Citation Nr: 1330501 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 09-36 594 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for posttraumatic arthritis of the right knee, status post right lateral meniscectomy, for the period from August 17, 2007, to April 21, 2012. 2. Entitlement to an evaluation in excess of 40 percent for posttraumatic arthritis of the right knee, status post right lateral meniscectomy, for the period on or after April 21, 2012. 3. Entitlement to service connection for a respiratory disorder, to include as due to asbestos and herbicide exposure. 4. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD M. Postek, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1964 to October 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. During the pendency of the appeal, the RO, in a September 2009 rating decision implementing a decision in the statement of the case (SOC) from that same month, increased the evaluation for the Veteran's right knee disability to 10 percent (originally evaluated as postoperative residuals, right lateral meniscectomy, now evaluated as stated in the issue above under Diagnostic Codes 5010-5259) effective from August 17, 2007. Thereafter, the RO, in a June 2012 rating decision implementing a decision in a supplemental SOC (SSOC) from the previous month, increased the evaluation to 40 percent (Diagnostic Codes 5010-5261) effective from April 21, 2012. While the Veteran has been granted these increased evaluations, these ratings do not represent the highest possible benefit, and therefore, these issues remain in appellate status and have been recharacterized accordingly. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The June 2012 rating decision also granted the Veteran's claim of entitlement to service connection for posttraumatic stress disorder (PTSD). As this represents a full grant of this benefit sought on appeal, this matter is no longer before the Board for consideration. The Board remanded the case for further development in August 2012, and the case has since been returned to the Board for appellate review. A review of the Virtual VA and VBMS electronic claims files reveals additional evidence of the Veteran's ongoing VA treatment for multiple disorders, including complaints of chronic right knee pain, which were added to the record in response to the Board's remand. It is unclear from the record if the AOJ electronically reviewed this evidence in relation to the issue being decided herein. See May 2012 SSOC (most recent readjudication of the right knee issues). A waiver from the Veteran in relation to this issue is not of record; however, the AOJ did consider the findings of the April 2012 VA examination at that time in determining the effective date of the increased rating. Moreover, these additional records do not show a permanent increase in severity of symptoms for the time period reviewed in this decision so as to suggest a different outcome to the case. Thus, such evidence does not materially alter the outcome of the case and is not pertinent to the issue on appeal (i.e., does not have a bearing on the outcome of the appellate issue). As such, the Board finds that remand for initial AOJ review of these records is not necessary, and there is no prejudice in proceeding with consideration of the evidence in the Virtual VA file. The Board notes that the status of the Veteran's PTSD claim has been raised by the record, but is not properly before the Board. Specifically, in a January 2013 written submission (within the year following the June 2012 rating decision granting service connection), he indicated that ". . .[I]t is the PTSD I appeal." The Board finds that the Veteran's intent in regard to this statement, even reviewing it in the light most favorable to him and in conjunction with the remainder of the record, is unclear and does not permit the Board to construe such a statement as a notice of disagreement with an aspect of the rating decision, which would put the matter in appellate status. Therefore, the Board does not have jurisdiction over this matter, and it is referred to the AOJ for appropriate action. The issues of entitlement to an evaluation in excess of 40 percent for posttraumatic arthritis of the right knee, status post right lateral meniscectomy, for the period on or after April 21, 2012, entitlement to service connection for a respiratory disorder, and entitlement to a TDIU 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. For the period from August 17, 2007, to April 21, 2012, the Veteran's posttraumatic arthritis of the right knee, status post right lateral meniscectomy is characterized by x-ray evidence of arthritis and productive of painful motion, but not productive of ankylosis, actual or functional flexion limited to 45 degrees, actual or functional extension limited to 10 degrees, recurrent subluxation or lateral instability, dislocated cartilage with frequent episodes of locking, pain, and effusion into the joint, impairment of the tibia and fibula, or genu recurvatum. 2. For the period from August 17, 2007, to April 21, 2012, the Veteran continued to experience residual symptoms as a result of the lateral meniscectomy surgery performed during service. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for posttraumatic arthritis of the right knee, status post right lateral meniscectomy have not been met for the period from August 17, 2007 to April 21, 2012. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Codes 5003, 5010 (2012). 2. The criteria for a separate 10 percent evaluation for the symptomatic removal of semilunar cartilage in the right knee have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Code 5259 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO provided the Veteran with a notification letter in October 2007, prior to the initial decision on the claim in October 2008, as well as in March 2009. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. The October 2007 notice letter notified the Veteran that, to substantiate a claim for increased compensation, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Both the October 2007 and March 2009 letters provided examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) relevant to establishing entitlement to increased compensation. Specifically, he was informed between both notice letters of types of evidence that might show such a worsening, including information about ongoing treatment, Social Security Administration determinations, statements from employers, and lay statements from people who have witnessed how the disability symptoms affect him. In addition, the October 2007 notice letter informed the Veteran of the division of responsibilities in obtaining the evidence to support his claim. Both letters also explained how disability ratings are determined, and the initial October 2007 letter also explained how effective dates are determined. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available VA medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claim. To the extent that it is unclear if the RO reviewed all of the VA treatment records in Virtual VA, the Board has determined that a decision on this appeal is not prejudicial to the Veteran, for detailed reasons discussed above. He has not identified any available, outstanding records that are relevant to the claim decided herein. Moreover, the record includes written statements provided by the Veteran. The Veteran was also afforded a VA examination in November 2007 in connection with his current claim being decided herein. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination in this case is adequate, as it is predicated on a review of the Veteran's medical history as well as on an examination, and adequately addresses the rating criteria that are relevant to rating the disability in this case. The Board does observe that it is unclear if the examiner reviewed the claims file; however, the examiner did review the Veteran's own medical history and complaints and performed a physical examination that addressed the rating criteria. Indeed, the Court has held that the relevant focus is not on whether a clinician had access to the claims file, but instead on whether the clinician was "informed of the relevant facts" in rendering a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Thus, there is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). VA has further assisted the Veteran throughout the course of this appeal by providing him with an SOC and SSOC, which informed him of the laws and regulations relevant to his claim. The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Law and Analysis 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 rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, as is the case here, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ("staged") ratings may be assigned for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). In this case, as explained below, a uniform rating is warranted. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. The VA Office of General Counsel has provided guidance concerning increased rating claims for knee disorders. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). VA General Counsel has stated that compensating a claimant for separate functional impairment under Diagnostic Code 5257 and 5003 does not constitute pyramiding. See VAOPGCPREC 23-97 (July 1, 1997). VA General Counsel held in VAOPGCPREC 23-97 that a veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, provided that a separate rating must be based upon additional disability. When a knee disorder is already rated under Diagnostic Code 5257, the veteran must also have limitation of motion under Diagnostic Code 5260 or 5261 in order to obtain a separate rating for arthritis. If the veteran does not at least meet the criteria for a zero percent rating under either of those codes, there is no additional disability for which a rating may be assigned. In VAOPGCPREC 9-98 (Aug. 14, 1998), VA General Counsel also held that if a veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also x-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. In addition, VA General Counsel considered a hypothetical situation in which a knee disability was evaluated under Diagnostic Code 5259 that was productive of pain, tenderness, friction, osteoarthritis established by x-rays, and a slight loss of motion. For the purposes of the hypothetical, it was assumed that Diagnostic Code 5259 did not involve limitation of motion. Given the findings of osteoarthritis, the General Counsel stated that the availability of a separate evaluation under Diagnostic Code 5003 in light of sections 4.40, 4.45, 4.59 must be considered. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Absent x-ray findings of arthritis, limitation of motion should be considered under Diagnostic Codes 5260 and 5261. The claimant's painful motion may add to the actual limitation of motion so as to warrant a rating under Diagnostic Codes 5260 or 5261. VA General Counsel further noted in VAOPGCPREC 9-98 that the removal of the semilunar cartilage may involve restriction of movement caused by tears and displacements of the menisci, but that the procedure may result in complications such as reflex sympathetic dystrophy, which can produce loss of motion. Therefore, limitation of motion is a relevant consideration under Diagnostic Code 5259, and the provisions of 4.40, 4.45, and 4.59 must be considered. In addition, the VA General Counsel has held that separate ratings may be assigned under DC 5260 and DC 5261 for disability of the same joint. VAOPGCPREC 9-2004 (September 17, 2004). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case, and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran contends that he is entitled to a higher rating for his service-connected posttraumatic arthritis of the right knee, status post right lateral meniscectomy, which is assigned a 10 percent evaluation for the period from August 17, 2007, to April 21, 2012, pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5259. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Diagnostic Code 5010 for traumatic arthritis indicates that the disorder is rated as degenerative arthritis under Diagnostic Code 5003. In this case, this evaluation assigned indicates that the disability was rated as analogous to the symptomatic removal of semilunar cartilage in the right knee. See Diagnostic Codes 5003, 5010, 5259; 38 C.F.R. § 4.59. Diagnostic Code 5003 states that the severity of degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved, which in this case would be Diagnostic Codes 5260 and 5261 (limitation of flexion and extension of the leg). When limitation of motion of the specific joint(s) is present, but noncompensable under the appropriate diagnostic codes, a 10 percent rating is for application for each affected major joint or group of minor joints. 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 10 percent evaluation is warranted with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, and a 20 percent evaluation is warranted with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. For the purpose of rating disability from arthritis, the knee is a major joint. 38 C.F.R. § 4.45(f). Under Diagnostic Code 5259, a 10 percent rating is warranted for symptomatic removal of semilunar cartilage. Under Diagnostic Code 5260, limitation of flexion of the leg warrants a noncompensable rating when flexion is limited to 60 degrees; a 10 percent rating when limited to 45 degrees; a 20 percent rating when limited to 30 degrees; and a 30 percent rating when limited to 15 degrees. Under Diagnostic Code 5261, limitation of extension of the leg warrants a noncompensable rating when extension is limited to 5 degrees; a 10 percent rating when limited to 10 degrees; a 20 percent rating when limited to 15 degrees; a 30 percent rating when limited to 20 degrees; a 40 percent rating when limited to 30 degrees; and a 50 percent rating when limited to 45 degrees. For VA compensation purposes, the normal range of motion of the knee is 140 degrees of flexion and 0 degrees of extension. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted when such impairment is moderate, and a 30 percent rating is warranted for severe impairment. Under Diagnostic Code 5258, a 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. In addition, the words "mild," "moderate," and "severe" are not defined in the VA rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Historically, the Veteran injured his right knee during service and underwent a lateral meniscectomy in May 1969 following symptoms and findings suggestive of a lateral meniscus tear. VA treatment records beginning in 2006 show that the Veteran has complained of chronic problems in his right knee, to include pain. In his August 2007 claim, the Veteran stated that he had a "bad right leg" without further description. Parenthetically, the Board notes that the Veteran reported that he had not seen a doctor in over twenty years prior to the fall of 2006 at which time he sought VA treatment for pains in his left arm, neck, and chest. See December 2008 written statement; see also VA treatment records beginning in November 2006. The Veteran was afforded a VA examination in November 2007 during which he complained of symptoms including giving way, instability, pain, weakness, and locking (1-3 times per month), but no stiffness or episodes of dislocation or subluxation. He reported flare-ups every one to two months lasting one to two days. He reported that he had minimal activity during flare-ups. He also reported that he was unable to stand more than 15-30 minutes. No history of hospitalization was noted except for the in-service knee surgery. On physical examination, his gait was normal with no evidence of abnormal weight bearing. Range of motion testing revealed 120 degrees of flexion with painful movement, and there was also no additional limitation of motion on repetitive use. There was no ankylosis, inflammatory arthritis, crepitation, clicks or snaps, grinding, instability, or patellar or meniscus abnormality. Review of an x-ray report taken that day revealed mild degenerative arthritic disease. The diagnosis was posttraumatic arthritis of the right knee. During a June 2008 VA feet examination for another claim, there was no objective evidence of instability on physical examination of the right and left feet. The Veteran reported functional limitations of walking 1/4 of a mile and standing 15-30 minutes. On physical examination, there was no antalgic gait noted. During a June 2008 VA general examination for another claim, the examiner noted that the Veteran had not worked in twenty years and quit his truck driving job in part because of his right knee. The examiner noted that the Veteran was capable of a sedentary, solitary occupation. In a written statement submitted with the September 2009 substantive appeal (VA Form 9), the Veteran noted symptoms related to his right knee, to include pain, occasional locking, and arthritis, as well as his difficulty walking more than 1/4 mile and standing for extended periods due to the pain. The Board notes as a clarifying point that the Veteran was given a VA examination in April 2012 on the basis of his appeal. See April 2012 RO letter to Veteran. The results of that examination resulted in the Veteran's increased evaluation to 40 percent effective from the date of the examination and no earlier, reclassified under Diagnostic Codes 5010-5261 for limitation of extension of the leg. This part of the appeal is being remanded, as discussed below, and this evidence is accordingly not considered in the discussion of this issue. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to an increased rating for posttraumatic arthritis of the right knee, status post right lateral meniscectomy, for the period from August 17, 2007, to April 21, 2012. Specifically, he is entitled to separate 10 percent ratings under Diagnostic Codes 5010 and 5259. As a preliminary matter, the Board notes that the Veteran is currently assigned a 10 percent rating under Diagnostic Code 5010, which contemplates arthritis and painful motion. There is no x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Thus, an increased evaluation is not warranted under Diagnostic Code 5010. The Board also finds that the Veteran is not entitled to higher evaluations under Diagnostic Codes 5260 or 5261 for limitation of flexion or extension. The record does not show that flexion is limited to 30 degrees or that extension is limited to 15 degrees for the appeal period to warrant a higher disability rating under these criteria. In fact, the November 2007 VA examination reveals that flexion was to 120 degrees with no additional limitation of motion on repetitive testing, which corresponds to the criteria for a noncompensable rating. As such, the current rating assigned contemplates the Veteran's symptomatology of painful motion, and rating under these diagnostic codes is not appropriate in this case. Nevertheless, the Board does find that the Veteran is entitled to a separate 10 percent rating for the symptomatic removal of semilunar cartilage under Diagnostic Code 5259, which is the maximum schedular rating available under this diagnostic code. The Veteran underwent a right knee meniscectomy during service, and the Board notes that semilunar cartilage is one of the menisci of the knee joint. Stedman's Medical Dictionary 296 (27th ed., 2000). During the November 2007 VA examination, functional limitations were also noted to include limitation on time for standing, as well as weakness and intermittent locking of the right knee joint. The Board finds that this symptomatology constitutes separate functional impairment which warrants the assignment of this additional rating. Thus, the Veteran is entitled to a 10 percent rating under Diagnostic Code 5010 and a 10 percent rating under Diagnostic Code 5259. The Board has considered whether a higher or separate evaluation is warranted under any other Diagnostic Code. However, as the evidence of record does not demonstrate that the Veteran has ankylosis of the right knee, dislocated semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum, he is not entitled to higher evaluations under Diagnostic Codes 5256, 5258, 5262, and 5263. There is simply no evidence of such manifestations. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (internal medical dictionary citation omitted). Based on the aforementioned range of motion findings, the record shows that the Veteran's right knee is not fixated or immobile. The November 2007 VA examiner also specifically noted that there was no ankylosis or patellar or meniscus abnormality, and the Veteran denied a history of dislocation. In regards to other impairment of the knee under Diagnostic Code 5257, the Board finds that the assignment of such an evaluation for recurrent subluxation or lateral instability is not warranted. In this regard, the Veteran denied episodes of subluxation during the November 2007 VA examination, and there is no record to suggest that such was found on examination. The Veteran did report instability and giving way during the examination, but he did not provide any specific incidents of falls. Moreover, he later reported in a January 2013 written statement that his right knee "now" gave way if he took a misstep, thereby suggesting a more recent onset which contradicts his earlier report in 2007. In addition, instability was not demonstrated found during the November 2007 VA examination. Thus, a physical examination performed by a medical professional provided affirmative evidence that there was no instability. While the Veteran is certainly competent to report experiencing symptoms such as knee instability, the Board finds that the preponderance of the evidence weighs against a finding that the Veteran had lateral instability prior to April 21, 2012. Therefore, the Board concludes that a separate evaluation under Diagnostic Code 5257 is not warranted. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an increased evaluation for the Veteran's right knee disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the two assigned 10 percent evaluations, and no higher. In this regard, the Board observes that the Veteran complained of pain on numerous occasions. However, the effect of the pain in the Veteran's right knee is already contemplated in the assigned evaluations. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation beyond those already assigned. Indeed, even when considering the effect of the Veteran's pain and other functional loss, he is still had range of motion following repetitive use of flexion to 120 degrees. Based on the foregoing, the Board finds that the Veteran is entitled to separate 10 percent evaluations under Diagnostic Codes 5010 and 5259 for his right knee disability from August 17, 2007, to April 21, 2012, and his appeal is granted to that extent. However, the preponderance of the evidence is against a higher or separate evaluation for the right knee disability under the remaining diagnostic codes, as discussed above. In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veteran's right knee disability is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id.; see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1) ) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned ratings with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Veteran's chief complaints of pain on motion, to include as due to traumatic arthritis, and residual complications from his in-service surgery are fully considered in the assignment of the two separate 10 percent disability ratings. As discussed above, there are higher ratings available under the diagnostic codes, but the Veteran's disability is not productive of such manifestations. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected right knee disability under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). ORDER Entitlement to an evaluation in excess of 10 percent for posttraumatic arthritis of the right knee, status post right lateral meniscectomy, for the period from August 17, 2007, to April 21, 2012, is denied. Entitlement to a separate evaluation of 10 percent for the symptomatic removal of semilunar cartilage in the right knee is granted for the period from August 17, 2007, to April 21, 2012, subject to the laws and regulations governing the payment of monetary benefits. REMAND The Board finds that further development is necessary prior to the final adjudication of the Veteran's remaining claims. Respiratory Disorder In regard to the claim of entitlement to service connection for a respiratory disorder, the Veteran has offered three causal theories related to service for his currently diagnosed chronic obstructive pulmonary disorder (COPD) - asbestos exposure, herbicide exposure, and chemical cleaner exposure. See, e.g., October 2007 written statement; September 2009 written statement with VA Form 9; January 2013 written statement; May 2013 VA examination statements. In regard to the claimed asbestos exposure, the Veteran essentially contends that he may have been exposed to asbestos while performing temporary duty while assigned to the USS Claud Jones. He indicated that he guarded "mothballed" ships in drydock and that other crew members removed parts, such as insulated piping, while he stood guard. See January 2013 written statement; May 2013 statements (clarifying that he stood guard while accompanying others removing the piping). The Board notes that there are no statutes specifically dealing with asbestos and service connection for asbestos related diseases, and VA has not promulgated any specific regulations. However, VA has provided guidance for considering asbestos compensation claims. See VA Adjudication Procedures Manual Rewrite (M21-1MR), IV.ii.2.C.9; VAOPGCPREC 4-2000 (April 13, 2000). VA has acknowledged a relationship exists between asbestos exposure and the development of certain diseases, which may occur 10 to 45 years after exposure. See M21-1MR.IV.ii.2.C.9.c-d. When considering VA compensation claims, rating boards have the responsibility to ascertain whether or not service records demonstrate evidence of asbestos exposure in service and of ensuring that development is accomplished to determine whether or not there was pre-service and/or post-service evidence of occupational or other asbestos exposure. A determination must then be made as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information noted above. It should be noted that the pertinent parts of the M21-1MR guidelines of service connection in asbestos-related cases are not substantive rules, and there is no presumption that a veteran was exposed to asbestos in-service. Dyment v. West, 13 Vet. App. 141, 145 (1999), aff'd, Dyment v. Principi, 287 F. 3d 1377 (Fed. Cir. 2002); VAOPGCPREC 4-2000. In the August 2012 remand, the Board instructed the RO/AMC to "attempt to obtain service department verification and/or records [addressing] whether asbestos removal operations were performed on mothballed ships at Pearl Harbor during the interval of the Veteran's period of active service from January 1964 through October 1969." Such a request was made, but a negative reply was received from the Naval Sea Systems Command in March 2013. In his January 2013 statement, the Veteran specifically indicated that such service was likely performed for a six to eight week period beginning in April 1967 or May 1967. A review of the Veteran's available service personnel records shows that the Veteran was indeed assigned to the USS Claud Jones from May 10 to mid-August of 1967; however, these records do not indicate a temporary duty assignment or any further duty details. A June 2013 printout (3101) shows that the AMC confirmed that the Veteran's remaining service personnel records remained unavailable, as initially determined in an April 2008 request to the National Personnel Records Center (NPRC). The Board recognizes the AOJ's development efforts in this case to date. However, in light of the unavailability of the Veteran's complete service personnel records and the identification of a specific date range for the alleged asbestos exposure, as well as consideration of the development requested as a result of the Board's previous remand, the Board finds that an additional attempt to verify asbestos exposure should be made prior to final adjudication of the claim. As previously noted, the Veteran has also asserted that his current respiratory disorder may be attributable to in-service duties involving use of chemical cleaners in unventilated compartments. See October 2007 written statement. It does not appear that the VA respiratory examinations of record have addressed this assertion. As such, the Board finds that a clarifying medical opinion is necessary in this regard. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (where VA provides an examination in a service connection claim, the examination and corresponding report must be adequate). TDIU The Board also finds that the issue of TDIU has been raised by the record. In this regard, the Veteran has asserted that his PTSD and right knee symptomatology impacts his ability to work and essentially renders him unemployable. See, e.g., June 2008 general VA examination report; January and July 2013 written statements. Moreover, in the June 2012 rating decision discussed above, the RO deferred decision on the issue of entitlement to a TDIU for VCAA development. A review of the record before the Board indicates that such development has not been undertaken to date. As such, the RO/AMC should develop a claim for TDIU in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009) (if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a TDIU as a result of that disability is warranted). Right Knee In regard to the claim for an increased evaluation for the right knee disability for the period on or after April 21, 2012, the Veteran was afforded a VA examination in May 2013 pursuant to the Board's remand. A review of the record indicates that, while a July 2013 SSOC was issued thereafter, the only issue discussed was service connection for a respiratory disorder. Moreover, a waiver from the Veteran as to the RO's initial consideration of this evidence is not of record. In addition, a review of the VA treatment records in Virtual VA indicates that the Veteran was seen at JFK Memorial Hospital in September 2012 for unspecified reasons. However, a September 2012 VA treatment record shows that the records from that treatment were scanned into the VA database at the Prescott VA facility. As such, the RO/AMC should associate these records with the claims file if pertinent to the Veteran's claims. Updated VA treatment records should also be obtained. 38 U.S.C.A. § 5103A (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain any pertinent outstanding VA treatment records in relation to the Veteran's claims, to include the records of the Veteran's hospitalization at JFK Memorial Hospital in September 2012 (noted as attached to the Prescott VA treatment records in a September 2012 note) and VA treatment records dated from September 2012 to the present. 2. The RO/AMC should request verification of the Veteran's alleged in-service asbestos exposure from May to August 1967 while assigned to the USS Claud Jones and any related temporary duty assignment at that time, to include sending another request to the Naval Sea Systems Command and any other relevant Department of Defense office. A copy of the Veteran's available service personnel records should be included in the request, as well as his assertion that he may have been exposed to asbestos during this time period while guarding ships in drydock as part of a temporary duty assignment. 3. After completing the above action and any related indicated development, the RO/AMC should refer the Veteran's claims file to the July 2013 VA physician, or, if he is unavailable, to the May 2013 VA examiner or another suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of the Veteran's current respiratory disorder. The examiner is requested to review all pertinent records associated with the claims file. Specifically, the examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that a current respiratory disorder manifested in or otherwise related to service, to include his claimed exposure to chemicals while cleaning non-ventilated compartments onboard a ship, herbicide exposure, and asbestos exposure. In rendering this opinion, the examiner is asked to consider the findings of the previous VA examinations and opinions regarding in-service asbestos exposure and post-service factors (June 2008, May 2013, and July 2013), as well as any additional findings regarding the Veteran's claimed asbestos and herbicide exposure provided by the RO/AMC in the opinion request or otherwise observed in the claims file. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1), copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available for review. 4. The RO/AMC should consider whether the Veteran is entitled to TDIU under the provisions of 38 C.F.R. § 4.16, based on impairment attributable to his service-connected disorders, in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). In so doing, the RO/AMC may decide to pursue further development of the Veteran's employment history or to obtain additional medical evidence or medical opinion, as is deemed necessary. Any temporary file created by the RO/AMC for this issue should be associated with the claims file on remand. See July 2012 deferred rating decision noting possible temporary file creation. 5. After completing the above actions and any other development as may be indicated as a consequence of the action taken in the preceding paragraphs, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The 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 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). ______________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs