Citation Nr: 1334487	
Decision Date: 10/30/13    Archive Date: 11/06/13

DOCKET NO.  09-13 203	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUES

1.  Entitlement to service connection for a bilateral hip disability to include as secondary to the service connected osteoarthritis of the right knee.  

2.  Entitlement to service connection for a left knee disability.  

3.  Entitlement to service connection for a bilateral ankle disability.  

4.  Entitlement to service connection for a bilateral foot disability.  

5.  Entitlement to service connection for a skin disability of the hands and forearms.  

6.  Entitlement to service connection for allergic rhinitis.  

7.  Entitlement to service connection for a right ear disorder.  

8.  Entitlement to a rating higher than 10 percent disabling for status post right knee arthrotomy and medial meniscectomy from July 27, 2006 to September 27, 2010.  
9.  Entitlement to a rating higher than 10 percent disabling for osteoarthritis of the right knee from July 27, 2006 to October 31, 2011.  

10.  Entitlement to a rating higher than 30 percent for status post total right knee replacement since November 1. 2011.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

T. S. Willie, Counsel


INTRODUCTION

The Veteran served on active duty from June 1962 to May 1964.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California.

The Veteran was afforded a hearing before a Veterans Law Judge (VLJ) in September 2012.  A transcript of the hearing is of record.  

The Board notes that the Veteran also appealed the denial of service connection for lower back pain also claimed as secondary to the service connected osteoarthritis of the right knee.  In May 2012, however, the Veteran was granted service connection for disc degeneration with spondylosis of the lumbar spine.  As the benefit sought on appeal has been granted, this issue is no longer before the Board.  

The Veteran had a total knee replacement in September 2010.  A temporary total 100 percent rating was assigned from September 27, 2010 to November 1, 2011.  That rating or the time period is not at issue.  After the knee replacement a 30 percent rating was granted.  The dates reflected in the last three issues on the title page characterize the periods and ratings on appeal.

The issue concerning the bilateral hip disability has been characterized in terms of reopening a previously denied claim.  In July 2003 the claim was denied.  The Veteran subsequently disagreed and raised another issue.  He was informed that he had to submit additional evidence on the hip issue and did not.  He was not, however, at that time given a statement of the case.  The issue has since been further developed, and discussed both in terms of new and material evidence and direct and secondary service connection.  An opinion has been obtained.  As such, the Board will discuss the matter on the merits as there is no prejudice to the Veteran in doing so.  See Bernard v. Brown, 4. Vet. App. 384 (1993).

The issues of entitlement to service connection for a skin disability of the hands and forearms, allergic rhinitis, ankle, feet, and a right ear disorder 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.  Evidence of record reveals that the Veteran has osteopenia of the hips.  This was not shown in service, was first shown years post-service and is unrelated to service connected disability.

2.  The evidence indicates that the Veteran's current left knee disability, diagnosed as osteoarthritis of the left knee, was as likely as not caused by his service connected right knee disability.

3.  From July 27, 2006 to September 27, 2010, status post right knee arthrotomy and medial meniscectomy was not manifested by moderate recurrent subluxation or lateral instability.   

4.  From July 27, 2006 to October 31, 2011, osteoarthritis of the right knee was not manifested by flexion limited to 30 degrees.   

5.  Since November 1, 2011, status post total right knee replacement is not manifested by right knee ankylosis.  No limitation of motion was identified post-operatively.  There was no instability.  There are no chronic residuals consisting of severe painful motion or weakness of the affected extremity.


CONCLUSIONS OF LAW

1.  The criteria for establishing service connection for a bilateral hip disability, to include as secondary to a service connected knee disability have not been met.  38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.310 (2013).

2.  With resolution of reasonable doubt in the appellant's favor, the criteria for establishing service connection for a left knee disability (diagnosed as left knee osteoarthritis) as secondary to the service connected right knee disability have been met.  38 U.S.C.A. §§ 1131; 38 C.F.R. § 3.310.

3.  The criteria for a rating higher than 10 percent disabling for status post right knee arthrotomy and medial meniscectomy from July 27, 2006 to September 27, 2010 have not been met.  38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257.

4.  The criteria for a rating higher than 10 percent disabling for osteoarthritis of the right knee from July 27, 2006 to October 31, 2011 have not been met.  38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010.

5.  The criteria for rating higher than 30 percent for status post total right knee replacement since November 1, 2011 have not been met.  38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5055.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with regard to the issues decided herein.  There is no issue as to providing an appropriate application or the completeness of the application.  By correspondence dated in February 2007, VA advised the Veteran of the information and evidence needed to substantiate a claim.  The letter provided notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain.  The Veteran was also provided information regarding the assignment of disability ratings and effective dates.  The appeal was most recently readjudicated in the May 2012 Supplemental Statement of the Case. 

VA has also satisfied its duty to assist as to these issues.  The claims folder contains service treatment records, VA medical records and VA examinations.  Virtual VA records have also been reviewed.  No additional pertinent records are shown to be available, and the appellant does not argue otherwise.

For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claims discussed herein.  No further assistance to the Veteran with the development of evidence is required.  38 U.S.C.A. § 5103A (a) (2); 38 C.F.R. § 3.159(d).  Accordingly, the Board will address the merit of the claims.

SERVICE CONNECTION 

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Service connection may also be warranted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

Certain chronic diseases, such as arthritis, may be service connected if incurred or aggravated by service, or if manifested to a degree of 10 percent disabling or more within one year after separation from active duty.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 

Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a).  Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(b).  See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Section 3.310 was amended effective October 10, 2006, the claims for service connection were filed before the amendment as such the current version of 38 C.F.R. § 3.310 is not applicable to the claims on appeal.

The Veteran seeks service connection for a bilateral hip disorder.  As noted above, service connection for hip disorder was denied by rating of July 2003.  It was held that no hip disorder was noted in service and that it was not related to the service connected right knee disorder.  The appellant disagreed with that decision.  More recent development has revealed that the Veteran has osteopenia of the hips.  The examiner noted that osteopenia is a metabolic process and is not affected by pathological (inflammatory) process of other joints.  This opinion is persuasive in view of all the evidence on file and there is no opinion to the contrary.  As such, service connection for bilateral hip impairment is denied.

The Veteran also appeals the denial of service connection for a left knee disability.  He claims his left knee disability was caused and/or aggravated by his service connection right knee disability.  The Veteran is service connected for status post total right knee replacement.  

In weighing the positive and negative evidence, the Board finds in favor of the claim.  In this regard, the Veteran has been diagnosed with left knee osteoarthritis and he has complained of bilateral knee since 1997.  The VA examiner has rendered a positive and negative opinion on this issue.  In January 2012, the VA examiner opined that it was at least as likely as not (50 percent or greater probability) that the condition was proximately due to or the result of the Veteran's service connected condition.  He stated that any compensatory maneuvers would overwhelm the other knee and expedite the inflammatory process, i.e. osteoarthritis.  The same VA examiner also opined that the claimed condition was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service connected condition.  He reasoned that osteoarthritis is maturity/aging process (inflammatory) and not related to the right knee condition.  

Because there is an approximate balance of positive and negative evidence, the benefit of the doubt must be applied in favor of the Veteran.  38 U.S.C.A. § 5107(b)  (West 2002); see Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also 38 C.F.R. § 3.102.  In doing so, the Board notes that the Veteran is competent to report knee manifestations.  Layno v. Brown, 6 Vet. App. 465 (1994).  He has also presented credible statements to include testimony that his gait has been altered by his right knee and that he had to favor one knee to accommodate the other.  The Board has also taken into account the July 2006 statement from private physician, Dr. J.O., that the Veteran's degenerative arthritis in the right knee has caused him to change his gait.  In resolving doubt in favor of the Veteran, osteoarthritis of the left knee is granted.  

RATINGS 

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule).  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

Separate evaluations may be assigned for separate periods of time based on the facts found.  In other words, the evaluations may be "staged."  Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001).  A disability may require re-evaluation in accordance with changes in a veteran's condition.  It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history.  38 C.F.R. § 4.1.  

The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10.  In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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.

With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes.  Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse.  38 C.F.R. § 4.45.

The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.

Initially, the Board notes that during the beginning of this appeal the Veteran had two separate ratings in effect for his right knee.  His ratings included a 10 percent rating for limitation of motion due to osteoarthritis of the right knee under Diagnostic Code 5010 and a 10 percent rating for status post right knee arthrotomy and medial meniscectomy under Diagnostic Code 5257 for instability.  The Veteran had a total knee replacement in September 2010.  He was granted a temporary total from September 27, 2010 until November 1, 2011, after which a scheduler 30 percent evaluation was granted under Diagnostic Code 5010-5055 for total knee replacement of the right knee which included all right knee manifestations.  

Effective November 1, 2011, the rating under Diagnostic Code 5257 was discontinued.  The reduced rating did not result in a reduction or discontinuance of compensation payments.  Consequently, the reduction did not need to be preceded by a rating proposing the reduction.  38 C.F.R. § 3.105(e).  The reason that the reduced rating did not result in a reduction in compensation payments is because the RO also assigned a 30 percent rating for the right knee total replacement under Diagnostic Code 5010-5055, effective November 1, 2011.  Moreover, post-operatively, instability was not shown and ranges of motion were normal.

Accordingly, the Board will address the issues of entitlement to a rating higher than 10 percent disabling for status post right knee arthrotomy and medial meniscectomy from July 27, 2006 to September 27, 2010, entitlement to a rating higher than 10 percent disabling for osteoarthritis of the right knee from July 27, 2006 to October 31, 2011 and entitlement to a rating higher than 30 percent for status post total right knee replacement since November 1. 2011.  

Diagnostic Code 5010 addresses traumatic arthritis.  Diagnostic Code 5010 directs that the evaluation of arthritis be conducted under Diagnostic Code 5003, which states that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  38 C.F.R. § 4.71a, Diagnostic Code 5010. 

When, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion.  The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  38 C.F.R. § 4.71a, Diagnostic Code 5010. In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent; in the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating.  The above ratings are to be combined, not added under Diagnostic Code 5003.

Diagnostic Code 5257 provides that an evaluation of 10 percent is assigned for slight recurrent subluxation or lateral instability, an evaluation of 20 percent is assigned when the impairment is moderate, and an evaluation of 30 percent is assigned when the impairment is severe. 

Included within 38 C.F.R. § 4.71a are multiple DCs that evaluate impairment resulting from service-connected knee disorders, including DC 5256 (ankylosis), DC 5257 (other impairment, including recurrent subluxation or lateral instability), DC 5258 (dislocated semilunar cartilage), DC 5259 (symptomatic removal of semilunar cartilage), DC 5260 (limitation of flexion), DC 5261 (limitation of extension), DC 5262 (impairment of the tibia and fibula), and DC 5263 (genu recurvatum).

Diagnostic code 5258 applies to dislocated semi lunar cartilage with frequent episodes of locking, pain, and effusion into the joint.  A 20 percent rating applies for this disability.

Diagnostic code 5259 applies to removal of symptomatic semi lunar cartilage.  A 10 percent rating applies for this disability.

Diagnostic Code 5260 pertains to limited flexion of the knee.  A 10 percent rating applies when flexion is limited to 45 degrees.  A 20 percent rating applies when flexion is limited to 30 degrees.  A 30 percent rating applies when flexion is limited to 15 degrees. 

Diagnostic Code 5261 pertains to limitation of extension of the knee.  A 10 percent evaluation is assigned for extension that is limited to 10 degrees.  A 20 percent evaluation is assigned for extension that is limited to 15 degrees.  A 30 percent evaluation is assigned for extension that is limited to 20 degrees.  A 40 percent evaluation is assigned for extension that is limited to30 degrees.  A 50 percent evaluation is assigned for extension that is limited to 45 degrees or greater. 

The VA General Counsel held that a Veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 (which provides for a 10 percent rating for a noncompensable limitation of motion or painful motion of an affected joint) and 5257, provided that a separate rating must be based upon additional disability.  VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998).  Also, separate rating may be assigned for limitation of flexion and limitation of extension of the same knee. Specifically, where a Veteran has both a compensable limitation of flexion and a compensable limitation of extension of the same knee, the limitations must be rated separately to adequately compensate for functional loss associated with the disability.  VAOPGCPREC 9-04 (Sept. 17, 2004), 69 Fed. Reg. 59990 (2005).

In July 2006, Dr. O expressed that the Veteran's severe degenerative arthritis in the right knee has caused him to change his gait.  

During the February 2007 internal medicine evaluation, osteoarthritis of the right knee and status post right knee arthrotomy and medial meniscectomy was diagnosed.  He reported weakness, stiffness, swelling, heat, redness and instability since initial injury in 1962.  He described pain that varied on a scale of 1 to 10 in terms of severity but denied radiation of the pain.  He used a brace for stability but still had pain.  Examination revealed his gait was slightly abnormal and favored the right lower extremity.  There was no evidence of effusion or weakness but some mild tenderness along the medial joint line.  There was no heat, subluxation or guarding of movement but crepitus of the right more than left knee.  There was no locking pain, recurrent subluxation and/or ankylosis.  Flexion of the right knee was to 120 degrees with 0 degrees of extension.  There was pain at 120 degrees of flexion and no fatigue, weakness, lack of endurance or incoordination with repetitive movement.  With repetitive movement, there were no additional limitations in degrees of the right knee but there was pain.  The anterior and posterior cruciate instability test and medial and lateral collateral instability test were both negative bilaterally.  

The Veteran had a right knee replacement in September 2010.  During the October 2011 VA examination, he denied weakness, stiffness, swelling, heat, redness, giving way, lack of endurance, locking, fatigability, deformity, tenderness, drainage, effusion, subluxation, and pain or dislocation from the joint condition.  He also denied flare ups.  There were no symptoms from the replacement.  He walked with a normal gait and did not require any assistive device for ambulation.  The right knee showed no signs of edema, weakness, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation or guarding of movement.  He flexed to 140 degrees with pain at 135 degrees.  The joint function was additionally limited by pain but not fatigue, weakness, lack of endurance and incoordination.  The right knee tests were within normal limits for anterior and posterior cruciate ligaments, medial and lateral collateral ligaments and the medial and lateral meniscus.  The right knee showed no signs of subluxation.   

During the January 2012 VA examination, his right knee flexed to 140 degrees or greater.  There was no objective evidence of painful motion.  Extension was to 0 degrees.  There was no additional limitation in range of motion of the knee following repetitive use testing and there was no functional loss and/or functional impairment of the knee.  Examination also revealed anterior, posterior and medial lateral instability were normal.  There was no evidence of recurrent patellar subluxation/dislocation.  

Based on the evidence of record, the Board finds that against a rating higher than 10 percent disabling for status post right knee arthrotomy and medial meniscectomy from July 27, 2006 to September 27, 2010 under Diagnostic Code 5257.  In this regard, the Veteran reported instability since his initial injury in 1962.  He also reported that he used a brace for stability.  Examination revealed his gait was slightly abnormal and favored the right lower extremity.  There was no evidence, however, of subluxation.  Rather, the anterior and posterior cruciate instability test and medial and lateral collateral instability test were both negative bilaterally.  During this time, moderate subluxation or lateral instability was not shown by the record.  

A rating higher than 10 percent disabling for osteoarthritis of the right knee from July 27, 2006 to October 31, 2011 is also not warranted under Diagnostic Code 5010 which in turn rates under Diagnostic Code 5260.  In this regard, to warrant a higher rating the evidence must show flexion limited to 30 degrees or less.  During this period of time, at most, flexion of the right knee was functionally limited to 120 degrees.  Although the Veteran reported knee pain, pain is considered in the current evaluation.  See 38 C.F.R. § 4.59.  As flexion of the right knee was not shown to be functionally limited to 30 degrees or less during this period time a higher rating is not warranted.  

Lastly, the Board finds that a rating higher than 30 percent for status post total right knee replacement since November 1. 2011 is not warranted.  The Veteran's disability is rated under Diagnostic Code 5010-5055.

Residuals of a knee replacement are rated 60 percent disabling with chronic residuals consisting of severe painful motion or weakness in the affected extremity.  With intermediate degrees of residual weakness, pain or limitation of motion, rate by analogy to codes 5256, 5261, or 5262, a 30 percent rating was assigned.  Diagnostic Code 5055.

Review of the record reveals that postoperatively, the Veteran has had essentially a full range of motion of the right knee.  Moreover, there has been no sign of laxity or instability, severely painful motion, weakness of the extremity, or any other symptoms or findings warranting a rating in excess of the 30 percent assigned.

The Board has considered whether a separate compensable evaluation is warranted based on limitation of extension.  38 C.F.R. § 4.71a, Diagnostic Codes 5261.  It is shown, however, that the Veteran retains full extension.  As such, a separate rating is not warranted for limitation of extension.  Furthermore, the evidence is devoid of a showing of dislocated semilunar cartilage (DC 5258), symptomatic removal of semilunar cartilage (DC 5259), impairment of the tibia and fibula (DC 5262), and/or genu recurvatum (DC 5253).  As such, these codes are inapplicable.  

The Board acknowledges the Veteran's assertions that his disability is more severe than evaluated to include his reports of knee pain and instability.  The Veteran is competent to report such symptoms.  See Layno v. Brown, 6 Vet. App. 465 (1994).  The Board has also considered the pleadings and reports, and finds that the Veteran is credible in reporting the severity of his disability.  The more credible and probative evidence, however, is devoid of a showing that a higher rating is warranted.  Neither the lay nor medical evidence reflects the functional equivalent of symptoms required for a higher evaluation, even when considering the factors of Deluca.  

Lastly, the Board has considered whether a separate compensable rating is warranted for scarring of the knee.  Examination in February 2007 revealed a well healed scar at the right knee that was 7 x 1 cm.  He also had a scar involving the medial knee but more anteriorly that was 6.5 cm x 1 cm.  There was no tenderness, disfigurement, ulceration, adherence, instability, inflammation, edema, or tissue loss with the scars.  The October 2011 VA examination revealed a scar located over the right knee secondary to the total knee replacement surgery.  The scar was linear and measured 17 cm by .5 cm.  It was not painful on examination, and there was no skin breakdown, disfigurement, inflammation, edema, keloid formation and/or limitation of motion or function.  The Board finds that the above evidence does not warrant a separate compensable rating for scarring.  The scars associated with his disability are not painful, unstable and/or greater than 39 square cm.  At no time during this appeal has the scars been of the severity and/or of size so as to warrant a compensable rating under the rating criteria pertaining to scars.  See 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805.

The Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the appellant or his representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  In this case, the Board finds no other provision upon which to assign a higher rating.  Accordingly, the claims are denied. 

The Board has considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted.  See 38 C.F.R. § 3.321(b)(1) ; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996).  There are no exceptional or unusual factors with regard to the Veteran's disability.  The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.")  Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology to include pain and instability, and provide for consideration of greater disability and symptoms than currently shown by the evidence.  Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  Consequently, referral for extra-schedular consideration is not warranted.

Further, he has not contended that he is unable to work secondary to the right knee disorder so consideration under Rice v. Shinseki, 22 Vet. App. 447 (2009) is not indicated.


ORDER

Entitlement to service connection for a bilateral hip disability is not reopened.

Entitlement to service connection for osteoarthritis of the left knee is granted.  

Entitlement to a rating higher than 10 percent disabling for status post right knee arthrotomy and medial meniscectomy from July 27, 2006 to September 27, 2010 is denied.  

Entitlement to a rating higher than 10 percent disabling for osteoarthritis of the right knee from July 27, 2006 to October 31, 2011 is denied. 

Entitlement to a rating higher than 30 percent for status post total right knee replacement since November 1. 2011 is denied.  


REMAND

The Board finds that the remaining issues on appeal require further development.  To that end, the Veteran appeals the denial of service connection for rhinitis and a skin disability.  In the Veteran's May 1982 entrance examination, he reported a history of whooping cough, ear/nose/ throat trouble, asthma and hay fever.  The examiner noted that the Veteran had seasonal hay fever and childhood asthma.  The Veteran asserts that he was never issued a respirator or a mask to prevent him from breathing in any chemicals during service and that there was poor ventilation in the spaces he was in.  Regarding his claim for service connection for a skin disability of the hands and arms, the Veteran argues that during service he worked with oils and solvents without gloves to protect the skin on his forearms or hands.  Post service treatment records reveal diagnoses of psoriasis, dermatitis, allergic rhinitis and viral rhinitis.  The Veteran testified during his September 2012 hearing that his skin and allegoric conditions were likely the result of exposure to gas, grease and oil during service.  He claimed he did not have allergies before service but after handling the contaminants he has had problems.  He claims his problems started around the time of separation and that he did not get treated for them but self-medicated since that time until he went to the VA hospital.  The Veteran has not been afforded a VA examination on these issues.  In light of his current diagnoses and his assertions of in service occurrence and continuity of symptomatology, the Board finds that a remand for an examination and opinion is warranted.  

The Veteran also appeals the denial of service connection for disabilities of the feet and ankles.  He claims his disabilities are secondary to his service connected right knee disability.  After examination in January 2012, the VA examiner opined that the Veteran's foot and ankle disabilities were less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service connected condition.  According to the examiner, hallux valgus is an abnormality that after time is due to uneven foot wear and had nothing to do with knee osteoarthritis.  The examiner also found that calcaneal spur is aging process and hence not related to knee pathology.  

The Board notes, however, that in July 2006 private examiner Dr. J.O. stated that the Veteran's degenerative arthritis in the right knee had caused him to change his gait and develop pains in the left foot.  The Board also notes that the Veteran is now service connected for osteoarthritis of the left knee and he has presented testimony that his gait has been altered by his knee disabilities.  The Board finds that an addendum opinion is necessary to address what degree the Veteran's change in gait has caused and/or aggravated his ankle and foot disabilities, if any.  The evidence of record is insufficient in this regard.  

Lastly, in a March 2010 rating decision, the Veteran was denied service connection for a right ear disorder.  He expressed disagreement with the decision in March 2010.  The Veteran submitted a timely notice of disagreement with the March 2010 rating decision denying service connection for a right ear infection.  He, however, has not been issued a Statement of the Case (SOC).  As such, a remand is necessary for the issuance of a SOC and to give the Veteran an opportunity to perfect an appeal of such issue by submitting a timely substantive appeal.  Manlicon v. West, 12 Vet. App. 238 (1999).

Accordingly, the case is REMANDED for the following action:

1. Contact the Veteran and request that he identify any VA and/or private records pertaining to treatment for his disabilities that are not already of file.  Any records obtained must be associated with the claims folder.  If the RO/AMC cannot locate any identified record, the RO/AMC must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile.  The RO/AMC must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims.  The claimant must be given an opportunity to respond.

2. Schedule the Veteran for a VA examination to determine the nature and etiology of any skin disability.  The examiner is to be provided access to the Veteran's claims folders as well as the appellant's Virtual VA file.  Following a review of all of those documents, the examiner is to opine whether it is at least as likely as not, i.e., is there a 50/50 chance that the Veteran's skin disability was caused by service.  When rendering the opinion, the examiner must address the Veteran's contentions that his current disability resulted from exposure to gas, grease and oil during service.  The examiner must offer a fully reasoned rationale for all opinions offered.

3. Schedule the Veteran for a VA examination to determine nature and etiology of his rhinitis.  The examiner is to be provided access to the Veteran's claims folders as well as the appellant's Virtual VA file.  Following a review of all of those documents, the examiner is to opine whether it is at least as likely as not, i.e., is there a 50/50 chance that the Veteran's rhinitis was caused by service, or, if it preexisted service was aggravated by such service.  When rendering the opinion, the examiner must address the Veteran's contentions that his disability could have resulted from exposure to gas, grease and oil during service.  The examiner must offer a fully reasoned rationale for all opinions offered.

4. Obtain a VA opinion to determine the etiology of the Veteran's ankle and foot disabilities.  (This may be from the previous examiner if available.)  Access to the claims file and Virtual VA must be made available to the examiner for review. (If additional examination is needed, it should be scheduled.)  The examiner must opine whether it is at least as likely as not that any foot and/or ankle disability was caused by service, or was caused and/or aggravated by his service-connected right knee and/or left knee disabilities.  The examiner must address the Veteran's statements, and the statement of Dr. J.O. regarding the change in the Veteran's gait due to his right knee disability.  A fully reasoned rationale is required for any and all opinions offered.  

5. A SOC should be issued for the claims for service connection for a right ear disorder.  The Veteran should be advised of the necessity of filing a timely substantive appeal if he wants the Board to consider the issue.

6. After the development requested has been completed, the RO/AMC should review the examination report to ensure that they are in complete compliance with the directives of this REMAND.  If any report is deficient in any manner, the RO/AMC must implement corrective procedures at once.  

7.  The Veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the claim.  The consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. §§ 3.158, 3.655 (2012).  In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address.  It should also be indicated whether any notice that was sent was returned as undeliverable.

8. Upon completion of the above requested development and any additional development deemed appropriate, the AMC/RO must readjudicate the issues.  All applicable laws and regulations should be considered.  If the benefits sought on appeal remains denied, the appellant and his representative should be provided with a supplemental statement of the case.  An appropriate period of time should be allowed for response.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).


______________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs