Citation Nr: 1329952	
Decision Date: 09/18/13    Archive Date: 09/25/13

DOCKET NO.  02-14 315	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for residuals of a chest injury and, if so, whether service connection is warranted.  

2.  Entitlement to service connection for a lumbar spine disability (claimed as mechanical low back pain).  

3.  Entitlement to service connection for a cervical spine disability.  

4.  Entitlement to an increased rating for service-connected residuals of right rotator cuff tear, to include entitlement to an initial rating in excess of 20 percent and entitlement to a rating higher in excess of 40 percent for the period beginning November 3, 2009.  

5.  Entitlement to an increased rating for service-connected left shoulder adhesive capsulitis, to include entitlement to an initial rating in excess of 20 percent and entitlement to a rating in excess of 20 percent for the period beginning November 3, 2009.  

6.  Entitlement to an initial disability rating in excess of 10 percent for service-connected left knee patellofemoral crepitance, with degenerative changes. 

7.  Entitlement to an initial disability rating in excess of 10 percent for service-connected right knee internal derangement with degenerative changes.  


REPRESENTATION

Appellant represented by:	Ronald Marzullo, Attorney


ATTORNEY FOR THE BOARD

A.J. Turnipseed, Counsel


INTRODUCTION

The Veteran served on active duty from May to November 1976, with multiple periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) with the Florida Army National Guard.  However, the Veteran's service from August 31, 1992 to November 18, 1992 is not considered active service, as the Veteran was participating in hurricane relief operations following Hurricane Andrew at that time.  See 38 U.S.C.A. § 101 (21-24).  

This matter comes before the Board of Veterans' Appeals (Board) from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  

This appeal was previously remanded by the Board in March 2007, February 2009, and April 2012 in order for the RO via the Appeals Management Center (AMC) in Washington, DC, to conduct additional evidentiary development.  Review of the claims file reveals there has been substantial compliance with the Board's remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998).  

The reopened issue of entitlement to service connection for residuals of chest injury, as well as entitlement to service connection for a lumbar spine and cervical spine disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C.  


FINDINGS OF FACT

1.  A rating decision issued in March 2001 denied entitlement to service connection for residuals of a chest injury.  

2.  The March 2001 rating decision and notice of appellate rights was mailed to the Veteran's address of record in May 2001 and was not returned as undeliverable.  The Veteran did not submit any communication expressing dissatisfaction or disagreement with the March 2001 rating decision and other communication regarding his claim of service connection for residuals of a chest injury was not received within one year of the issuance of the March 2001 rating decision.  Therefore, the March 2001 rating decision is final.  

3.  Evidence added to the record since the final March 2001 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for residuals of a chest injury.   

4.  Prior to November 3, 2009, the preponderance of the evidence reflects that the Veteran's service-connected residuals of right rotator cuff tear is manifested by subjective complaints pain, tenderness, occasional achiness, and easy fatigability.  There is evidence of limitation of motion to no less than 70 degrees of forward flexion and 90 degrees in abduction, even with consideration of flare-ups, painful motion, and additional functional limitation due to pain.  There are scars noted around the right shoulder, which are well-healed.  There is no lay or medical evidence that the right shoulder scars are deep, painful or tender on examination, or result in any limitation in the right shoulder joint.  The right shoulder disability is not manifested by ankylosis, or impairment of the humerus, clavicle or scapula.  

5.  For the period beginning November 3, 2009, the preponderance of the evidence reflects that the Veteran's service-connected residuals of right rotator cuff tear is manifested by limitation of motion to 30 degrees in flexion and 15 degrees in abduction, even with consideration of flare-ups, painful motion, and additional functional limitation due to pain.  

6.  Prior to November 3, 2009, the preponderance of the evidence reflects that the Veteran's service-connected left shoulder adhesive capsulitis is manifested by subjective complaints pain, with evidence of limitation of motion to no less than 120 degrees in forward flexion and 80 degrees in abduction, even when considering pain.  There are no scars noted around the left shoulder.  The left shoulder disability is not manifested by ankylosis, or impairment of the humerus, clavicle or scapula.  

7.  For the period beginning November 3, 2009, the preponderance of the evidence reflects that the Veteran's service-connected left shoulder adhesive capsulitis is manifested by limitation of motion to 170 degrees in flexion and 90 degrees in abduction with pain.  

8.  The preponderance of the evidence shows that the Veteran's service-connected left knee patellofemoral crepitance, with degenerative changes, is manifested by subjective complaints of pain, limited motion, and occasional giving way.  Objective evidence shows the Veteran's range of motion in flexion is limited to no less than 70 degrees on the left, even with consideration of pain, and the evidence consistently shows normal extension to zero degrees in his left knee, although there is a single notation of extension limited to 10 degrees in the left knee.  Additional functional limitation due to fatigue, weakness, lack of endurance, and incoordination is not shown.

9.  The preponderance of the evidence shows that the Veteran's service-connected right knee internal derangement with degenerative changes is manifested by subjective complaints of pain and limited motion.  Objective evidence shows the Veteran's range of motion in flexion is limited to no less than 80 degrees on the right, even with consideration of pain, and the evidence consistently shows normal extension to zero degrees in his right knee, although there is a single notation of extension limited to 5 degrees in the right knee.  Additional functional limitation due to fatigue, weakness, lack of endurance, and incoordination is not shown.


CONCLUSIONS OF LAW

1.  The March 2001 rating decision that denied service connection for residuals of a chest injury is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.1103 (2001) [(2012)].  

2.  New and material evidence to reopen the previously denied claim of entitlement to service connection for residuals of chest injury has been received.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2012).

3.  The criteria for an initial rating in excess of 20 percent for service-connected residuals of right rotator cuff tear, prior to November 3, 2009, are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.31, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5201 (2012).  

4.  The criteria for a rating in excess of 40 percent for service-connected residuals of right rotator cuff tear, prior to November 3, 2009, are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.31, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5201 (2012).  

5.  The schedular criteria for a noncompensable (zero percent) disability rating for the scar associated with service-connected residuals of right rotator cuff tear have been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.31, 4.118, Diagnostic Code 7802 (in effect prior to December 2008) (2012).  

6.  The criteria for an initial rating in excess of 20 percent for service-connected left shoulder adhesive capsulitis, prior to November 3, 2009, are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.31, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5201 (2012).  

7.  The criteria for a rating in excess of 30 percent for service-connected left shoulder adhesive capsulitis are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.31, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5201 (2012).  

8.  The schedular criteria for a disability rating higher than 10 percent for service-connected left knee patellofemoral crepitance, with degenerative changes have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261 (2012).

9.  The schedular criteria for separate 10 percent disability rating, but no higher, for instability of the left knee has been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2012).

10.  The schedular criteria for a disability rating higher than 10 percent for service-connected right knee internal derangement with degenerative changes have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).  

In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that the VCAA notice requirements in regard to new and material evidence claims require VA to send a specific notice letter to the claimant that: (1) notifies him or her of the evidence and information necessary to reopen the claim (i.e., describes what is meant by new and material evidence); (2) identifies what specific evidence is required to substantiate the element or elements needed for service connection that were found insufficient in the prior denial on the merits; and (3) provides general VCAA notice for the underlying service connection claim.

In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the VCAA 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.  

In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits.  

As the Board's decision to reopen the Veteran's claim of entitlement to service connection for residuals of a chest injury is completely favorable, no further action is required to comply with the VCAA and implementing regulations.  However, consideration of the merits of the issues is deferred pending additional development consistent with the VCAA.

With respect to the increased rating claims on appeal, the Board observes that the Veteran has appealed with respect to the propriety of the initially assigned rating for his service-connected bilateral shoulder and knee disabilities from the original grant of service connection.  VA's General Counsel has held that no VCAA notice is required for such downstream issues.  VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004).  In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated."  Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006).  In this case, the Veteran's claims for service connection for his right shoulder, left shoulder, right knee, and left knee disabilities were granted and an initial rating was assigned in the March 2001 and January 2003 rating decisions on appeal.  Therefore, as the Veteran has appealed with respect to the initially assigned ratings, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). 

With regard to the duty to assist, all pertinent, identified medical records have been obtained and considered, including VA treatment records dated from 1996 to 2012.  In this regard, the Board notes that the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process, including portions of the Veteran's VA treatment records.  The Board has reviewed the contents of the paperless file, and it is apparent that the RO reviewed all evidence in the paperless claims file as well.  

Additionally, the Veteran was afforded several VA examinations in conjunction with the claims on appeal, including in April 2000, June 2005, April 2008, October 2012, and April 2013, and there is no allegation or indication that the VA examinations were not adequate for rating purposes.  Moreover, the Board finds that the examinations are adequate in order to evaluate the Veteran's service-connected disabilities as they include an interview with the Veteran, a review of the record, physical examinations, and address all relevant rating criteria.  Therefore, the Board finds that the examination reports of record are adequate to adjudicate the Veteran's initial rating claims and no further examination is necessary.

For the foregoing reasons, the Board finds that VA has satisfied its duties to inform and assist the Veteran at every stage in this case.  As such, the Veteran will not be prejudiced by a decision on the merits of her claim.

II.  New and Material Evidence Claim

By way of background, entitlement to residuals of a chest injury was denied in a September 1996 rating decision on the basis that the claim was not well grounded.  The Veteran submitted a timely notice of disagreement (NOD) as to the September 1996 rating decision and a May 2001 statement of the case (SOC) was issued thereafter.  

With respect to the September 1996 rating decision, the Board notes the enactment of the VCAA eliminated the concept of a "well-grounded" claim.  See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  Section 7(b) of the VCAA states that, in the case of a claim for benefits finally denied as being not well grounded between July 14, 1999, and November 9, 2000, the claim can be re-adjudicated upon the request of the claimant or the Secretary's own motion as if the denial had not been made.  Moreover, in VAOPGCPREC 3-2001, the VA General Counsel provided guidance on claim readjudication under the VCAA.  The opinion instructs that a proper claim for readjudication, one where the prior claim was denied as not well grounded and became final within the statutory period, must be adjudicated as if the original denial or dismissal never took place.  

As such, because the September 1996 rating decision denied the Veteran's claim as not well grounded, the Board finds will evaluate this claim as if the September 1996 never took place.  

In a March 2001 rating decision, the RO denied service connection for residuals of a chest injury.  At that time, the evidentiary record contained post-service treatment records which showed the Veteran reported having chest pain since 1992 when he was making a circular motion with his left upper extremity.  Post-service evidence showed the Veteran's chest pain was evaluated for a possible cardiac involvement and was diagnosed as costochondral pain.  See post-service treatment records dated August 1997.  After considering this evidence, the RO noted that the service treatment records (STRs) did not contain evidence of a chronic disability from chest injury and, thus, denied the Veteran's claim on the basis that the evidence did not show a disability associated with an injury to the chest during active duty service.  See March 2001 rating decision.  

The Veteran was notified of the RO's decision and his appellate rights in May 2001.  No further communication regarding the Veteran's service connection claim was received until July 2004, when VA received his first application to reopen the previously denied claims of service connection for several conditions, including chest pain.  As the Veteran did not submit any communication regarding his previously denied claim during the one year appeal period following the May 2001 rating decision.  Therefore, the May 2001 rating decision is final.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2001) [(2012)].  

In reaching such determination, the Board has considered the provisions of 38 C.F.R. § 3.156(b), which holds that new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.  In the instant case, the Board notes that the Veteran did not submit any communication or other evidence, including evidence that can be construed as new and material evidence relevant to his claims, during the one year appeal period following the May 2001 rating decision.  Therefore, the Board finds that 38 C.F.R. § 3.156(b) is not applicable to this case.  See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999).

Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority.  38 C.F.R. § 3.104(a).  The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a).

Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c).  The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 

New evidence means existing evidence not previously submitted to agency decisionmakers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).  The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion.  Id.  

For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

At the time of the last final rating decision issued in May 2001, the RO considered the Veteran's STRs, which did not contain any complaints, treatment, or findings relevant to a chronic disability manifested as a result of a chest injury.  The RO also considered post-service medical evidence which showed the Veteran reported having chest pain since 1992 but did not contain evidence linking the Veteran's chest pain to his military service.  

Since the last final rating decision, the Veteran has submitted several statements and post-service treatment records in support of his claim which were not of record at the time of the last final rating decision.  See private treatment records dated from 2001 to 2006; VA treatment records dated from 2003 to 2012.  The post-service treatment records indicate that the Veteran's chest pain may be related to his bilateral shoulder disabilities, particularly his service-connected right shoulder disability.  Indeed, the treatment records show that the Veteran has consistently reported having chest pain since the injury to his right shoulder in 1992.  The Veteran's chest pain has been diagnosed as angina and deemed non-cardiac in nature.  See February 2002 psychological evaluation from Dr. A.M.; August 2003 private treatment record; VA treatment records dated March 2003, April 2005.  In April 2010, the Veteran's treating physician noted that the Veteran's chest pain is related to his right shoulder injury.  

As noted, the post-service treatment records indicate that the Veteran's current chest pain is related to his service-connected right shoulder disability, but they do not contain a rationale as indicated by medical evidence or opinion contained therein.  Nevertheless, as noted, in determining whether new and material evidence has been submitted to reopen a claim for service connection, the Board presumes the credibility of all evidence.  

Therefore, the Board finds that the post-service medical evidence submitted since the March 2001 rating decision is new and raises a reasonable possibility of substantiating the claim.  As such, the Board finds that the new and material evidence trigger's VA's duty to assist in providing the Veteran with a VA examination.  See Shade, supra.  Accordingly, the claim for entitlement to service connection for residuals of a chest injury is reopened.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).  


III.  Increased Rating Claims

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  

If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  All reasonable doubt as to the degree of disability will be resolved in favor of the claimant.  38 C.F.R. § 4.3.

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition.  38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).  

In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Consideration must be given to staged ratings, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal.  Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).

When evaluating musculoskeletal disabilities based on limitation of motion, a higher rating must be considered where the evidence demonstrates additional functional loss due to pain, pursuant to 38 C.F.R. §§ 4.40 and 4.45.  The diagnostic codes pertaining to range of motion do not subsume sections 4.40 and 4.45, and the rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups.  DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).  

Right Shoulder

As noted in the Introduction of this decision, the Veteran is seeking an increased rating for his service-connected right disability, to include an initial rating higher than 20 percent (for the period before November 3, 2009) and a rating higher than 40 percent for the period beginning November 3, 2009.  

The Veteran's right shoulder disability is currently evaluated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5010-5201.  The hyphenated diagnostic code used for rating this disability indicates that the disability involves arthritis, under DC 5010, and limitation of motion, under DC 5201.  In evaluating the Veteran's claims, however, the Board will consider all potentially applicable diagnostic codes in order to afford him the highest possible disability rating.  In this regard, the pertinent law will be provided below.  

The evidence establishes the Veteran is right-hand dominant; thus, his service-connected right shoulder disability involves his major extremity.  With respect to the major extremity, DC 5201 provides that limitation of motion of the arm at shoulder level warrants a 20 percent rating.  A 30 percent rating is warranted for limitation of motion midway between side and shoulder level, while a 40 percent rating is warranted for limitation of motion at 25 degrees from side.  38 C.F.R. § 4.71a.

Initial Rating Higher than 20 Percent (before November 3, 2009)

For the period before November 3, 2009, the pertinent evidence of record includes VA examination reports dated June 1996, April 2000, October 2002, June 2005, September 2005, April 2008, as well as various VA and private treatment records dated from 1995 to 2009.  

Private treatment records show complaints of right shoulder pain as early as August 1997, while VA treatment records show continued complaints of right shoulder pain until 2012.  

On VA joints examination in June 1996, the Veteran reported being unable to achieve full range of motion, with occasional achiness with range of motion and lifting.  On examination, the Veteran was able to demonstrate abduction to 150 degrees in the right arm, while his internal and external rotation was limited to 65 degrees on the right.  His motor strength was normal.  The physician who conducted the June 1996 general medical examination noted there are two one inch scars surrounding the right shoulder related to a previous arthroscopy, which were well-healed and non-painful.  

On VA examination in April 2000, the Veteran reported having increased right shoulder pain, with flare-ups of pain that occurred between one and three times a week.  He also reported having pain with overhead activity and rolling onto his shoulder.  On examination, the Veteran was able to demonstrate forward flexion to 95 degrees, abduction to 90 degrees, internal rotation to 20 degrees, and external rotation to 90 degrees.  His range of motion was limited secondary to pain, but the Veteran's muscle strength was normal.  

In December 2001, the Veteran reported having bilateral shoulder pain, which was accentuated with arm movement.  Objective examination revealed forward flexion to 140 degrees, abduction to 90 degrees, and external rotation to 45 degrees bilaterally.  There was tenderness to palpation over both shoulders and positive impingement signs bilaterally manifested by pain and crepitus.  There was no demonstrable instability.  The examiner noted the Veteran had scars over this right shoulder from the previous arthroscopy but no other information or evidence is noted regarding the scars.  See December 2001 record from Dr. C.J.  

On VA examination in October 2002, the Veteran reported experiencing easy fatigability and objective examination revealed weakness in the right shoulder.  Objective examination revealed forward flexion and abduction limited to 90 degrees, with external rotation limited to 75 degrees on the right.  There was no evidence of significant flare-ups, and the right shoulder scars noted on examination were well-healed.  

On VA examination in June 2005, the Veteran's right shoulder range of motion was limited to 140 degrees in forward flexion, 120 degrees in abduction, and 60 degrees in internal and external rotation.  There was no evidence of weakened movement or incoordination, but there was objective evidence of excess fatigability and painful motion.  The June 2005 VA examiner estimated the Veteran experiences 10 degrees of functional loss with repetitive use.  

On VA examination in September 2005, the Veteran reported having flare-ups with overhead lifting or reaching.  On objective examination, the Veteran's right shoulder range of motion was limited to 180 degrees in forward flexion and abduction, with objective evidence of pain, while internal rotation was limited to 60 degrees in internal rotation, and external rotation was limited to 90 degrees.  

On VA examination in April 2008, the Veteran's range of motion in the right shoulder was limited to 160 degrees in forward flexion, 50 degrees in extension, 70 degrees in internal and external rotation, 120 degrees in abduction (with some pain), and 50 degrees in adduction.  There was no change in range of motion after repetitive use, but the examiner noted there was some abduction pain indicating mild impingement, although the worst pain came from radiculopathy from his neck.  The April 2008 VA examiner stated that the Veteran's additional functional loss due to pain was 30 degrees, with no additional limitation caused by fatigue, lack of endurance or incoordination.  

VA treatment records show the Veteran has variously reported experiencing pain with elevation of the right shoulder.  In February 2007, he reported that abduction revealed pain with elevation above 30 degrees.  In September 2008, the Veteran reported experiencing pain above 90 degrees of abduction.  In March 2009, the Veteran reported experiencing pain above 45 degrees of abduction, although he was able to rotate his right shoulder.  

In February 2009, the Veteran presented for treatment reporting that he was unable to lift anything.  The Veteran underwent right shoulder arthroscopy in July 2009.  

Turning to the merits of the Veteran's claim, the Board finds that an initial rating in excess of 20 percent is not warranted for the service-connected right shoulder disability at any time from June 4, 1996, the effective date of the award of service connection, through November 2, 2009.  

The pertinent evidence of record shows that the Veteran's right shoulder disability is manifested by limitation of motion in forward flexion and abduction, but the pertinent evidence does not show that the Veteran's right shoulder has been limited to midway between his side and shoulder level, i.e., 45 degrees, or to 25 degrees from the side.  At best, the evidence shows that the Veteran's range of motion is limited to no less than 95 degrees in forward flexion and 90 degrees in abduction.  

In making this determination, the Board has considered whether a higher rating is warranted prior to November 2009 based upon 38 C.F.R. §§ 4.40, 4.45 and Deluca, supra.  As noted, the Veteran has reported experiencing flare-ups in the right shoulder joint and there is objective evidence of painful motion, as documented on various examinations throughout the record.  The June 2005 VA examiner noted there was an additional 10 degree loss of range of motion with repetitive use, resulting in 130 degrees of forward flexion and 110 degrees in abduction.  See June 2005 VA examination report.  Likewise, the April 2008 VA examiner estimated an additional 30 degree loss due to pain, resulting in 70 degrees of forward flexion and 90 degrees in abduction.  See April 2008 VA examination report.  

Despite the evidence showing flare-ups, painful motion, and additional functional limitation due to pain, the lay and medical evidence of record does not show that the Veteran's pain has been so disabling to result in limitation of the arm midway between the side and shoulder level, limitation of arm motion at 25 degrees from side, or any other functional impairment that would warrant a rating higher than 20 percent for a major extremity under DC 5201.  

The Board has considered the applicability of other diagnostic codes for rating the right shoulder disability but finds that no other diagnostic code provides a basis for a rating higher than 20 percent at any point prior to November 3, 2009, as ankylosis, and impairment of the humerus, clavicle or scapula are not shown at any time prior to that date.  See 38 C.F.R. § 4.71a.  

Therefore, the Board finds that the preponderance of the evidence is against the grant of an initial rating in excess of 20 percent for the Veteran's service-connected right shoulder disability.  As noted, the criteria for a higher rating under DC 5201 are not met and, even with consideration of the sections 4.40 and 4.45 and DeLuca, the record presents no basis for assignment of a rating higher than 20 percent prior to November 3, 2009.  

Period beginning November 3, 2009 

On November 3, 2009, the Veteran's right shoulder range of motion was limited to 30 degrees in flexion and 15 degrees in abduction.  See November 2009 VA treatment record.  As such, the Veteran's disability rating was increased to 40 percent, effective November 3, 2009.  

In December 2009, the Veteran's right shoulder range of motion was limited to 75 degrees in flexion and 65 degrees in abduction.  In January 2010, the Veteran's right shoulder range of motion was limited to 105 degrees in flexion and 70 degrees in abduction.  In February 2010, the Veteran's right shoulder range of motion was limited to 100 and 110 degrees in flexion and 60 and 90 degrees in abduction.  The Veteran's range of motion was limited by pain in February 2010 and the examiner also noted that the Veteran experienced tenderness to palpation at that time.  See February and March 2010 VA treatment records.  

On VA examination in October 2012, the Veteran reported having right shoulder pain with overhead use.  His flexion was limited to 90 degrees with pain, while abduction was limited to 80 degrees.  The VA examiner stated that the Veteran's functional loss is demonstrated by lessened, painful motion and there was positive evidence of impingement, but his muscle strength was normal.  The VA examiner also noted that the Veteran was very limited in lifting anything more than five pounds in the right arm.  

Turning to the merits of the Veteran's claim, the Board notes that 40 percent is the highest possible evaluation assignable under DC 5201.  As such, the Board has considered the Veteran's right shoulder disability under all other potentially applicable diagnostic codes.  However, the pertinent evidence of record does not show that the Veteran's right shoulder disability is manifested by ankylosis, impairment of the humerus, or impairment of the clavicle or scapula at any time after November 3, 2009.  See 38 C.F.R. § 4.71a.  Therefore, DCs 5200, 5202 and 5203 do not assist the Veteran in obtaining a rating higher than 40 percent from November 3, 2009.  

In this context, the Board has considered whether the right shoulder disability should be referred for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1).  An extra-schedular rating is warranted if a case presents such an exceptional or unusual disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization, that it would be impracticable to apply the schedular standards.  Analysis under this provision involves a three-step inquiry, and extra-schedular referral is necessary only if analysis under the first two steps reveals that the rating schedule is inadequate to evaluate the claimant's disability picture and that such picture exhibits such related factors as marked interference with employment or frequent periods of hospitalization.  Thun v. Peake, 22 Vet. App. 111, 115-16 (2008).

In this appeal, the manifestations of the Veteran's right shoulder disability are fully contemplated by the schedular rating criteria.  Indeed, the Veteran's symptoms of decreased, painful right shoulder motion are contemplated by the disability ratings currently assigned, and there has been no showing that the Veteran's disability picture is not contemplated adequately by the rating criteria discussed above.  As such, the rating criteria reasonably describe the Veteran's disability level and symptomatology associated with his right shoulder disability, and the rating schedule is adequate to evaluate the disability picture.  

Therefore, it is unnecessary to discuss the second prong, i.e., whether there are related factors such as marked interference with employment or frequent periods of hospitalization.  See id.  However, the Board notes that the Veteran has not been hospitilzied for his right shoulder disbility at any time during the course of the appeal.  Further, the percentage ratings are considered adequate to compensate for considerable loss of working time from exacerbations proportionate to the severity of the several grades of disability.  38 C.F.R. § 4.1.  As such, referral for consideration of an extra-schedular rating is not necessary.  See Thun, 22 Vet. App. at 115-16.  

Based on the foregoing, the Board finds that the preponderance of the evidence is against the grant of a rating in excess of 40 percent for the Veteran's service-connected right shoulder disability for the period beginning November 3, 2009.  As noted, the Veteran is currently receiving the highest rating available under DC 5201 and the other potential diagnostic codes do not assist the Veteran in obtaining a higher rating.  Moreover, there is no basis on which to refer this claim for extra-schedular consideration.  

In evaluating the Veteran's increased rating claim, the Board has also considered whether a separate, compensable rating is warranted for any scars associated with the Veteran's service-connected right shoulder disability.  During the pendency of the Veteran's claim and appeal, amendments were made to the criteria for rating the skin, effective October 23, 2008.  See 73 Fed. Reg. 54,710 (Sept. 23, 2008) (codified at 38 C.F.R. § 4.118, DCs 7800 to 7805 (2011).  However, these amendments only apply to applications received by VA on or after October 23, 2008, or if the Veteran expressly requests consideration under the new criteria, which she has not done here.  Therefore, the Board has no authority to consider these revisions in deciding this claim and they will not be discussed herein.  See VAOPGCPREC 3-00; 38 U.S.C.A. § 5110(g).  Therefore, only the pre-October 2008 version of the schedular criteria is applicable in this case.

Under the regulations and criteria in effect prior to October 2008, a 10 percent evaluation is warranted for scars covering an area of 144 square inches or greater where superficial and without resulting limited motion; for a superficial, unstable scar (characterized by frequent loss of skin covering the scar); or a superficial scar that is painful on examination.  38 C.F.R. § 4.118, DCs 7802 to 7804 (2008).  Under DC 7801, scars other than on the head, face, or neck, where such are deep and cause limited motion, warrant a 10 percent rating if they cover an area exceeding six square inches; a 20 percent rating if covering an area exceeding 12 square inches; a 30 percent rating if covering an area exceeding 72 square inches; and a 40 percent rating if covering an area exceeding 144 square inches.  Otherwise, scars will be rated on the limitation of motion of the affected part, under DC 7805.  

In this case, the evidence shows that the Veteran has scars on his right shoulder related to his previous arthroscopy.  See VA examination reports dated June 1996 and October 2002.  The evidence does not provide any information or evidence regarding the measurements of the right shoulder scars or whether the scars are superficial or adherent to underlying tissue.  VA examiners have noted, however, that the scars are well-healed and not painful or tender on examination.  There is no lay or medical evidence showing that the scars result in any limitation in the right shoulder joint.  See VA examination reports dated June 1996 and October 2002.  

Applying these facts to the diagnostic criteria listed above, the Board finds that a compensable disability rating is not warranted for the right shoulder scars under DCs 7801 to 7805 (2008).  However, in every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31.  As such, the Board finds that a separate, noncompensable (zero percent) disability rating is warranted for the scar associated with the Veteran's service-connected right shoulder disability.  

In summary, the Board finds the preponderance of the evidence is against the grant of an initial rating higher than 20 percent for the Veteran's service-connected right shoulder disability, or a rating higher than 40 percent for the period beginning November 3, 2009.  The preponderance of the evidence supports the grant of a separate, noncompensable rating for the scar associated with the service-connected right shoulder disability.  In evaluating this claim, all reasonable doubt has been resolved in favor of the Veteran.  See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Left Shoulder

The Veteran is seeking an increased rating for his service-connected left shoulder disability, which includes entitlement to an initial rating higher than 20 percent and a rating higher than 30 percent for the period beginning November 3, 2009.  

The Veteran's left shoulder disability is currently evaluated under Diagnostic Code (DC) 5299-5201.  The provisions of 38 C.F.R. § 4.27 provide that unlisted disabilities requiring rating by analogy will be coded with the first two numbers of the schedule provisions for the most closely related body part and "99."  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned.  The additional code is shown after a hyphen.  In this case, the RO determined that the Veteran's left shoulder disability is rated based upon limitation of motion under DC 5201.  

With respect to the minor extremity, DC 5201 provides that limitation of the arm at shoulder level or midway between side and shoulder level warrants a 20 percent rating.  A 30 percent rating is warranted for limitation of arm motion at 25 degrees from side.  38 C.F.R. § 4.71a.

Initial Rating Higher than 20 Percent (before November 3, 2009)

For the period before November 3, 2009, the pertinent evidence of record includes VA examination reports dated June 1996, October 2002, April 2008, as well as various VA treatment records.  

VA treatment records show the Veteran has reported experiencing chronic pain in his left shoulder.  See VA treatment records dated June and September 2006.  

On VA joints examination in June 1996, the Veteran did not report any symptoms related to the left shoulder.  Objective examination revealed he was able to demonstrate abduction to 180 degrees in the left arm, while his internal and external rotation was limited to 90 degrees.  

In December 2001, objective examination revealed forward flexion to 140 degrees, abduction to 90 degrees, and external rotation to 45 degrees bilaterally.  There was tenderness to palpation over both shoulders and positive impingement signs bilaterally manifested by pain and crepitus.  There was no demonstrable instability.  See December 2001 record from Dr. C.J.  

On VA examination in October 2002, objective examination revealed forward flexion and abduction limited to 90 degrees, with external rotation limited to 60 degrees on the left.  

On VA examination in April 2008, the Veteran reported experiencing pain, but he denied having weakness, stiffness, swelling, instability, locking, fatigability, or lack of endurance.  On examination, the Veteran's range of motion in the left shoulder was limited to 150 degrees in forward flexion, 40 degrees in extension, 60 degrees in internal and external rotation, 110 degrees in abduction, and 50 degrees in adduction.  There was no change in range of motion after repetitive use, and the examiner noted that the Veteran's pain comes from motion in his head and neck on the left, not his shoulder, although he noted that some of the pain comes from the shoulder.  The April 2008 VA examiner stated that the Veteran's additional functional loss due to pain was 30 degrees, with no additional limitation caused by fatigue, lack of endurance or incoordination.  

Applying these facts to the diagnostic criteria listed above, the Board finds that an initial rating in excess of 20 percent is not warranted for the service-connected left shoulder disability at any time from October 25, 2001, the effective date of the award of service connection, through November 2, 2009.  Indeed, the pertinent evidence does not show that the Veteran's left shoulder was limited to 25 degrees from the side prior to November 3, 2009.  

The pertinent evidence of record shows that the Veteran's left shoulder disability is manifested by limitation of motion but, during the time period in question, the Veteran's left shoulder range of motion was limited to no less than 120 degrees in forward flexion and 80 degrees in abduction, even when considering pain.  See VA examination reports dated June 1996, October 2002, and April 2008.  

In evaluating this claim, the Board notes the Veteran reported experiencing flare-ups in the left shoulder joint and there is objective evidence of some pain while demonstrating abduction in the left shoulder.  As noted, the April 2008 VA examiner estimated an additional 30 degree loss due to pain, resulting in 120 degrees of forward flexion and 80 degrees in abduction.  See April 2008 VA examination report.  Despite the foregoing, the lay and medical evidence of record does not show that the Veteran's pain has been so disabling to result in limitation of arm motion at 25 degrees from side or any other functional impairment that would warrant a rating higher than 20 percent for a minor extremity under DC 5201.  Therefore, a rating higher than 20 percent is not warranted under DC 5201 or with consideration of the left shoulder disability under 38 C.F.R. §§ 4.40, 4.45 and Deluca, supra.  

The Board has considered the applicability of other diagnostic codes for rating the left shoulder disability but finds that no other diagnostic code provides a basis for a rating higher than 20 percent at any point prior to November 3, 2009, as ankylosis, and impairment of the humerus, clavicle or scapula are not shown at any time prior to that date.  See 38 C.F.R. § 4.71a.  

Therefore, the Board finds that the preponderance of the evidence is against the grant of an initial rating in excess of 20 percent for the Veteran's service-connected left shoulder disability.  As noted, the criteria for a higher rating under DC 5201 are not met and, even with consideration of the sections 4.40 and 4.45 and DeLuca, the record presents no basis for assignment of a rating higher than 20 percent prior to November 3, 2009.  


Period beginning November 3, 2009

In August 2010, the RO increased the disability rating assigned to Veteran's left shoulder to 30 percent, effective November 3, 2009.  The RO noted that a VA treatment record dated November 3, 2009 showed, in pertinent part, that the Veteran's abduction ranged from 15 to 70 degrees.  See August 2010 Rating Decision.  

At the outset, the Board notes that review of the November 2009 VA treatment record shows that the range of motion provided corresponds to the Veteran's right shoulder.  There is no information or evidence regarding the Veteran's left shoulder in November 2009.  See November 2007 VA treatment record.

Nevertheless, the Board will proceed to evaluate whether a rating higher than 30 percent is warranted for the period beginning November 3, 2009.  

On VA examination in October 2012, the Veteran's left shoulder flexion was limited to 170 degrees, while his abduction was limited to 90 degrees with pain.  The VA examiner stated that the Veteran's functional loss is demonstrated by lessened, painful motion and there was positive evidence of impingement, but his muscle strength was normal bilaterally.  The VA examiner also noted that the Veteran was limited in lifting anything with his left arm.  

Turning to the merits of the Veteran's claim, the Board notes that 30 percent is the highest possible evaluation assignable under DC 5201 for a minor extremity.  As such, the Board has considered the Veteran's left shoulder disability under all other potentially applicable diagnostic codes.  The pertinent evidence of record does not show that the Veteran's left shoulder disability is manifested by ankylosis, impairment of the humerus, or impairment of the clavicle or scapula at any time after November 3, 2009.  See 38 C.F.R. § 4.71a.  Therefore, DCs 5200, 5202 and 5203 do not assist the Veteran in obtaining a rating higher than 30 percent from November 3, 2009.  

In this context, the Board has considered whether the left shoulder disability should be referred for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1).  See Thun, supra.  In this case, however, the manifestations of the Veteran's left shoulder disability are fully contemplated by the schedular rating criteria, as the Veteran's symptoms of decreased, painful left shoulder motion are contemplated by the disability ratings currently assigned.  There is no evidence showing the Veteran's disability picture is not contemplated adequately by the rating criteria discussed above.  As such, the rating criteria reasonably describe the Veteran's disability level and symptomatology associated with his left shoulder disability, and the rating schedule is adequate to evaluate the disability picture.  

Therefore, it is unnecessary to discuss the second prong, i.e., whether there are related factors such as marked interference with employment or frequent periods of hospitalization.  See id.  However, the Board notes that the Veteran has not been hospitilzied for his left shoulder disbility at any time during the course of the appeal.  Further, the percentage ratings are considered adequate to compensate for considerable loss of working time from exacerbations proportionate to the severity of the several grades of disability.  38 C.F.R. § 4.1.  As such, referral for consideration of an extra-schedular rating is not necessary.  See Thun, 22 Vet. App. at 115-16.  

Based on the foregoing, the Board finds that the preponderance of the evidence is against the grant of a rating in excess of 30 percent for the Veteran's service-connected left shoulder disability for the period beginning November 3, 2009.  As noted, the Veteran is currently receiving the highest rating available under DC 5201 and the other potential diagnostic codes do not assist the Veteran in obtaining a higher rating.  Moreover, there is no basis on which to refer this claim for extra-schedular consideration.  

In summary, the Board finds the preponderance of the evidence is against the grant of an initial rating higher than 20 percent for the Veteran's service-connected left shoulder disability, or a rating higher than 30 percent for the period beginning November 3, 2009.  Because the evidence preponderates against the Veteran's claim, the benefit-of-the-doubt doctrine is inapplicable.  See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Left and Right Knee Disabilities

The Veteran is seeking a rating higher than 10 percent for his service-connected left and right knee disabilities, which are currently rated under DC 5010.  

Under DC 5010, arthritis due to trauma, which is substantiated by X-ray findings, will be rated as degenerative arthritis under DC 5003.  Under DC 5003, degenerative arthritis, when substantiated by X-rays, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under DC 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  

In the absence of limitation of motion, a 20 percent disability rating is warranted with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent disability rating is warranted with x-ray evidence of involvement of two or more major joints or two or more minor joint groups.  Note 1 accompanying DC 5003 states that the 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based upon limitation of motion.  Note 2 states that the 20 percent and 10 percent ratings based on X-ray findings will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024.  38 C.F.R. § 4.71a, DC 5003.

Normal extension and flexion of the knee is from 0 to 140 degrees.  38 C.F.R. § 4.71, Plate II (2012).

Under DC 5260, a noncompensable rating is warranted for flexion limited to 60 degrees, a 10 percent rating is warranted for flexion limited to 45 degrees, a 20 percent rating is warranted for flexion limited to 30 degrees, and a 30 percent rating is warranted for flexion limited to 15 degrees.  Under DC 5261, a noncompensable rating is warranted for extension limited to five degrees, a 10 percent rating is warranted for extension limited to 10 degrees, a 20 percent rating is warranted for extension limited to 15 degrees, a 30 percent rating is warranted for extension limited to 20 degrees, a 40 percent rating is warranted for extension limited to 30 degrees, and a 50 percent rating is warranted for extension limited to 45 degrees.  38 C.F.R. § 4.71a, Plate II, indicates that normal flexion of the knee is 140 degrees and normal extension of the knee is zero degrees.  

On VA examination in June 1996, the Veteran reported having soreness in the left knee.  He reported using a knee brace with mild relief occasionally.  X-rays of the knee revealed mild degenerative arthritis.  On examination, there was evidence of bilateral patellofemoral crepitus, left more than right, but range of motion was not tested at that time.  

On VA examination in November 1999, the Veteran reported having mild weakness in his left knee, although he denied locking, swelling, or stiffness.  The Veteran also reported being able to walk no more than two blocks and being unable to run.  He reported having flare-ups 25 days out of 30, during which he is able to move his knee throughout normal range of motion, albeit slowly.  The examiner noted the Veteran did not use assistive devices.  Objective examination revealed the Veteran was able to demonstrate left and right knee flexion to 140 degrees and extension to zero degrees.  The examiner stated that, while there is normal range of motion there is pain during a particular point in extension from 40 to 10 degrees, which may be radiating from his low back.  The Veteran's cruciate and collateral ligaments were intact and stable.  

In December 2001, objective examination of the knees revealed range of motion from zero to 125 degrees.  There was some swelling bilaterally but no true effusion.  There was some varus and facet tenderness medially.  There was also pseudo laxity medially, but the physician stated there was no anterior, posterior, or rotary instability of the knees noted.  See December 2001 record from Dr. C.J.  

On VA examination in December 2002, the Veteran reported having constant pain in his bilateral knees, which is exacerbated by any physical activity, particularly walking.  Objective examination revealed the Veteran limps and favors his left leg.  Knee flexion and extension on the right was from five to 120 degrees, while his left knee flexion and extension was from 10 to 100 degrees.  X-rays revealed moderate degenerative changes bilaterally.  The December 2002 VA examiner estimated that, during flare-ups, there is an additional 30 percent loss in range of motion due to pain, fatigue, and/or repeated use.  

On VA examination in September 2005, the Veteran reported having left and right knee pain, with flare-ups caused by activity and repetitive motion.  He reported an occasional sensation of giving way in his left knee, but he denied any giving way or locking in the right knee.  On examination, the Veteran demonstrated full range of motion from zero to 140 degrees, and repetitive motion did not reveal any additional loss.  There was no varus or valgus instability or laxity seen on examination; nor was there any limitation due to fatigue or incoordination.  

On VA examination in April 2008, the Veteran's bilateral knee range of motion was from zero to 130 degrees, with pain at 80 degrees.  There was no change after repetitive motion; nor was there any evidence of fatigue, weakness, lack of endurance, or incoordination.  There was no evidence of instability and clinical tests used to evaluate semilunar cartilage were negative.  

On VA examination in November 2010, the Veteran reported having increased pain and stiffness in his bilateral knees.  He denied experiencing giving way, instability, weakness, episodes of dislocation or subluxation, locking or effusions.  He also denied experiencing flare-ups.  Objective examination revealed crepitus and abnormal motion in the bilateral knees, with tenderness also noted on the left.  The Veteran was able to demonstrate left knee range of motion from zero to 110 degrees, with pain at 70 degrees, while his right knee range of motion was from zero to 115 degrees, with pain at 105 degrees.  There was no additional limitation after repetition.  

The Veteran was afforded a VA examination in August 2011 to evaluate his left knee disability.  At that time, the Veteran reported having flare-ups that occur when walking too far or with overuse.  On examination, the Veteran was able to demonstrate range of motion from zero to 130 degrees, with pain.  Repetitive motion did not reveal a change in range of motion.  The VA examiner stated that the Veteran's functional loss or impairment includes less movement than normal and pain on movement.  There was tenderness to palpation of the joint line.  Muscle strength was intact bilaterally and joint stability tests were grossly normal.  

VA treatment records show the Veteran occasionally uses a brace on his left knee.  See treatment records dated August 2002 and July 2009.  VA treatment records also show that the Veteran's bilateral knee symptoms are intermittent and fluctuate in severity.  In October 2006, there was tenderness medially in the bilateral knees, with no evidence of synovitis or effusion.  In July 2009, the Veteran reported having left knee pain, which was worse with walking.  Objective examination did not reveal evidence of swelling, but there was tenderness to the medial aspect of the knee and decreased range of motion secondary to pain.  Ligament testing revealed intact and stable ligaments.  In August 2010, the Veteran had full range of motion in the left knee, with tenderness to palpation.  

Based on the foregoing, the Board finds that the preponderance of the evidence shows that the Veteran's service-connected left and right knee disabilities are manifested by degenerative joint disease (arthritis), which result in limitation of flexion and extension due to pain.  

In evaluating the Veteran's bilateral knees under DC 5010/5260 based on limitation of motion, the evidence shows that the Veteran's range of motion in flexion is limited to no less than 115 degrees on the right and 100 degrees on the left.  See VA examination reports dated December 2002 and November 2010.  Even with consideration of pain, the evidence shows that the Veteran's range of motion in flexion is limited to no less than 70 degrees on the left and 80 degrees on the right.  See VA examination reports dated April 2008 and November 2010.  There is no evidence showing the Veteran's range of motion in flexion is limited to 30 degrees or less.  As such, a rating higher than 10 percent is not warranted for the right or left knee disability under DC 5260.  

In addition to the foregoing, the evidence shows that the Veteran has consistently demonstrated normal extension to zero degrees in his left and right knees.  Nevertheless, in December 2002, the Veteran demonstrated limited range of motion in extension to 5 degrees in the right knee and 10 degrees in the left knee, which warrant zero and 10 percent disability ratings under DC 5261, respectively.  However, even when considering the Veteran's complaints of pain, there is no lay or medical evidence showing the Veteran's right or left knee is limited to more than 15 degrees in extension to warrant a rating higher than 10 percent under DC 5261.  See 38 C.F.R. §§ 4.40, 4.45 and Deluca, supra.  

In making this determination, the Board notes that the December 2002 VA examiner estimated an additional 30 percent decrease in range of motion during flare-ups.  While this evidence suggests that a higher rating may be granted based upon additional functional limitation due to pain, the Board notes that the examiner did not express the additional loss in terms of degrees and, thus, the Board is unable to determine to what degree the Veteran's bilateral knee motion would be limited during flare-ups.  The Board again notes that the findings of the December 2002 VA examination are inconsistent with the preponderance of the evidence of record, which shows normal range of motion in extension in the bilateral knees, even with reports of pain and flare-ups.  See 38 C.F.R. §§ 4.40, 4.45 and Deluca, supra.  

Therefore, based on the foregoing, the Board finds that the preponderance of the evidence does not support a higher, 20 percent rating for right or left knee arthritis manifested by limitation of flexion.  Indeed, even when considering the Veteran's additional functional limitation due to pain, the preponderance of the evidence does not reflect that his flexion is limited to 30 degrees or less or that his extension is limited to 15 degrees or less.  See 38 C.F.R. §§ 4.40, 4.45 and Deluca, supra.  
In addition to the foregoing, the evidence does not show that the Veteran's service-connected left and right knee disabilities involves two or more major or minor joints, as each service-connected disability only involves one major joint, i.e., the knee joint.  See 38 C.F.R. § 4.45(f).  Therefore, a rating higher than 10 percent for the Veteran's service-connected left and right knee disabilities is not warranted.  

VA's General Counsel has determined that separate ratings may be assigned for arthritis under DC 5003 and for subluxation or instability under DC 5257 without constituting pyramiding, as long as the separate rating is based on additional disability.  VAOPGCPREC 23-97 (July 1, 1997), 62 Fed. Reg. 63604 (1997).  When a rating has been assigned under DC 5257, to warrant a separate rating for arthritis established by x-ray, the limitation of motion need not be compensable under DC 5260 or 5261.  

With respect to instability, the evidence shows that the Veteran uses a left knee brace occasionally and, in September 2005, he reported having giving way occasionally in his left knee.  Otherwise, however, the Veteran has consistently denied experiencing giving way, instability, or subluxation in his knee joints.  See VA examination reports dated September 2005 and November 2010.  In December 2001, there was some objective evidence of varus laxity and pseudo laxity medially, but the physician stated there was no anterior, posterior, or rotary instability of the knees.  There is no other objective evidence of instability, as the preponderance of the evidence does not contain any objective clinical or radiographic evidence of instability or subluxation in the left or right knee joints.  

Based on the foregoing, particularly the evidence showing that the Veteran requires the use of a knee brace on his left knee and the lay evidence of occasional giving way in the left knee, the Board finds that the service-connected left knee disability is manifested by slight instability.  In making this determination, the Board notes that the Veteran is competent to provide evidence regarding symptoms capable of lay observation, including instability in the left knee joint.  See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002).  The Veteran's report of such is considered credible, as the evidence shows that he wears a brace on his left knee.  However, the lack of objective clinical evidence in this regard preponderates against a finding that the Veteran's left knee instability is more than mild, as moderate and severe subluxation or instability would likely result in objective evidence which would be documented on clinical examination, in addition to subjective complaints and radiographic evidence of such.  Therefore, the Board finds that a separate 10 percent rating, but no higher, is warranted for left knee instability under DC 5257.  

Despite the foregoing, the preponderance of the evidence is against a finding that the Veteran's service-connected right knee disability is manifested by instability.  In making this determination, the Board notes there is no lay or medical evidence of instability or giving way at any point during the appeal period and there is no evidence that the Veteran requires the use of a brace on his right knee.  Therefore, a separate rating for instability is not warranted under DC 5257 for the service-connected right knee disability.  

In an effort to afford the Veteran the highest possible rating, the Board has considered his left and right knee disabilities under all other potentially applicable diagnostic codes.  However, the evidence does not show that the Veteran experiences ankylosis in his bilateral knee joints, as he is able to demonstrate movement in his left and right knee joints, albeit limited.  In addition, the evidence does not show that the Veteran suffers from dislocated or removed semilunar cartilage in either knee joint, as ligament tests have been consistently negative throughout the pendency of this appeal.  In addition, there is no evidence that the Veteran's left and right knee disabilities are manifested by an impairment of the tibia or fibula or genu recurvatum.  Therefore DCs 5256, 5258, 5259, 5262, and 5263 are not for application in this case.  

The preponderance of the pertinent evidence does not reflect that the Veteran has a scar or neurological impairment associated with his service-connected left and right knee disabilities.  Therefore, separate ratings cannot be assigned based upon any such symptoms or disability.  

The Board has considered whether the left and right knee disabilities should be referred for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1).   See Thun, supra.  In this appeal, however, the manifestations of the Veteran's left and right knee disabilities are fully contemplated by the schedular rating criteria.  Indeed, the Veteran's symptoms of instability and decreased, painful knee motion are contemplated by the disability ratings assigned herein, and there has been no showing that the Veteran's disability picture is not contemplated adequately by the rating criteria discussed above.  As such, the rating criteria reasonably describe the Veteran's disability level and symptomatology associated with his left and right knee disabilities, and the rating schedule is adequate to evaluate the disability picture associated with each disability.   Therefore, it is unnecessary to discuss the second prong, i.e., whether there are related factors such as marked interference with employment or frequent periods of hospitalization.  See id.  However, the Board notes that the Veteran has not been hospitilzied for his bilateral knee disabilites at any time during the course of the appeal.  Further, the percentage ratings are considered adequate to compensate for considerable loss of working time from exacerbations proportionate to the severity of the several grades of disability.  38 C.F.R. § 4.1.  As such, referral for consideration of an extra-schedular rating is not necessary.  See Thun, 22 Vet. App. at 115-16.  

In summary, and for the reasons and bases set forth above, the Board finds that the preponderance of the evidence is against the grant of a disability rating higher than 10 percent for service-connected left knee patellofemoral crepitance, with degenerative changes, and right knee internal derangement with degenerative changes.  However, the preponderance of the evidence supports a finding that the Veteran's service-connected left knee warrants a separate 10 percent disability rating, but no higher, based upon slight instability.  The lay and medical evidence of record has been consistent throughout the pendency of this appeal with respect to the severity of the Veteran's service-connected left and right knee disabilities and, thus, staged rating are not warranted.  In making this determination, all reasonable doubt has been resolved in the Veteran's favor.  See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Final Considerations

The Board has also considered whether a claim for a TDIU has been raised.  When evidence of unemployability is submitted during the course of an appeal from a rating assigned for a disability, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability.  Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). 

In this case, the evidence shows that the Veteran last worked in 1992 when he was in the Army National Guard.  See VA examination reports.  The Veteran has not alleged that he is unable to work due to his service-connected disabilities and the evidence does not show that he is unable to secure or follow a substantially gainful employment as a result of his service-connected disabilities.  In this regard, the evidence of record shows that the Veteran's service-connected bilateral shoulder and knee disabilities impact his ability to conduct occupational activities due to decreased mobility, problems with lifting things, and pain; however, VA physicians have consistently noted that the Veteran's service-connected bilateral shoulder and knee disabilities do not prevent him from securing or maintain sedentary employment, such as a desk job or a clerk, that does not involve walking or standing for long periods of time or heavy lifting.  See VA examination reports dated August 2011 and November 2010; see also VA examination reports darted April 200, June 2005, and April 2008.  Therefore, the Board finds that any affect the Veteran's left and right knee disabilities have on his employment is contemplated by disability ratings currently assigned and do not render him unable to secure or follow a substantially gainful employment.  As such, further discussion of a TDIU is not necessary.  



ORDER

New and material evidence having been received, the appeal to reopen a claim of entitlement to service connection for residuals of a chest injury is granted.  

Entitlement to an initial disability rating higher than 20 percent for service-connected residuals of right rotator cuff tear is denied.

Entitlement to a rating in excess of 40 percent for service-connected residuals of right rotator cuff tear is denied.  

A separate, noncompensable disability rating is warranted for the scar associated with service-connected residuals of right rotator cuff tear.  

Entitlement to an initial disability rating higher than 20 percent for service-connected left shoulder adhesive capsulitis is denied.

Entitlement to a rating in excess of 40 percent for service-connected left shoulder adhesive capsulitis denied.  

Entitlement to an initial disability rating higher than 10 percent for service-connected left knee patellofemoral crepitance, with degenerative changes, is denied.  

A separate 10 percent disability rating for slight instability of the left knee is granted.  

Entitlement to an initial disability rating higher than 10 percent for service-connected right knee internal derangement with degenerative changes is denied.  


REMAND

Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claims so that he is afforded every possible consideration.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Board finds that additional evidentiary is needed with respect to obtaining a medical examination/opinions regarding the Veteran's claimed disabilities.  

VA's duty to assist also includes obtaining a VA examination or opinion if it is necessary to decide a claim, including if the record does not contain sufficient competent medical evidence to decide the claim, but there is competent evidence of a current disability or persistent or recurrent symptoms of a disability, the record establishes that the Veteran suffered an event, injury, or disease in service, and the record indicates that a disability or signs or symptoms of disability may be associated with the established event, injury, or disease in service.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

As to the reopened claim of service connection for residuals of chest injury, the evidence of record indicates that the Veteran's current chest pain may be related to his service-connected right shoulder disability.  Indeed, the treatment records show that the Veteran has consistently reported having chest pain since the injury to his right shoulder in 1992, which has been diagnosed as angina and deemed non-cardiac in nature.  See February 2002 psychological evaluation from Dr. A.M.; August 2003 private treatment record; VA treatment records dated March 2003, April 2005.  Notably, in April 2010, the Veteran's treating physician noted that the Veteran's chest pain is related to his right shoulder injury.  

While a great deal of the evidence relates the Veteran's chest pain to his right shoulder disability, the Veteran also reported having chest pain following use of his left upper extremity in August 1997.  See August 1997 report from Dr. C.J.  

Despite the foregoing evidence, the Veteran has not been afforded a VA examination to determine if his current chest pain/ angina is secondary to his service-connected right or left shoulder disabilities, and the evidentiary record does not, otherwise, contain a medical opinion that is supported by a complete rationale and addresses whether the Veteran's angina is caused or aggravated by his service-connected shoulder disabilities.  

Therefore, a VA examination is needed to obtain a medical opinion that addresses whether the Veteran's angina, i.e., chest pain, is caused by or aggravated by his service-connected right or left shoulder disabilities.  See McLendon, supra.  

In addition to the foregoing, the Board finds that additional development is needed with respect to the Veteran's low back and cervical spine claims.  The Veteran, through his attorney, has argued that his low back and cervical spine disabilities may be secondary to his service-connected bilateral shoulder and knee disabilities.  See February 2003 statement from Attorney.  In this regard, the evidence of record indicates that there may be a relationship between the Veteran's bilateral shoulder condition and his neck pain, as the evidence shows that his bilateral shoulder pain radiates up to his neck.  See March 2006 VA outpatient treatment record.  The evidence also indicates that there may be a relationship between the Veteran's bilateral knee disabilities and his current lumbar spine disability, as the evidence shows that the Veteran has left knee degenerative joint disease with L5-S1 radicular contribution.  See September 2010 VA treatment record.  

The evidentiary record contains a medical opinion that addresses whether the Veteran's current low back and cervical spine disabilities are related to his military service.  See October 2012 VA examination report.  There is, however, no medical opinion of record that addresses whether the low back and cervical spine disabilities are caused by or aggravated by his service-connected disabilities.  Therefore, the Board finds that an addendum is needed which addresses whether the Veteran's current low back and cervical spine disabilities are secondary to his service-connected disabilities.  

Accordingly, the case is REMANDED for the following action:

1. Schedule the Veteran for VA examination to determine if he currently has a residual chest disability, to include angina, that is related to his service-connected left and right shoulder disabilities.   All indicated examinations, tests, and studies should be conducted, and all findings described in detail.  The claims file must be made available to the examiner for review, and the examination report should reflect that such review is accomplished.  
	
a. A diagnosis of any current residual chest disability should be made.  The examiner should also confirm if the Veteran as a current diagnosis of angina, as reflected in an April 2005 VA treatment record.  

b. The examiner should render an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent) that any current residual chest disability, including angina, is proximately due to or a result of service-connected right or left shoulder disabilities.  

c. The examiner must also offer an opinion as to whether it is at least as likely as not that the Veteran's current residual chest disability, to include angina, is aggravated by service-connected right or left shoulder disabilities.  

In answering the foregoing, the examiner should consider the March 2006 VA outpatient treatment record which shows that the Veteran's bilateral shoulder pain radiates up to his neck.  

Note:  The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability.

d. A rationale must be provided for each opinion offered.  If the foregoing questions cannot be answered on a medical or scientific basis and without invoking processes relating to guesses or judgment based upon mere conjecture, the examiner should clearly and specifically so specify in the report, and explain why this is so.

2. Ask that the physician who conducted the October 2012 VA examinations review the claims file, including this remand, and provide an addendum that addresses the following:

a. The examiner should render an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent) that any current lumbar or cervical spine disability is proximately due to or a result of service-connected right or left shoulder or bilateral knee disabilities.  

b. The examiner must also offer an opinion as to whether it is at least as likely as not that the Veteran's current lumbar or cervical spine disability is aggravated by service-connected right or left shoulder or bilateral knee disabilities.  

c. An opinion must be provided with respect to causation and aggravation for the lumbar and cervical spine disabilities.  

d. In answering the foregoing, the examiner should consider the September 2010 VA treatment record which shows that the Veteran's left knee degenerative joint disease has some L5-S1 involvement.  

e. A rationale must be provided for any opinion offered.  

4.	After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence.  If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case.  An appropriate period of time should be allowed for response.

Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order.  The Board intimates no opinion as to the outcome of this case.  The Veteran need take no action until so informed.  The purpose of this REMAND is to ensure compliance with due process considerations.

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).  

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board 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).




______________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs