, the RO never issued statements of the case for these issues. When a Veteran has filed a notice of disagreement, and there is no statement of the case on file for the issues identified in the notice of disagreement, the Board must remand, not refer, the issues to the RO for issuance of a statement of the case. Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the examiner who provided the October 2012 opinion addressing the etiology of the appellant's spinal disorders. The examiner must review the October 2012 examination report, the claims file, any relevant documents on Virtual VA, and the directives of this Remand. The ensuing addendum must indicate that such a review occurred. The examiner must then address the following questions, with a fully supported rationale based on his training, knowledge, and experience, medical literature, and other acceptable medical resources. The examiner may not rely on any adjudicative determination by any VA tribunal (i.e., the RO, the AMC, or the Board). (a) Is it at least as likely as not, i.e., is there a 50/50 chance, that any diagnosed cervical or thoracolumbar spine, or both, is related to any injury or event during the Veteran's active service? (b) If the answer is "no," is there a 50/50 chance that either the cervical spine, thoracolumbar spine disorder, and/or both, is/are caused by the Veteran's service-connected bilateral knee disorders? The examiner must provide a full rationale in support of his opinions. If he cannot answer the questions presented without resort to speculation, he must indicate why a response would be speculative. If the October 2012 examiner is unavailable, then the requested opinions must be obtained from a similarly qualified medical professional. No examination should be performed unless deemed necessary by a medical professional for purposes of addressing the issues presented. 2. After the development requested has been completed, the RO should review the addendum to ensure that it is in complete compliance with the directives of this REMAND. The AMC/RO must ensure that the examiner documented his consideration of Virtual VA. If the report is deficient in any manner, the RO must implement corrective procedures at once. 3. Then, readjudicate the spine claims. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative must be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims folder is returned to the Board for further appellate action. 4. Undertake all appropriate steps to issue the Veteran an statement of the case addressing the issues of (1) entitlement to service connection for a skin condition; (2)whether new and material evidence has been received with respect to a claim of entitlement to service connection for a right shoulder disability, subscapularis tendon tear, to include as secondary to patella syndrome, right knee, with chondromalacia; (3)entitlement to a rating in excess of 30 percent for status post arthroscopy, left knee with patella syndrome and chondromalacia; and (4) entitlement to an earlier effective date for benefits paid for dependents. If and only if the Veteran files a timely substantive appeal (VA Form 9) on these remanded issues should the RO return these issues to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs