Citation Nr: 1334891 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 06-28 274A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a gastrointestinal disability, claimed as stomach ulcers. 2. Entitlement to service connec tion for a cervical spine disability. 3. Entitlement to an initial evaluation in excess of 10 percent for right PFPS with limitation of extension and pain. 4. Entitlement to an initial evaluation in excess of 10 percent for right patellofemoral pain syndrome (PFPS) with limitation of flexion and pain. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran served on active duty with the United States Army from June 1977 to June 1980, with a period as a member of the ready reserves immediately after. Following that service, he was a member of the New York Army National Guard from August 1987 to December 2000, during which time he had periods of active duty for training (ACDUTRA) and periods of inactive duty for training (INACDUTRA). He was not called to Federal service as a National Guardsman. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine, and an October 2007 rating decision by the VA RO in St. Petersburg, Florida. The September 2005 rating decision granted service connection for PFPS and assigned a 10 percent evaluation effective March 2, 2005; the evaluation was based on painful motion of the joint. In a June 2007 rating decision and supplemental statement of the case, the RO granted service connection and a separate 10 percent evaluation for right PFPS with limitation of extension, effective May 16, 2007. Both assigned evaluations for PFPS, now characterized by planes of motion affected, are currently on appeal. The September 2005 decision also denied service connection for dyspepsia, claimed as stomach ulcers. This issue has been recharacterized as a gastrointestinal disability. In the October 2007 rating decision, the RO denied service connection for a cervical spine disability. When these matters were previously before the Board in April 2009, they were remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC, for further development. While that remand was being processed, service connection for asthma was granted; an appeal with regard to that issue is therefore satisfied, and no further question remains for Board consideration. The remaining issues, as listed above, were returned to the Board. The appeal was again remanded in November 2010. In the April 2009 Remand, the Board noted that the Veteran appeared to be raising additional claim of entitlement to service connection for hemorrhoids and entitlement to service connection for a disability characterized as a "buzzing" in the left ear. The Veteran had also asserted a claim of entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). There is no indication that these claims were subsequently addressed by the Agency of Original Jurisdiction (AOJ), and they are therefore, again referred to the AOJ for appropriate action. The issues of entitlement to service connection for a gastrointestinal disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A cervical spine disability was not manifest in service or during a period of ACDUTRA; arthritis of the cervical spine was not manifest within one year of separation from active service; cervical spine disability is unrelated to service. 2. Right PFPS with limitation of extension is manifest by pain and full extension. 3. For the period prior to May 16, 2007, right PFPS with limitation of flexion was manifest by pain and flexion limited to 130 degrees by pain. 4. From May 16, 2007 to February 9, 2011, right PFPS with limitation of flexion was manifest by pain and flexion limited to 30 degrees by pain. 5. For the period from February 9, 2011, right PFPS with limitation of flexion was manifest by pain and flexion limited to 70 degrees by pain. 6. Recurrent subluxation and/or lateral instability of the right knee has not been demonstrated on objective examination. CONCLUSIONS OF LAW 1. A cervical spine disability was not incurred in or aggravated by service, and degenerative joint disease of the cervical spine may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 2. The criteria for an initial evaluation in excess of 10 percent for right PFPS with limitation of extension have not been met or approximated. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261 (2013). 3. For the period prior to May 16, 2007, the criteria for an initial evaluation in excess of 10 percent for right PFPS with limitation of flexion have not been met or approximated. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2013). 4. For the period from May 16, 2007 to February 9, 2011, the criteria for an initial evaluation of 20 percent, but no higher, for right PFPS with limitation of flexion have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2013). 5. For the period from February 9, 2011, the criteria for an initial evaluation in excess of 10 percent for right PFPS with limitation of flexion have not been met or approximated. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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. VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which 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. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. A letter dated in March 2005 discussed the evidence necessary to support a claim for service connection. The evidence of record was listed and the Veteran was informed of the allocation of responsibilities between himself and VA. An April 2007 letter discussed the Veteran's claim of entitlement to service connection for a cervical spine disability. The evidence of record was listed and the Veteran was informed of the allocation of responsibilities between himself and VA. He was also advised of the manner in which VA determines disability ratings and effective dates. The Board notes that this is a case in which the Veteran has challenged the initial evaluation assigned following the grant of service connection for his right knee disability. In Dingess, the Court of Appeals for Veterans Claims held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. With respect to VA's duty to assist, VA and private treatment records have been obtained and associated with the record. The Board acknowledges that the November 2010 remand directed that records from Kings County Hospital be sought; however, in February 2011 the Veteran called the RO and indicated that Kings County Hospital had no additional records. He requested that VA request no additional records in his appeal. A VA examination has been conducted in the matters of the Veteran's cervical spine disability and right knee disability, and an addendum report was requested with respect to the right knee examination. The Board finds that the examination reports and the addendum report are adequate, in that the examinations were conducted by a clinician who reviewed the record, interviewed the Veteran, and performed appropriate physical examinations. He subsequently reviewed the record and provided additional information regarding the Veteran's right knee disability. The Veteran has not otherwise identified any additional available evidence or information which could be obtained to substantiate the claim. The Board is also unaware of any such outstanding evidence or information. Therefore, the Board is also satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis Service Connection for Cervical Spine Disability Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a claimant must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from disease or injury incurred in or aggravated in the line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury (but not disease) incurred in or aggravated in the line of duty. 38 U.S.C.A. §§ 101(21), (22), (23), (24), 106 (West 2002); 38 C.F.R. § 3.6(a), (c), (d) (2013). With specific regard to National Guard and Reserve service, service connection may be granted for disability resulting from either disease or injury incurred in, or aggravated while performing, ACDUTRA. With respect to time periods of INACDUTRA, service connection may only be granted for injury so incurred or aggravated. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131 (West 2002). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). Service treatment records reflect that in January 1980, the Veteran complained of neck pain. The assessment was muscle spasm. Medication and therapy were prescribed. On separation examination in May 1980 the Veteran denied arthritis, deformity, lameness, and recurrent back pain. On physical examination his spine was clinically normal. The Veteran's National Guard enlistment examination report, dated in August 1987, notes normal spine. The summary of defects and diagnoses did not include any indication of a cervical spine disability. At that time, the Veteran denied arthritis, deformity, lameness, and recurrent back pain. On National Guard periodic examination in October 1992, the Veteran denied arthritis, deformity, lameness, and recurrent back pain. His spine was clinically normal. Examination in December 1997 also indicated normal spine, and the Veteran denied relevant symptoms. A January 2001 VA treatment record reflects the Veteran's complaint of neck pain. In September 2006, the Veteran stated that he had osteoarthritis in his cervical spine. He attributed it to having served in cold climates and his 12 years in the infantry. A March 2007 VA treatment record notes the Veteran's complaint of localized neck pain. Examination revealed limited motion of the cervical spine on rotation and lateral bending. The diagnosis was chronic pain. A May 2007 examination report, apparently for the Army Reserves, indicates that the Veteran's spine was abnormal. The examiner specified that the Veteran had a lumbar spine disc bulge. The summary of defects and diagnoses included degenerative arthritis of the lumbosacral spine. The examiner recommended that the Veteran meet a medical evaluation board. On VA spine examination in October 2007, the Veteran indicated that the onset of neck pain was many years previously. Physical examination revealed normal posture and gait. The position of the Veteran's head was stooped. Curvature and symmetry of the spine were normal. There was no spasm. Tenderness was noted. The diagnosis was osteomalacia. The examiner opined that the current spinal condition was not due to the prior cervical spine condition, noting that the Veteran had no symptoms related to spinal disease. He noted that his complaints were not consistent with examination, and that there appeared to be an element of functional overlay. The report of a November 2007 medical evaluation board examination notes the Veteran's 1980 complaint of neck pain. At the time of this examination, the Veteran reported that his neck began to bother him two years previously. The examiner pointed out that there were no line of duty determinations referable to the Veteran's neck. Following examination, the diagnosis was chronic neck pain due to spondylosis at C4/C7. A February 2008 report referring the Veteran for a physical evaluation board indicates that the board found that chronic neck pain preexisted service and was not permanently aggravated thereby. In February 2008 the Veteran responded that his neck condition was reported during service and that after a long period carrying heavy loads, such would eventually affect his physical condition. He pointed to his 12 years in the infantry. The report of a physical evaluation board convened in March 2008 indicates that the Veteran had chronic neck pain with spondylosis at C6-7. The board report notes that the Veteran had not served on active duty since 1980, and that a June 2006 VA treatment record noted chronic neck pain for six to seven years with no history of specific injury. The board also noted that there was no line of duty determination referable to the Veteran's back. On VA examination in February 2011 the Veteran's history was reviewed. The Veteran reported that his neck first became symptomatic in Alaska, when he pulled sleds with a harness. He also stated that he injured his back while in Korea in 1979, when performing maneuvers on a cliff. He indicated that at that time, he was treated with cream and heat. The diagnosis was degenerative joint and disc disease of the cervical spine. The examiner noted that the Veteran complained during service in January 1980, but that the May 1980 separation examination was silent for a neck condition. He indicated that the Veteran was next treated at the Brooklyn VA Medical Center in December 1987 but that examination was normal and no diagnosis was rendered. He further noted that more recent VA treatment occurred in August and October 2006. He concluded that it was less likely than not that the current degenerative joint and disc disease of the cervical spine was due to the single episode of muscle strain diagnosed in 1980. He noted that examination in 1987 was normal and that there was no chronicity established and no documentation of the condition until 2006. He stated that it was less likely that the cervical spine condition was caused or aggravated by service. Upon careful consideration of the foregoing evidence, the Board concludes that service connection is not warranted. While the evidence reveals that the Veteran has diagnoses referable to his cervical spine, the most competent and probative evidence of record does not etiologically link any such diagnosis to service or any incident therein. In this regard, the Board observes that although the Veteran was assessed with muscle spasm in January 1980, his spine was clinically normal on discharge examination in May 1980. The Veteran does not appear to have complained of neck pain until 1987, according to a record reviewed by the February 2011 VA examiner. The Board may, and will, consider in its assessment of a service connection claim the passage of a lengthy period of time wherein the Veteran has not complained of the malady at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Feb. Cir. 2002) (en banc). Two VA examiners have concluded that a cervical spine disability is not related to service. They provided reasoned opinions based on a complete review of the Veteran's history, interview, and examination. In assigning high probative value to these opinions, the Board notes that the examiners reviewed the record, obtained a history from the Veteran, and conducted a complete examination. There is no indication that the examiners were not fully aware of the Veteran's past medical history or that they misstated any relevant fact. The Board thus finds the examiners' opinions to be of greater probative value than the Veteran's assertions to the contrary. The Board also acknowledges the Veteran's own assertions that a cervical spine disability is related to service. The Veteran may attest to factual matters of which he has first-hand knowledge, such as subjective complaints, and his assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). He is competent to report incidents in service and symptoms since then. He is not, however, competent to render an opinion as to the cause or etiology of the currently diagnosed cervical spine disability because he does not have the requisite medical knowledge or training, and because such matters are beyond the ability of a lay person to observe. See Rucker v. Brown, 10 Vet. App. 67, 71 (1997). As discussed, the VA examiners considered the Veteran's description of in-service events and the documented history, but ultimately concluded that the current cervical spine disability is not related to service. The Board finds the most probative evidence of record to be this opinion by the competent VA health care provider. Even if the Veteran's statements asserting that his cervical spine disability is related to service were found to be competent, credible and probative, they are still outweighed by the examiners' opinions. The opinions were provided by medical professionals who reviewed the history, interviewed the Veteran and provided opinions supported by rationale. In summary, no medical professional has attributed the Veteran's current cervical spine disability to service. In that regard, the Board places much more weight on the opinion of the competent VA health care providers who conducted physical examination and reviewed the record, than on the Veteran's assertions that his current cervical spine disability is related to service. The grant of service connection requires competent evidence to establish a diagnosis and, as in this case, relate the diagnosis to the Veteran's service. While the record contains diagnoses referable to the Veteran's cervical spine, the preponderance of the evidence is against finding that this diagnosed disability is related to any injury or disease in service. The Board finds that the negative record at service discharge and for years following service is more probative than the Veteran's more recent statements. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Absent credible and competent lay or medical evidence relating this claimed disability to service, the Board concludes that the claim of entitlement to service connection must be denied. The preponderance of the evidence is against the Veteran's claim and the doctrine of reasonable doubt is not applicable in the instant appeal. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); 38 C.F.R. § 3.102 (2013). Evaluation of the Right Knee Disability ratings are based upon schedular requirements that reflect the average impairment of earning capacity occasioned by the state of a disorder. 38 U.S.C.A. §1155. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4 (2013). In determining the level of impairment, the disability must be considered in the context of the entire recorded history, including service medical records. 38 C.F.R. §4.2 (2013). An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. §4.10 (2013). The Board observes that in cases where the original rating assigned is appealed, consideration must be given to whether a higher rating is warranted at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). The Board has considered whether staged ratings are warranted and has applied them where appropriate. 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. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. §4.7 (2013). On VA examination in July 2005, the Veteran complained of pain, lack of endurance, and weakness. Tenderness was noted at the right knee anteriorly. The Veteran had pain on flexion greater than 130 degrees. The examiner noted that pain increased on repetition. The diagnosis was right patellofemoral syndrome. On VA joints examination in May 2007, the Veteran's history was reviewed. The examiner noted that the Veteran used a cane for ambulation. The Veteran reported that he could stand for 15 to 30 minutes and that he could walk two blocks. He endorsed giving way, pain, stiffness, and locking episodes. He also endorsed flare-ups of joint disease occurring every one to two months, causing moderate to severe impairment and lasting one to two days. On physical examination, the Veteran walked with a limp favoring the right side. He had zero to 50 degrees of flexion passively and actively, with pain beginning at 30 degrees. Following repetitive use, flexion was limited by pain to 30 degrees. Extension was to -10 degrees, and there was no additional limitation following repetition. There were no signs of inflammatory arthritis and no ankylosis. The examiner stated that there was no instability. An additional VA examination was carried out in February 2011. The Veteran's history was reviewed. He endorsed giving way, instability, pain, stiffness, and weakness. He noted that he had severe flare-ups every two to three weeks, lasting one to two days. Physical examination revealed motion from zero degrees of extension to 80 degrees of flexion, with pain beginning at 70 degrees. There was objective evidence of pain following repetitive motion, but no additional limitation of motion. In April 2012 the examiner added that examination showed no evidence of joint instability, and that there was no clinical evidence of patellar subluxation or dislocation. Under 38 C.F.R. § 4.71a, Diagnostic Code 5014, osteomalacia is to be rated on limitation of motion of the affected part, as arthritis, degenerative. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. 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 5003. Ankylosis of the knee warrants a 40 percent evaluation if it is in flexion between 10 and 20 degrees. If ankylosis is in flexion between 20 and 45 degrees, a 50 percent evaluation is warranted. If ankylosis is extremely unfavorable at an angle of 45 degrees or more, a 60 percent evaluation is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5256. Instability of the knee is evaluated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under that Diagnostic Code, a 10 percent evaluation is warranted where impairment of the knee involves slight subluxation or lateral instability. A 20 percent evaluation is warranted where the impairment is moderate, and a 30 percent evaluation will be assigned where the impairment is severe. A noncompensable evaluation is appropriate where flexion is limited to 60 degrees. A 10 percent rating is warranted where flexion of the leg is limited to 45 degrees and a 20 percent rating is warranted where flexion is limited to 30 degrees. Where flexion is limited to 15 degrees, a 30 percent rating is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5260. A noncompensable evaluation is warranted where extension of the leg is limited to 5 degrees; a 10 percent rating is appropriate where extension of the leg is limited to 10 degrees; and a 20 percent rating is warranted for extension limited to 15 degrees. A 30 percent rating is for assignment for extension limited to 20 degrees, a 40 percent evaluation is warranted for extension limited to 30 degrees, and a 50 percent evaluation is for application where extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Normal range of knee motion is extension to 0 degrees and flexion to 140 degrees. 38 C.F.R. § 4.71, Plate II (2013). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2013). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). PFPS with limitation of extension and pain This component of the Veteran's right knee disability is currently evaluated as 10 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5261. In a May 2012 supplemental statement of the case, the AOJ continued a 10 percent evaluation for limitation of extension and explained that although improvement had been shown since the May 2007 VA examination, sustained improvement had not been demonstrated. It further indicated that because the evaluation of limitation of flexion of the right knee was based on painful motion under 38 C.F.R. § 4.59, the evaluation of limitation of flexion must be under Diagnostic Code 5261 in order to avoid pyramiding. Having reviewed the evidence pertaining to this claim, the Board concludes that an evaluation in excess of 10 percent for PFPS with limitation of extension and pain is not warranted. In this regard, the Board observes that the current 10 percent evaluation contemplates extension limited to 10 degrees. A higher 20 percent evaluation requires evidence showing limitation of motion to 15 degrees. Such is not shown by the evidence of record. Accordingly, an evaluation in excess of 10 percent based upon limitation of extension is not for application at any point during the appeal period. PFPS with limitation of flexion and pain This component of the Veteran's right knee disability is currently evaluated as 10 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5099-5014. 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. 38 C.F.R. § 4.27 (2013). Under Diagnostic Code 5014, osteomalacia is to be rated on limitation of motion of the affected part, as arthritis, degenerative. The Board has considered the evidence relating to this component of the Veteran's right knee disability and has determined that for the period prior to May 16, 2007, the currently assigned 10 percent evaluation is appropriate. The 10 percent evaluation contemplates painful motion of the knee, or flexion limited to 45 degrees. A higher evaluation requires evidence demonstrating the functional equivalent of flexion limited to 30 degrees. Such is not shown by the evidence. Rather, the July 2005 VA examination report reflects flexion to 130 degrees with pain. As such, the Board concludes that for the period prior to May 16, 2007, the currently assigned 10 percent evaluation is appropriate. For the period from May 16, 2007 to February 9, 2011, however, the Board concludes that a 20 percent evaluation is warranted for PFPS of the right knee with limitation of flexion. In that regard, the Board observes that the May 2007 VA examination report reflects flexion to 50 degrees with pain at 30 degrees. As the record indicates functional limitation at 30 degrees of flexion, a higher 20 percent evaluation is warranted for this period. The Board further notes that a higher, 30 percent evaluation is not applicable. There is no indication of flexion limited to 15 degrees to support the higher rating. Accordingly, a 20 percent evaluation but no higher is appropriate for this period. For the period from February 9, 2011, the Board has concluded that the Veteran's right knee PFPS with limitation of flexion is 10 percent disabling. The February 2011 VA examination report indicates pain at 70 degrees of flexion. Such functional impairment supports a 10 percent evaluation based on painful motion. A higher 20 percent evaluation requires evidence of flexion limited to 30 degrees or its functional equivalent. The evidence does not support such limitation. Thus, for the period beginning February 9, 2011, a 10 percent evaluation applies for PFPS with limitation of flexion. Conclusion The Board has considered whether separate compensable evaluations might apply under the other various criteria for evaluation of knee disability; however, there is no objective evidence of instability subject to separate evaluation. Moreover, the evidence does not reflect ankylosis that would allow for a higher evaluation under the criteria pertinent to evaluation of such disability. Accordingly, the Board finds that the evaluations discussed herein are appropriate. The Board accepts that the Veteran has experienced functional impairment, pain, and pain on motion. See DeLuca. The Board also finds the Veteran's own reports of symptomatology to be credible and has considered the functional impact of painful motion. Nevertheless, neither the lay nor medical evidence reflects the functional equivalent of symptoms required for higher evaluations under diagnostic codes pertinent to the knee when considering such factors as pain, weakness, and incoordination. In essence, the more probative evidence consists of that prepared by neutral skilled professionals, and such evidence demonstrates that the evaluation assigned herein is appropriate. Extraschedular Consideration The potential application of various provisions of Title 38 of the Code of Federal Regulations has also been considered but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the initial inquiry posed by Thun, the Board has been unable to identify an exceptional or unusual disability picture with respect to the Veteran's service-connected knee disability. The medical evidence fails to demonstrate symptomatology of such an extent that application of the ratings schedule would not be appropriate. In fact, as discussed in detail above, the symptomatology of the Veteran's disability is specifically contemplated under the appropriate ratings criteria. Thus, the Board determines that the schedular rating criteria adequately contemplate the Veteran's symptomatology, and that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet.App. 218, 227 (1995). ORDER Entitlement to service connection for a cervical spine disability is denied. Entitlement to an initial evaluation in excess of 10 percent for right PFPS with limitation of extension and pain is denied. For the period prior to May 16, 2007, entitlement to an initial evaluation of 10 percent for right PFPS with limitation of flexion with pain is denied. For the period from May 16, 2007 to February 9, 2011, entitlement to an initial evaluation of 20 percent for right PFPS with limitation of flexion with pain is granted, subject to the laws and regulations controlling the award of monetary benefits. For the period from February 9, 2011, entitlement to an initial evaluation in excess of 10 percent for PFPS with limitation of flexion with pain is denied. REMAND Service Connection for Gastrointestinal Disability There are two pivotal cases which address the need for a VA examination, Duenas v. Principi, 18 Vet. App. 512 (2004) and McLendon v. Nicholson, 20 Vet App. 79 (2006). In McLendon, the Court held that in disability compensation claims, the Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. Id. at 81. In Duenas, the Court held that a VA examination is necessary when the record: (1) contains competent evidence that the Veteran has persistent or recurrent symptoms of the claimed disability and (2) indicate that those symptoms may be associated with his active military service. Service treatment records indicate that in April 1980 the Veteran complained of a burning sensation in his stomach when he coughed. A VA treatment record dated in December 1984 notes the Veteran's complaint of burning pain in his stomach and throat. Peptic ulcer disease was suggested. An April 1990 VA record reflects the Veteran's reported history of ulcer. He underwent upper endoscopy at a VA facility in April 1990. The subsequent report indicated that the test was normal. A VA treatment record dated in June 1997 indicates the Veteran's reported history of ulcer. A VA treatment record dated in October 2000 indicates that the Veteran was highly anxious and reported a lot of gas and bloating. The Veteran reported a history of peptic ulcer disease in 1988. The assessment was dyspepsia. A November 2004 VA treatment record indicates an assessment of abdominal discomfort. The provider noted that the Veteran reported a history of peptic ulcer disease, but that the Veteran's symptoms appeared to be consistent with GERD. On VA examination in July 2005, the Veteran's history was reviewed. He denied a history of vomiting, hematemesis or melena, and treatment. He endorsed left epigastric pain occasionally, and noted that he had diarrhea after lunch. There was no tenderness or pain, and no signs of anemia. The examiner noted that upper gastrointestinal series was normal. He diagnosed dyspepsia. He noted that with negative studies and no alarming symptoms or signs, a no more precise diagnosis was possible. Nonulcer dyspepsia is noted in an August 2010 VA treatment record. An undated letter advising the Veteran of the results of a December 2010 endoscopy notes that biopsy results indicated inflammation and Barrett's esophagus. Here, the Board observes that symptoms were reported during active service, and that thereafter the Veteran reported symptoms referable to his gastrointestinal system. He has current diagnoses. As such, the Board concludes that an examination is warranted to determine the etiology of any currently present gastrointestinal disability. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the etiology of his claimed gastrointestinal disability. The claims folder should be forwarded to the examiner for review, and the examiner should be directed to elicit a complete history from the Veteran, the details of which should be included in the examination report. Following examination, interview of the Veteran, and review of the claims file, the examiner should provide an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that any currently present gastrointestinal disability is related to any disease or injury in service. A discussion of the complete rationale for all opinions expressed should be included in the examination report, to include reference to pertinent evidence where appropriate. If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 2. The Veteran is hereby notified that it is his responsibility to report for any 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. 3. Readjudicate the Veteran's claim, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. 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 A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs