Citation Nr: 1335186 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 96-46 397 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased rating for right knee chondromalacia patella with genu varus, currently rated as 10 percent disabling. 2. Entitlement to an increased rating for left knee chondromalacia patella with genus varus, currently rated as 10 percent disabling. 3. Entitlement to an increased rating for residuals of a varicocelectomy with left cremasteric muscle function loss, orchialgia and scar, currently rated as 10 percent disabling. 4. Entitlement to service connection for alcoholism as secondary to an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression and bipolar disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from December 1985 to March 1990. This appeal to the Board of Veterans' Appeals (Board) arose from multiple rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In an April 2002 rating decision, the RO, in pertinent part, denied the Veteran's claims for an increased rating for right and left knee chondromalacia patella with genu varus and a scar as well as residuals of a varicocelectomy with left cremasteric muscle function loss and orchialgia. In August 2008, the Board remanded the claims for an increased rating for a right and left knee disorder as well as residuals of a varicocelectomy to the Appeals Management Center (AMC) in Washington, D.C. for additional development and adjudication. In a July 2010 rating decision, the RO, in pertinent part, denied the Veteran's claim for service connection for alcohol problems. The Veteran testified before the undersigned at a hearing at the RO (Travel Board) in July 2012. A hearing transcript has been associated with the claims file. In February 2013, the Board remanded the instant claims to the AMC in Washington, D.C. for additional development and adjudication. As will be discussed herein, the agency of original jurisdiction (AOJ) has substantially complied with the remand directives and the Board may proceed with review of the issues of entitlement to an increased rating for right and left knee chondromalacia patella with genu varus and entitlement to service connection for alcoholism as secondary to an acquired psychiatric disorder. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file reveals VA treatment records dated through May 2013; such records dated through February 2013 were considered in the May 2013 supplemental statement of the case (SSOC). Additional VA treatment records were added to the Veteran's Virtual VA claims file subsequent to the issuance of the May 2013 SSOC; however, the Veteran's representative waived RO consideration of such evidence in May 2013. Therefore, the Board may properly consider such newly received evidence. 38 C.F.R. § 20.1304 (2012). The issue of entitlement to an increased rating for residuals of a varicocelectomy is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. The Veteran's right and left knee chondromalacia with genu varus results in pain, reduced range of motion, including extension to no more than zero degrees and flexion to no less than 130 degrees, x-ray evidence of arthritis, grinding of the chondromalacia on the patella, crepitus, and intermittent mild laxity; but is not productive of locking, ankylosis, moderate laxity, impairment of the tibia or fibula, genu recurvatum, or dislocation or removal of the semilunar cartilage. 2. There is probative medical evidence of record that shows that the Veteran does not have an alcohol disability that is secondary to service connected bipolar disorder. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right knee chondromalacia patella with genu varus are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.27, 4.40, 4.45, 4.71a, 5299-5257 (2013). 2. The criteria for a rating in excess of 10 percent for left knee chondromalacia patella with genu varus are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.27, 4.40, 4.45, 4.71a, 4.124a, 5299-5257 (2013). 3. Alcoholism is not proximately due to or the result of an acquired psychiatric disorder, to include PTSD, depression, and bipolar disorder. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. Post-rating letters dated in November 2008 and December 2008 provided pertinent notice to the Veteran in connection with his claims. The letters indicated what information and evidence was needed to substantiate each claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence would be obtained by VA. The letters also provided him with general information pertaining to VA's assignment of disability ratings and effective dates in accordance with Dingess/Hartman. In addition, the post-rating letters notified the Veteran that medical or lay evidence could be submitted to substantiate his claims for an increased rating and provided specific examples. These letters stated that such evidence should discuss his disability symptoms from people who have witnessed how they affected him as well as notifying him that he may submit statements from his employers. The remaining elements of notice were provided in the letters. The Veteran's claims were last readjudicated in a May 2013 SSOC. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of any notice provided. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board finds that the duty to notify has been satisfied. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided. Pertinent medical evidence associated with the claims file consists of the reports of the VA examination, as well as the Veteran's VA outpatient treatment records, various private treatment records and Social Security Administration (SSA) records. The Board also finds that no additional RO action to further develop the record in connection with any claim on appeal, prior to appellate consideration, is required. Moreover, based on the foregoing, the Board determines that the AOJ has substantially complied with the August 2008 and February 2013 remand directives in obtaining the Veteran's updated VA treatment records, providing VCAA notice, and affording the Veteran VA examinations, as applicable to the instant claims, and as such that no further action is necessary in this regard. See D'Aries, supra. The Veteran was afforded multiple VA examinations in conjunction with the claims decided herein, including VA examinations conducted in October 2001, November 2010 and February 2013, to determine the severity of his right and left knee disabilities. Neither the Veteran nor his representative has alleged that these VA examinations are inadequate for rating purposes. Moreover, the Board finds that the examinations are adequate in order to evaluate the Veteran's service-connected disabilities decided herein as they include interviews with the Veteran, a review of the record, and full examinations, addressing the relevant rating criteria. The Board also finds that the VA opinion obtained on the alcohol issue is adequate as well. Moreover, neither the Veteran nor his representative has alleged that his disabilities have worsened in severity since the most recent VA examination. Rather, with respect to such claims, they argue that the evidence reveals that these disabilities have been more severe than the currently assigned ratings for the duration of the appeal period. Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (the passage of time alone, without an allegation of worsening, does not warrant a new examination). Therefore, the Board finds that the examinations of record are adequate to adjudicate the Veteran's claims for an increased rating and no further examination is necessary. Additionally, in December 2012, the Veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned. In Bryant v. Shinseki, the Court held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the December 2012 hearing, the undersigned enumerated the issues on appeal. Also, information was solicited regarding the nature of the Veteran's knee disabilities, including his contention that that he experienced instability and limited range of motion. In addition, the Veteran was asked where he received treatment for his knee disabilities and when he last underwent treatment. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. Id. at 497. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate these claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with any claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Higher Ratings A. Relevant Statutes and Regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Except as otherwise provided in the Rating Schedule, all disabilities, including those arising from a single disease entity, are to be rated separately, unless the conditions constitute the same disability or the same manifestation. 38 C.F.R. §§ 4.14, 4.25; Esteban v. Brown, 6 Vet. App. 259 (1994). Where there is a question as to which of two evaluations shall be applied, the higher rating 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. Although the regulations do not give past medical reports precedence over current findings, the Board is to consider a veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 35 (1999). A veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. At the outset, the Board notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. B. Right and Left Knee The Veteran contends that his right and left knee disabilities warrant a higher rating due to the severity of his instability as well as the pain and popping he experienced. In addition, the Veteran's representative contends that a separate rating for arthritis is warranted due to X-ray findings of degenerative disease and evidence of painful motion. Historically, the Veteran's right and left knee chondromalacia patella with genus varus has been rated by analogy under the diagnostic codes for an unlisted knee disability with recurrent subluxation or lateral instability (Diagnostic Codes 5299-5257). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires 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. When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be "built-up" as follows: the first two digits will be selected from that part of the schedule most closely identifying the part, or system of the body involved, in this case, the neurological system, and the last two digits will be "99" for all unlisted conditions. Then, the disability is rated by analogy under a diagnostic code for a closely related disability that affects the same anatomical functions and has closely analogous symptomatology. 38 C.F.R. §§ 4.20, 4.27. Traumatic arthritis is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved. If the limitation of motion is noncompensable, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under 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. Standard range of knee motion is from zero degrees (on extension) to 140 degrees (on flexion). See 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5260, a 10 percent is warranted where flexion was limited to 45 degrees. A rating of 20 percent is warranted where flexion was limited to 30 degrees and a rating of 30 percent is warranted were flexion was limited to 15 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, a 10 percent rating is warranted where extension was limited to 10 degrees and a 20 percent rating is warranted where extension was limited to 15 degrees. A rating of 30 percent is warranted where extension was limited to 20 degrees while a 40 percent rating is warranted where extension was limited to 30 degrees. A 50 percent is warranted where extension was limited to 45 degrees. 38 C.F.R. § 4.71a. The VA General Counsel has held that separate ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. See VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). Malunion of the tibia and fibula with a slight knee disability warrants a 10 percent rating, such malunion with a moderate knee disability warrants a 20 percent rating and such malunion with a marked knee disability warrants a 30 percent rating. Nonunion of the tibia and fibula with loose motion that requires a brace warrants a maximum 40 percent rating. 38 C.F.R. § 4.71a, 5262. The terms "slight," "moderate," and "marked" are not defined in the 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," and all evidence must be evaluated in deciding rating claims. 38 C.F.R. § 4.6. Knee impairment with recurrent subluxation (partial dislocation) or lateral instability warrants a 20 percent rating if it is moderate or a maximum 30 percent rating if it is severe. 38 C.F.R. § 4.71a, 5257. VA General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under 5003 and 5257. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997). The General Counsel subsequently clarified that for a knee disability rated under 5257 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under 5260 or 5261 need not be compensable but must at least meet the criteria for a noncompensable rating. A separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. VAOPGCPREC 9-98 (1998); 63 Fed. Reg. 56,704 (1998). Knee ankylosis at favorable degree in full extension or in slight flexion between zero degrees and 10 degrees warrants a 30 percent rating. Knee ankylosis in flexion between 10 and 20 degrees warrants a 40 percent rating while such ankylosis in flexion between 20 and 45 degrees warrants a 50 percent rating. Extremely unfavorable knee ankylosis in flexion at an angle of 45 degrees or more warrants a 60 percent rating. 38 C.F.R. § 4.71a, 5256. Semilunar, dislocated cartilage with frequent episodes of "locking," pain and effusion into the joint warrants a maximum 20 percent rating. 38 C.F.R. § 4.71a, 5258. The "amputation rule" provides that the combined rating for disabilities of an extremity cannot exceed the rating for amputation at the elective level. 38 C.F.R. § 4.68. A 60 percent rating is assigned if there was an amputation of the thigh, above the knee, at the middle or lower third. 38 C.F.R. § 4.71a, 5162. Amputation of a leg with defective stump and thigh amputation recommended or amputation not improvable by prosthesis controlled by natural knee action may also be assigned a 60 percent rating. 38 C.F.R. § 4.71a, 5163, 5164. A January 2000 VA treatment note reflected the Veteran's complaints of constant knee pain and weakness. Physical examination was negative for restricted motion, swelling, tenderness, cyanosis or pedal edema. Right and left knee X-rays conducted in February 2001 found both knees to be normal. An October 2001 VA examination report reflected the Veteran's complaints of anterior compartment pain, occasional swelling and popping when he used his knees. Physical examination found lateral retinaculum and mild, but not marked, grating of the chondromalacia on the patella, both bilaterally. The right and left knees were found to be stable on the various stressing tests and McMurray was negative. Range of motion was from zero degrees to 130 degrees bilaterally. The examiner noted that the examination was "basically negative" except for lateral retinaculum and patellofemoral syndrome. An October 2001 VA treatment note indicated that there was no crepitus, effusions, erythema or joint instability present on musculoskeletal examination. A February 2002 VA treatment note indicated that the Veteran's left knee was grinding on flexion and extension, that Drawer test was negative and that mild laxity was found. An assessment of left knee degenerative joint disease/laxity was made; there was no indication that X-ray testing had been conducted. A second February 2002 VA treatment note indicated that the Veteran's bilateral knee range of motion was intact (without providing specific range of motion measurements), that they were nontender to palpation and that no effusion or erythema were found. An April 2002 VA left knee X-ray was found to be normal. An August 2002 VA treatment note indicated that knee flexion and extension were found to be within normal limits; specific range of motion measurements were not detailed. Valgus, varus, Anterior drawer, Posterior sag and McMurray tests were found to be "intact" bilaterally. Anterior knee pain with palpation under the joint line on the left was noted. The provider noted that the Veteran was not showing any functional limitations and did not have acute pain that can be treated. A February 2003 VA treatment note indicated that right knee range of motion was "full" with pain; specific range of motion measurements not provided. A December 29, 2003 VA bilateral knee X-ray found slight degenerative changes in both patellar compartments. A November 2010 VA examination report reflected the Veteran's complaints of chronic knee pain, brief episodes of "giving out" an average of once per month and that the top of both knees ached when ascending a flight of stairs or walking down a ramp. Inflammatory symptoms such as heat, swelling or redness were denied. Physical examination found both knees to be "normal in all maneuvers" with full weight-bearing without swelling or palpable tenderness. Extension was found to be to zero degrees and flexion was found to be to 140 degrees, bilaterally, without pain at the endpoints of range of motion maneuver. Repetitive testing revealed no additional loss of range of motion due to pain, fatigability, weakness, lack of endurance or loss of coordination. There was no ligament laxity found and the medial and lateral ligaments were found to be normal. Lachman test was found to be normal with no movement and the anterior and posterior drawer signs were negative. Chondromalacia patella testing was found to be "stable to stress testing on all planes." Crepitation or grinding sensation was not found on compression of either patella. A knee X-ray showed no evidence of fracture, dislocation, arthritis, chondrocalcinosis or joint effusion. A diagnosis of mild chondromalacia patella was made. An August 2011 VA treatment summary reflected the Veteran's reports of being involved in a motor vehicle accident two days ago in which he, while operating a motorcycle, had been struck by a taxi on the right side. Examination of the knees found the right knee to be reddened but was negative for swelling, hematomas or visible bruises. A bilateral knee X-ray found a slight narrowing of the medial joint space on the right without other arthritic changes. A December 2011 VA bilateral knee X-ray found severe degenerative changes with the sharpening of the margins of the patella on both sides and minimal joint effusion bilaterally. A June 2012 VA treatment note indicated that there was mild crepitus present in the Veteran's knees bilaterally and noted that range of motion was from zero degrees to 130 degrees. There was moderate medial and lateral joint line tenderness present while the knees were stable to varus-valgus, anterior drawer, posterior drawer and Lachman testing. An accompanying X-ray revealed minimal joint space narrowing. During a July 2012 hearing, the Veteran testified that he did not wear knee braces and that his knee symptoms were usually "about the same" in both knees but that sometimes one was worse than the other. His range of motion was limited and he was sometimes able to move it but sometimes was unable to do so. He used Ibuprofen and knee injections for the pain and underwent physical therapy for his symptoms. Other symptoms included knee cracking, weakness and instability or "giving out." A July 2012 VA treatment note reflected the Veteran's complaints of constant bilateral knee pain, with the right worse than the left. McMurray and Drawer tests were negative bilaterally while Apley's compression was noted to be positive on the right with slight pain on internal rotation. An assessment of bilateral knee segment dysfunction with degenerative joint disease was made. A February 2013 VA examination report reflected the Veteran's complaints of bilateral anterior knee pain that increased with the use of stairs, walking two blocks, squatting and standing from sitting. The use of assistive devices was denied. Physical examination revealed tenderness or pain to palpation for joint line or soft tissues of both knees. Right knee flexion was found to be to 140 degrees or greater with pain beginning at 130 degrees and extension was found to be to zero degrees with pain beginning at zero degrees. Left knee flexion was found to be to 140 degrees or greater with pain beginning at 130 degrees and extension was found to be to zero degrees with pain beginning at zero degrees. Repetitive motion testing revealed no further limitation to range of motion and the examiner noted that the Veteran's functional loss was due to pain on movement, disturbance of locomotion and interference with sitting, standing and weight-bearing. Lachman test (anterior instability), Posterior drawer test (posterior instability) and medial-lateral instability were found to be normal bilaterally. There was no evidence or history of recurrent patellar subluxation/dislocation and the Veteran was noted to have no history of meniscal conditions or surgical procedures or a meniscal condition. An accompanying X-ray revealed right knee degenerative or traumatic arthritis. A February 2013 VA treatment note indicated that the Veteran had a normal gait, that there was no swelling or redness of knees present and that there was tenderness along the patellar area. Range of motion was noted to be full but specific range of motion measurements were not detailed. Crepitus and laxity were not found on examination and McMurray test was noted to be negative. An assessment of stable bilateral osteoarthritis of the knees was made. With regards to instability under Diagnostic Code 5257, the Veteran has generally reported instability and that his knees gave way. Objective examination found his knees to be stable, without laxity, in October 2001 and June 2012. Valgus, varus, Anterior drawer, Posterior sag and McMurray tests were found to be intact bilaterally in August 2002; similarly, Lachman and posterior drawer tests as well as medial-lateral instability were found to be normal bilaterally in February 2013. Lachman's test was found to be normal or negative in July 2010 and November 2010 and the anterior and posterior drawer signs were found to be negative in November 2010. A February 2002 VA treatment note only indicated mild laxity of the Veteran's left knee. Thus, objective examinations prior to this finding (i.e. October 2001) and subsequent to the finding (i.e. August 2002, November 2010, June 2013 and February 2013) revealed no such laxity. In addition, while the Veteran has generally reported knee instability, he has also denied using a knee brace and the clinical evidence suggests that he does not use any assistive devices for his knees. No X-rays of the knees above showed any evidence of fracture or dislocation. Moreover, the clinical evidence was negative for recurrent subluxation and the Veteran has not alleged such symptoms. Thus, at most, the Veteran has objectively demonstrated intermittent mild laxity. A rating in excess of 10 percent is therefore not warranted. 38 C.F.R. § 4.71a, 5257. As regards to limitation of motion under Diagnostic Codes 5260 and/or 5261, the evidence shows that the Veteran's service-connected right and left knee disabilities were manifested by extension to zero degrees and flexion to 130 degrees, at worst. Such findings do not support the minimum, compensable rating under either diagnostic code. In addition, and as noted, VA may consider any demonstrated functional loss attributable to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, in conjunction with criteria under the rating formula. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-7; Johnson, 9 Vet. App. 7. In this regard, the Board recognizes that during his February 2013 VA examination, the Veteran reported knee pain and that there was objective evidence of pain found on range of motion testing but without additional limitation of motion. Nonetheless, given the extent of right and left knee motion demonstrated by the Veteran at his VA examinations and during clinical treatment, the overall level of disability demonstrated by the Veteran is not commensurate to a loss of flexion to 45 degrees or less or a loss of extension to 10 degrees or more, even after taking reported pain into consideration. Moreover, to the extent that pain was reported by the Veteran after repetitive motion testing at his VA examinations, the VA examiner noted that the Veteran did not demonstrate any further loss of motion or function due to such symptoms. In view of the foregoing, even after taking the factors identified in DeLuca into consideration, the Board finds that, for the period under consideration, a rating in excess of 10 percent cannot be granted for the right or left knee on the basis of limited motion. Pain itself does not constitute functional loss, and painful motion does not constitute limited motion for the purposes of rating under Diagnostic Codes pertaining to limitation of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss. Id. This is not the case here to the degree warranting a rating in excess of 10 percent. Moreover, the post-service radiological studies, treatment notes and the VA examination report simply do not reflect objective findings of ankylosis in either knee, or any suggestion that the Veteran effectively experiences ankylosis in either knee. The Board is cognizant that the VA General Counsel has held that a claimant who has arthritis (resulting in limited or painful motion) and instability of a knee may be rated separately under Diagnostic Codes 5003 and 5257, however, cautioning that any such separate rating must be based on additional disabling symptomatology. See VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). Evaluation of the same manifestations under different diagnoses, or "pyramiding", is precluded by 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). Separate ratings may be granted only when "none of the symptomatology for any one of [the claimed conditions] is duplicative of or overlapping with the symptomatology of the other ... conditions." Esteban v. Brown, 6 Vet. App. 259, 262 (1994). On December 29, 2003, the record revealed x-ray evidence of slight degenerative changes in both knees. Such arthritis, however, does not result in additional symptomatology. A claimant would have additional disability justifying a separate rating if there is limitation of motion under DC 5260 (limitation of flexion of the leg) or DC 5261 (limitation of extension of the left). VAOPGCPREC 9-98. There is no additional disability based on limitation of motion if the claimant does not at least meet the criteria for a zero-percent rating under DC 5260 or DC 5261. Id. The criterion for a zero-percent rating under DC 5260 is flexion limited to 60 degrees. The criterion for a zero-percent rating under DC 5261 is extension limited to 5 degrees. The medical evidence of record shows that the Veteran's right and left knee chondromalacia with genu varus results in reduced range of motion of extension to no more than zero degrees and flexion to no less than 130 degrees. As such, the Veteran does not at least meet the criteria for a zero-percent rating under DC 5260 or DC 5261 and so may not be assigned separate ratings for arthritis. Crucially, the Board further observes that in a prior October 1995 decision, the Board noted that the Veteran only demonstrated a slight loss of flexion on range of motion (135 degrees), and slight instability demonstrated on one occasion. The Board, however, recognized 38 C.F.R. §§ 4.59 and 4.40 and observed that there was probative evidence that the Veteran experienced pain on motion, and that he had a moderate degree of crepitation in his knees on motion and mild impairment of knee joint function which the Board maintained were objective signs of periarticular pathology. Accordingly, the Board found that the Veteran was entitled to compensable ratings (10 percent) for each knee. The evidence reflects that the Veteran continues to manifest essentially the same symptoms. As noted above, the medical evidence shows that the Veteran's knees are productive of pain, reduced range of motion, including extension to no more than zero degrees and flexion to no less than 130 degrees, grinding of the chondromalacia on the patella, crepitus, intermittent mild laxity, and x-ray evidence of arthritis that does not result in additional separate disability. Thus, there is no basis to assign higher ratings under Diagnostic Codes 5257, 5260, 5261, and 38 C.F.R. § 4.40, 4.45, and 4.59. The Board also finds that no other diagnostic code provides a basis for any higher or alternative rating for the right or left knee. There are no objective medical findings of, and the Veteran has not alleged, ankylosis, locking, impairment of the tibia or fibula, genu recurvatum or a meniscal condition. In the absence of such findings, evaluating either of the Veteran's right or left knees under Diagnostic Codes 5256, 5258, 5259, 5262, or 5263 is not warranted. See 38 C.F.R. 4.71a. Moreover, the disability was not shown to involve any other factor(s) that would warrant evaluation of the disability under any other provision(s) of the rating schedule for this period. The Veteran is competent to report on symptoms and credible to the extent that he may believe that the severity of his right or left knee disorders is reflective of a higher degree of compensation level. His competent and credible lay evidence, however, is outweighed by competent and credible medical evidence that evaluates the true extent of the knee impairment based on objective data coupled with the lay complaints. In this regard, the Board notes that the VA examiners and clinicians have the training and expertise necessary to administer the appropriate tests for a determination on the type and degree of the impairment associated with the Veteran's complaints. For these reasons, greater evidentiary weight is placed on the examination findings in regard to the type and degree of impairment. The examination and clinical findings show that the current 10 percent rating assigned under Diagnostic Code 5299-5257 is appropriate. C. Other Considerations Additionally, the Board finds that at no pertinent point have the left and right knee impairments been shown to be so exceptional or unusual as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disabilities at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, supra. In this case, the Board finds that the applicable schedular criteria are adequate to rate the left and right knee impairments at all points pertinent to these appeals. The Veteran primarily complains of pain, instability, and limitation of motion. The Veteran has not described any exceptional or unusual features of his right and left knee disability. The rating schedule fully contemplates the described symptomatology, and provides for ratings higher than that assigned based on more significant functional impairment. Significantly, there is no medical indication or argument that the applicable criteria are otherwise inadequate to rate the right and left knees. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Finally, the Board is aware that a request for a total disability rating due to individual employability resulting from service-connected disability (TDIU), whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, when entitlement to TDIU is raised during the appeal of a rating for a disability, it is part of the claim for benefits for the underlying disability. Id. at 45. In the present case, however, the Board finds that neither the Veteran's contentions nor the medical findings of record raise a TDIU claim. The Veteran has not specifically contended, and the record does not otherwise suggest, that he is unemployable solely due to his service-connected right and left knee disabilities. The record shows that the Veteran was awarded SSA benefits in April 1994 due to a psychiatric disorder. In addition, the March 2011 VA examiner determined that none of the Veteran's medical conditions, including his service connected right and left knee disabilities, interfered with his ability to continue employment and the March 2013 VA examiner determined that the Veteran's knee conditions would have no impact on his ability to work. For these reasons, the Board finds that a claim for TDIU has neither been raised by the Veteran nor by the record in regard to the rating issue before the Board. III. Secondary Service Connection The Veteran has raised the issue of entitlement to service connection for alcoholism secondary to an acquired psychiatric disorder. Pursuant to 38 U.S.C.A. §§ 105, 1110, and 1131 (West 2002), "no compensation shall be paid if the disability is the result of the person's own willful misconduct or abuse of alcohol or drugs." Willful misconduct is defined as "an act involving conscious wrongdoing or known prohibited action." It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. Willful misconduct will not be determinative unless it is the proximate cause of injury, disease, or death. See 38 C.F.R. § 3.1(n) (2013). Alcohol use is considered willful misconduct where one deliberately drinks a beverage to enjoy its intoxicating effects, and intoxication results proximately and immediately in disability or death. See 38 C.F.R. § 3.301(c)(2) (2013). Similarly, the progressive and frequent use of drugs to the point of addiction is considered willful misconduct. Where drugs are used to experience their effects, and the effects result proximately and immediately in disability, the disability is considered the result of willful misconduct. See 38 C.F.R. § 3.301(c)(3) (2013). But, diseases or disabilities that are a secondary result of chronic alcohol or drug use are not considered to be of willful misconduct origin. 38 C.F.R. § 3.301(c)(2), (c)(3) (2013). In Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001), overruling Barela v. West, 11 Vet. App. 280 (1998), the Federal Circuit Court held that veterans can only recover for an alcohol or drug abuse disability secondary to a service-connected disability if they can adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disability. Compensation would only result where there is clear medical evidence establishing that the alcohol or drug abuse disability is indeed caused by a veteran's primary service-connected disability. The law of the case primarily concerns situations where the veteran has a service-connected psychiatric disorder and is attempting to receive additional compensation, etcetera, for his alcohol and/or drug abuse on the premise that it was proximately due to or the result of his service-connected psychiatric disability. The converse of this, however, is not sustainable where he has abused alcohol and/or drugs and wants compensation for it as the primary condition - as opposed to the secondary residual. Here, service connection is in effect for a bipolar disorder. Based on a review of the claims file, the examiner found that the Veteran's alcohol dependence, in reported full remission, was not secondary to service connected bipolar disorder. The examiner recognized that service connection was in effective for bipolar disorder but in his opinion, the Veteran did not currently meet the full DSM-IV diagnostic criteria for bipolar disorder. The examiner maintained that the Veteran's alcohol dependence appeared to be unrelated to his Axis I mental health conditions. As such, the Veteran's alcohol dependence was not caused by or aggravated by the Veteran's service connected bipolar disorder. The examiner maintained that the Veteran's personality disorder traits on Axis II appeared to significantly negatively impact on his interpersonal functioning to a greater degree than his mood disorder symptoms. The examiner observed that the Veteran was administered the Minnesota Multi Phasic Personality Inventory-2 (short form) which provided a valid profile. His responses suggested that he tended to develop physical symptoms or complaints when under stress. When his stress was alleviated, the physical complaints would disappear, only to reappear when he once again experienced stress. The examiner maintained that the Veteran might have secondary gain involved with his complaints. When physical symptoms appeared, they were relatively restricted and specific both in location and nature and typically involving pain in the extremities or the head. The examiner noted that the Veteran might experience some anxiety and nervousness which were not controlled by his somatic preoccupations. When the Veteran experienced emotional reactions, they were likely to be of short duration and expressed by emotional lability. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether there is clear medical evidence establishing that an alcohol disability is indeed caused or aggravated by the Veteran's primary service-connected bipolar disability falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (providing that lay persons not competent to diagnose cancer). Here, the VA examiner found that the Veteran does not have an alcohol disability that was caused or aggravated by his service connected bipolar disorder. There is no competent medical opinion to the contrary. Accordingly, secondary service connection for alcoholism is not warranted. ORDER An increased rating for right knee chondromalacia patella with genu varus, currently rated as 10 percent disabling, is denied. An increased rating for left knee chondromalacia patella with genus varus, currently rated as 10 percent disabling, is denied. Service connection for alcoholism as secondary to an acquired psychiatric disorder, to include PTSD, depression, and bipolar disorder is denied. REMAND The Veteran contends that he is entitled to a higher or a separate rating for symptoms related to his service-connected residuals of a varicocelectomy, to include both internal symptoms (i.e. testicular pain and a left varicocele) and external symptoms (i.e. a scar). In its February 2013 remand, the Board instructed the AMC to consider whether a separate evaluation for the Veteran's service-connected residuals of a varicocelectomy was warranted under alternative diagnostic codes in the first instance. The Board notes that this disability is currently rated under the diagnostic code for unstable or painful scars. However, in the May 2013 SSOC, the AMC considered only whether a higher rating was warranted under the diagnostic code for scarring. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall, supra. On remand, such consideration should be conducted. Accordingly, the case is REMANDED for the following action: 1. As the Board instructed in the prior February 2013 Remand, in regards to the claim for an increased rating for residuals of a varicocelectomy with left cremasteric muscle function loss, orchialgia and scar, and in light of the suggested external and internal symptoms, including a left varicocele found on scrotal sonography in 2011, the AMC/RO should consider whether a separate evaluation is warranted under alternative diagnostic codes in the first instance. 2. Thereafter, readjudicate the claim. If the benefits sought on appeal remain denied, the Veteran and his representative should be issued a supplemental statement of the case, and be given an opportunity to respond before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on 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). ______________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs