Citation Nr: 1335225 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 09-44 974 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, other than posttraumatic stress disorder (PTSD). 2. Entitlement to a disability evaluation in excess of 10 percent for service connected status post anterior cruciate ligament reconstruction of the right knee with degenerative joint disease prior to February 15, 2012 and in excess of 20 percent as of February 15, 2012. 3. Entitlement to a disability evaluation in excess of 10 percent for service connected degenerative arthritis of the left knee. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from August 1986 to January 2000. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, as well as a September 2012 rating decision of the Appeals Management Center in Washington, D.C. The Veteran testified before the undersigned Veterans Law Judge at a May 2011 Travel Board hearing, and a transcript of this hearing is of record. In December 2011, the Board remanded the issues of entitlement to an increased disability evaluation for the Veteran's service connected right knee disability, left knee disability, and hypertension to the RO via the Appeals Management Center (AMC) in Washington, D.C. for additional development, to include VA examinations. In December 2011, the Board also denied the issue of entitlement to service connection for PTSD. In a June 2012 Order, the United States Court of Appeals for Veterans' Claims (Court) granted a Joint Motion for Remand by both parties and remanded the issue for the Board to consider whether the Veteran was entitled to service connection for a psychiatric disability other than PTSD. (The Court did not vacate the Board's decision denying service connection for PTSD.) In March 2013, the Board denied the Veteran's claim for hypertension and remanded the matter of increased ratings for knee disabilities and service connection for an acquired psychiatric disability (other than PTSD) to the RO via the Appeals Management Center (AMC) in Washington, D.C. to afford the Veteran VA medical examinations and obtain vocational rehabilitation records. The action specified in the March 2013 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran's acquired psychiatric disability did not have onset in service and was not caused or permanently aggravated by the Veteran's active military service. 2. The Veteran's right knee disability did not result in extension limited to at least 10 degrees, flexion limited to at least 15 degrees, ankylosis, severe recurrent subluxation or lateral instability, dislocation of the semi-lunar cartilage, impairment or the tibia and fibula, or genu recurvatum for any period on appeal. Prior to February 15, 2012, the Veteran's right knee disability did not result in flexion limited to at least 30 degrees. 3. The Veteran's left knee disability did not result in extension limited to at least 10 degrees, flexion limited to at least 30 degrees, ankylosis, severe recurrent subluxation or lateral instability, dislocation of the semi-lunar cartilage, impairment or the tibia and fibula, or genu recurvatum for any period on appeal. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acquired psychiatric disability, other than PTSD, have not been met. 38 U.S.C.A. §§ 101, 1112, 1131 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 2. The criteria for entitlement to a disability evaluation in excess of 10 percent for service connected status-post anterior cruciate ligament reconstruction of the right knee with degenerative joint disease prior to February 15, 2012 and in excess of 20 percent as of February 15, 2012 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.321 , 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5055, 5256-5263 (2013). 3. The criteria for entitlement to a disability evaluation in excess of 10 percent for service connected degenerative arthritis of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5055, 5256-5263 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). However, in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic by 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). For disabilities that are not listed as chronic, the only avenue for service connection is by showing in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). The Veteran's depressive disorder and substance abuse disorders are not considered chronic diseases under 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). However, no compensation shall be paid if the disability resulting from injury or disease in service is a result of the Veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. §§ 105, 1131 (West 2002). Direct service connection may be granted only when a disability or cause of death was incurred or aggravated in line of duty, and not the result of the Veteran's own willful misconduct. 38 C.F.R. § 3.301 (2013). "Willful misconduct" means an act involving conscious wrongdoing or known prohibited action. An action will be willful misconduct if it involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. However, a 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. 38 C.F.R. § 3.1(n)(2013). A service department finding that injury, disease or death was not due to misconduct will be binding on VA unless it is patently inconsistent with the facts and the requirements of laws administered by VA. Id. VA regulations also state that no compensation shall be paid if a disability is the result of alcohol abuse. An injury or disease incurred during active military, naval, or air service shall not be deemed to have been incurred in the line of duty if such injury or disease was a result of the abuse of alcohol or drugs by the person on whose service benefits are claimed. 38 C.F.R. § 3.301(a). For the purpose of this regulation, alcohol abuse means the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user; drug abuse means the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or non-prescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects. 38 C.F.R. § 3.301(d); see also 38 U.S.C.A. § 105 (West 2002); 38 C.F.R. § 3.1(m). Furthermore, VA's General Counsel has ruled that direct service connection for a disability which results from a claimant's own abuse of alcohol or drugs is precluded for purposes of all VA benefits where, as here, the claim was filed after October 31, 1990. See VAOPGCPREC 7-99, 64 Fed. Reg. 52375 (1999); VAOPGCPREC 2-98, 63 Fed. Reg. 31263 (1998). The Veteran is seeking entitlement to service connection for an acquired psychiatric disability, other than PTSD. The Veteran has claimed that he was a bystander upon the U.S.S. Elmer Montgomery in the Persian Gulf on 3 July 1988 when Iranian Air Flight 655 was mistakenly shot down by the U.S.S Vincennes. The Veteran claims that since that time, he has suffered from depression and anxiety, which he has self medicated with substance abuse. The Veteran's service treatment records are negative for any complaints of or treatment for an acquired psychiatric disability. On a Report of Medical History completed in June 1999, the Veteran denied suffering from any mental health related issues, including depression or excessive worry, nervous trouble of any sort, and frequent trouble sleeping. No acquired psychiatric disability was noted on the physical examination completed at that time or at any of the other period examinations throughout the Veteran's period of service. Additionally, his service personnel records were reviewed and there is no evidence of any changes in behavior or job performance after July 1988. While the Veteran was given a non-judicial punishment for a period of AWOL, this occurred in April 1987, prior to the July 1988 incident the Veteran claims caused his current psychiatric symptoms. The Veteran first sought help from VA for his alcohol and marijuana use in August 2003. At his initial mental health evaluation, he claimed he was suffering from symptoms of guilt and depression secondary to the Vincennes accident and that he had been diagnosed with PTSD by a private counselor. He reported that he began drinking and using marijuana at the age of 16, but increased his substance abuse following his separation from service. The Veteran was diagnosed with PTSD and alcohol dependence. See VA Psychiatry Outpatient Note (August 20, 2003). In connection with this claim, the Veteran underwent a December 2007 VA Compensation and Pension examination by a psychiatrist. He reported having undergone some recent mental health treatment for which he received anti-manic and anti-anxiety medication. Since then, he has experienced improved mood. The Veteran described some difficulties with family and problems with his ex-wife; however, he was now engaged and had friends. He denied any history of suicide attempts, and noted that he was doing fairly well. There was improved social function since he was going to school and had a fiancé. The Veteran did report some problems with sleep impairment, specifically frequent awakenings. At the time of the examination, the Veteran was not employed, due to a physical condition involving his knees. On examination, the Veteran's general appearance was clean, and psychomotor activity and speech were unremarkable. Affect was normal and mood was good. The Veteran was well-oriented. Concentration and memory were unimpaired. Thought process and content were unremarkable, with no delusions or hallucinations. Judgment and insight were intact. There was no obsessive/ritualistic behavior, panic attacks, homicidal thoughts, or suicidal thoughts. Extent of impulse control was fair, though with some history of episodes of violence associated with alcohol abuse. Otherwise, there was no inappropriate behavior. As to whether there were characteristic PTSD symptoms, there was no persistent re-experiencing of the traumatic event. There was some difficulty falling or staying asleep. The Veteran reported he was more isolated following the claimed in-service stressor, with irritability, sadness, and related mood issues. The diagnosis given was alcohol dependence, in full remission; and depressive disorder, not otherwise specified (NOS). According to the VA examiner, the Veteran did not meet the DSM-IV criteria for a diagnosis of PTSD. A Global Assessment of Functioning (GAF) score was assigned of 70. The examiner explained that under the DSM-IV criteria, and utilizing clinical experience and training, the Veteran did not have PTSD. It was noted that more than anything, the Veteran's substance use was significant. Additionally, he had some depressive symptoms that were improved with antidepressants. The VA examiner noted review of the claims file in making this determination. Also, according to the examiner, some of the Veteran's responses to the examiner's diagnostic testing for a mental health disorder appeared to show exaggeration. The examiner did not opine whether the Veteran's depressive disorder and alcohol dependence were related to his military service. The Veteran was afforded a new VA examination in June 2013. The Veteran reported current symptoms of depression and anxiety, but stated that he was taking Paxil, and "it's been working." He reported that the medication makes him calmer and has ended his nightmares. He reported occasional panic attacks. He was divorced and denied any significant relationship at the time of the interview, but reported that he had a good relationship with his three children and his family, who he described a "good support system." He was attending school and expected to graduate in December 2014. He reported that he mostly goes to church and school and rarely participates in social activities that he previously enjoyed. The Veteran reported that he had been arrested in 2002 for domestic violence and in 2002 and 2006 for DUIs, but he denied any current substance abuse or legal problems. At the examination, the Veteran was clean and neatly groomed. He was well oriented and his affect was appropriate. His mood was reserved. There was no evidence of any thought disorder or perceptual disturbance. His memory, attention, and concentration appeared within normal limits. Judgment and insight were considered good. He denied any current suicidal or homicidal ideations. He denied any problems performing activities of daily living. The Veteran was diagnosed with depressive disorder, not otherwise specified, in partial remission; alcohol dependence, in full, sustained remission; and cannabis abuse, in full, sustained remission. The examiner concluded that the Veteran's symptoms were not severe enough to either interfere with occupational and social functioning or to require continuous medication. The examiner further opined that the Veteran's acquired psychiatric disabilities were less likely than not caused by or related to the Veteran's active military service. The examiner noted that although the Veteran claimed that his disability began July 1988, service personnel records show that he consistently met or exceeded job performance standards through his separation in 2000 and his service treatment records are negative for any evidence of a psychiatric condition during his military service. The examiner further noted that medical studies have established a relationship between both alcohol and cannabis abuse and depression, and that the evidence of record establishes that the Veteran's substance abuse began as a teenager, prior to his military service. The examiner suggested that the Veteran's alcohol use may have induced his depression. In support of his claim, the Veteran has submitted statements from a number of family members. The Veteran's former spouse, J.G., reported that starting in 1996, she began to notice changes in the Veteran's behavior. He began drinking heavily and using Tylenol PM to fall asleep. He was verbally abusive to his family members and no longer participated in social activities. He engaged in bizarre and violent behavior. The Veteran's daughter, T.F., also testified that she first noticed a change in her father's behavior in 1996. He stopped attending his children's school functions or going out with them on the weekends. He was sad and depressed and began having nightmares and sleepwalking. The Veteran's mother, B.B., reported that after the Veteran was stationed in Virginia, she began receiving calls from her daughter-in-law, asking for assistance in calming the Veteran down. When she visited him, she observed that he was angry, verbally abusive, paranoid, and distrustful. He was drinking heavily and no longer wanted to spend time with his family. After the Veteran was jailed and totaled his car, he came to live with his mother and she observed a further deterioration in his behavior. He manifested extremes mood swings, drank heavily, and was bitter and verbally abusive until B.B. was able to convince him to seek substance abuse treatment from VA. The Veteran's sister, N.A., testified that following the Veteran's discharge from service, she began noticing uncharacteristic mood swings and behavioral changes. The Veteran was depressed, withdrawn, reclusive, hostile, angry, restless, and paranoid. He had difficulty sleeping and abused alcohol. At his May 2011 Travel Board Hearing, the Veteran estimated that he first started having problems psychologically approximately two years before he got out of service, but that he started drinking more heavily after separation from service. Based on all of the above evidence, the Board finds that entitlement to service connection for an acquired psychiatric disability is not warranted. As noted above, the Veteran's service treatment records are negative for any complaints of or treatment for an acquired psychiatric disability. In fact, shortly before his separation, in June 1999, the Veteran specifically denied suffering from symptoms of an acquired psychiatric disability such as depression or excessive worry, nervous condition, or frequent trouble sleeping. There is also nothing in the Veteran's service personnel records to show that he had disciplinary or job performance problems after July 1988 which might indicate psychiatric problems. Post-service, the Veteran did not seek treatment for any psychiatric problems until 2003, three years after separation from service. Additionally, in June 2013, a VA psychologist reviewed all of the evidence of record and concluded that it is less likely than not that the Veteran's current acquired psychiatric disabilities were caused by or permanently aggravated by the Veteran's active military service, providing highly probative evidence against the Veteran's claims. Even the Veteran's sister has provided evidence against the Veteran's claim, reporting that she first observed a change in the Veteran's behavior after he separated from service. Furthermore, while the Veteran's former spouse, daughter, and mother place the onset of his disability in service, none of the Veteran's family places onset of his symptoms earlier than 1996, approximately eight years after the incident that the Veteran's alleges has caused his current psychiatric disabilities. The considerable length of time between the Veteran's alleged in-service stressor and when he first manifest symptoms of a psychiatric disability undermines the Veteran's claims of a causal connection between the two. See Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000) (holding that it was proper to consider the veteran's entire medical history in determining if service-connection is warranted, including a lengthy period of absence of complaints). Additionally, based on the testimony of the Veteran's family, his psychiatric problems appear to coincide with a period of heavy alcohol use, providing support for the VA examiner's theory that the Veteran's depression is secondary to a long history of alcohol abuse. While the Veteran himself has testified that the he first felt that something was wrong psychologically in service, his testimony is contradicted by his service treatment records, which show that he explicitly denied suffering from any psychiatric symptoms on multiple occasions during his period of service. In this case, the Board finds that the contemporaneous medical evidence has greater probative value than history as reported by the Veteran and his family. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). While the Board is often prohibited from finding lay evidence not credible on the sole basis of a lack of contemporaneous medical records, the Board notes that this is not a case where the Veteran's service treatment records are silent concerning whether he suffered from an acquired psychiatric disability in service. On Reports of Medical Examination administered during the Veteran's service, he affirmed that he was not suffering from the symptoms of a psychiatric disability. Accordingly, the Board finds that the Veteran's current assertions that his acquired psychiatric disability had onset in service are simply not credible. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest may affect the credibility of a claimant's testimony). Finally, even assuming, solely for the sake of argument, that the Veteran's acquired psychiatric disability had onset in service, the Board finds that the preponderance of the evidence supports a finding that the Veteran's depressive disorder developed secondary to his alcohol and cannabis abuse and VA regulations state that no compensation shall be paid if a disability is the result of drug or alcohol abuse. For all the above reasons, entitlement to service connection for an acquired psychiatric disability is denied. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R., Part 4 (2013). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2013). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function, will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding the veteran's increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 22 Vet. App. 505 (2007), and whether the veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. In Fenderson, the U.S. Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. In that decision, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126. Hart appears to extend Fenderson to all increased rating claims. In a June 2000 rating decision, the Veteran was granted entitlement to service connection for degenerative arthritis of the left knee and status post anterior cruciate ligament construction of the right knee. The Veteran was assigned an initial 10 percent disability ratings for both knee disabilities, effective January 2000. In February 2007, the Veteran submitted the increased rating claim currently before the Board. In a December 2007 rating decision, the RO denied the Veteran's claim. In September 2012, the RO increased the Veteran's right knee disability to 20 percent disabling, effective February 15, 2012, based on limitation of flexion. The RO also assigned a separate, non-compensable (0 percent) disability rating for limitation of extension of the right knee. Diagnostic Code 5010 directs that traumatic arthritis substantiated by x-ray findings should be rated as degenerative arthritis under Diagnostic Code 5003. Under Diagnostic Code 5003, 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 non-compensable, 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 Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 20 percent evaluation is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. A 10 percent evaluation is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under Diagnostic Code 5257, which rates impairment based on recurrent subluxation or lateral instability of the knee, a 10 percent rating will be assigned with evidence of slight recurrent subluxation or lateral instability; 20 percent rating will be assigned with evidence of moderate recurrent subluxation or lateral instability; and a 30 percent rating will be assigned with evidence of severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6. Under Diagnostic Code 5258, dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint will be rated as 20 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Under Diagnostic Code 5259, removal of semilunar cartilage that is symptomatic will be assigned a 10 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Under Diagnostic Code 5260, a 10 percent rating will be assigned for limitation of flexion of the knee to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the knee to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the knee to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, a 10 percent rating is assigned for extension limited to 10 degrees; a 20 percent disability rating is assigned for extension limited to 15 degrees; a 30 percent disability rating is assigned for extension limited to 20 degrees; a 40 percent disability rating is assigned for extension limited to 30 degrees; and a 50 percent disability rating is assigned for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Full range of motion of the knee is from 0 degrees to 140 degrees in extension and flexion. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5262, malunion of the tibia and fibula with moderate knee or ankle disability will be assigned a 20 percent disability rating, malunion of the tibia and fibula with marked knee or ankle disability will be assigned a 30 percent disability rating, and nonunion of the tibia and fibula with loose motion, requiring a brace, will be assigned a 40 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5262. The VA Office of General Counsel has stated that compensating a claimant for separate functional impairment under Diagnostic Codes 5257 and 5003 does not constitute pyramiding. VAOPGCPREC 23-97 (July 1, 1997). In this opinion, the VA General Counsel held that a Veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, provided that a separate rating is based upon additional disability. Subsequently, in VAOPGCPREC 9-98 (Aug. 14, 1998), the VA General Counsel further explained that if a Veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also X-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. See also VAOPGCPREC 9-04 (Sept. 17, 2004) (which finds that separate ratings under Diagnostic Code 5260 for limitation of flexion of the leg and Diagnostic Code 5261 for limitation of extension of the leg may be assigned for disability of the same joint). The VA Office of General Counsel has also stated that Diagnostic Code 5259, removal of semilunar cartilage, may result in complications producing loss of motion. As such, limitation of motion is a relevant consideration under Diagnostic Code 5259. VAOPGCPREC 9-98 (Aug. 14, 1998). Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology, and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, painful movement, swelling, deformity, or disuse atrophy. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). At a July 2007 VA orthopedic surgery consultation, the Veteran complained of bilateral knee pain. He reported discomfort with weight bearing of the right knee, as well as morning stiffness and a feeling of giving way. He also described increasing pain in the left knee. He was undergoing vocational rehabilitation because he is unable to return to his previous employment as an electrician. The Veteran walked with a pronounced limp, favoring the right knee. Range of motion of the right knee was from 0 degrees extension to 50 degrees flexion. There was no objective evidence of effusion or instability observed. Range of motion the left knee was noted. However, the Veteran was noted to have some crepitus with movement of the joint. There was no effusion or instability. He had a normal tracking patella. The impression was status post right ACL reconstruction with loss of full range of motion of the right knee and an old lateral hamstring tear in the right thigh, as well as an old left patellar fracture with symptoms of patellofemoral arthritis. In December 2007, the Veteran was afforded a VA examination of his bilateral knee disability. The Veteran complained of pain and weakness, but denied stiffness, swelling, heat, redness, instability, giving way, locking, fatigability, or lack of endurance. He also denied episodes of dislocation or recurrent subluxation. His condition was treated with physical therapy, joint injections, and oral ibuprofen as needed. He did not use any assistive devices. He reported that his disabilities do not affect his occupation as a student or his activities of daily living. He did report some limitation with prolonged walking. On examination, the Veteran's gait and posture were normal. There was no evidence of joint ankylosis, instability, or effusion in either knee. Range of motion of the left knee was from 0 degrees extension to 95 degrees flexion with pain beginning at 60 degrees. There was no additional loss of motion following repetitive testing. Range of motion of the right knee was from 0 degrees extension to 100 degrees flexion, with pain beginning at 60 degrees. There was no additional loss of motion following repetitive testing. The Veteran was diagnosed with moderate, progressive degenerative joint disease of the right knee with old ACL repair with hamstring transfer, traumatic arthritis of the left patella, and tendonitis of the left patella tendon. In March 2010, the Veteran was afforded another VA examination. At that time, the Veteran reported increasing pain, stiffness, and instability in the right knee since his last VA examination. He denied any falls. He was being treated with tramadol, intra-articular injections with Hyalgan, and NSAIDs. While the Veteran complained of pain, stiffness, weakness and instability, he denied deformity, incoordination, giving way, episodes of dislocation or subluxation, episodes of locking, or effusion. He reported that he is able to stand for fifteen to thirty minutes and walk more than 1/4 mile but less than 1 mile. He also reported the intermittent, but frequent use of a brace on the right knee. He described mild to moderate effect of his disabilities on activities of daily living. On examination, the Veteran's gait was antalgic, but there was no evidence of abnormal weight bearing. The Veteran had full range of motion of the left knee, with no objective evidence of painful motion and additional limitation of motion following repetitive testing. Range of motion of the right knee is from 0 degrees extension to 40 degree flexion. There was objective evidence of pain following repetitive motion, but no additional loss of motion. An April 2010 VA orthopedic surgery procedure note ongoing complaints of bilateral knee pain. On examination, the Veteran had range of motion of the left knee from 0 to 130 degrees with crepitation. There were no scars, deformity, or effusion, but there was tenderness to palpation. Valgus and varus stress tests were negative. Motor strength was 4/5 and the patella tracked midline. The Veteran's right knee had a well-healed surgical scar, but no tenderness to palpation. Range of motion was indicated as 70-90 degrees. At his May 2011 Travel Board hearing, the Veteran reported that his right knee is "really shaky" and sometimes it locks up, so he wears a brace. He testified that he has difficulty standing for prolonged periods, walking long distances, and going up stairs. He also stated that he left knee locks when he puts all his weight on it. He complained that he is unable to play with his son because of his disabilities. In February 2012, the Veteran was afforded a third VA examination. He continued to complain of progressively worsening pain in his knees, right greater than left. He described the pain as worsening with prolonged sitting or standing. He reported that he gets injections in his knees every six months at VA which reduce the pain to a bearable level for three or for months. He also takes meloxicam 15mg once daily for chronic pain and two tramadol pills in the morning. He described frequent swelling in his right knee and difficulty sleeping and dressing due to knee pain. He also complained of clicking/popping in both knees and giving way of the right knee on occasion if he does not use a cane. He described flares, primarily triggered by cold and rain front, lasting a few hours to a few days during which he suffers from increased pain and decreased mobility. He regularly uses a right knee brace and constantly uses a cane. On examination, the Veteran has range of motion of the right knee from 5 degree extension to 20 degrees flexion with pain throughout the range of motion. Range of motion of the left knee is from 0 degrees extension to 100 degrees flexion, with pain at the endpoint. The Veteran was unable to perform repetitive testing of the right knee due to pain. Repetitive testing of the left knee did not result in additional loss of motion. Muscle strength was decreased to 4/5 in the right knee. There was no anterior or posterior instability of either knee joint. There was no medial lateral instability of the left joint. The examiner was unable to test the right knee joint. There was no evidence or history of patellar subluxation or dislocation bilaterally or any meniscal condition. There was tenderness to palpation, primarily along the lateral collateral ligament of the right knee. The examiner observed that the Veteran had great difficulty putting on his right shoe and constantly held his right leg in approximately 30 degrees flexion even at rest. A January 2008 MRI of the left knee showed effusion and probable healed fracture of the patella. A July 2007 MRI of the right knee showed status post anterior cruciate repair and degenerative changes. The examiner noted that the Veteran's bilateral knee condition does not significantly interfere with the Veteran's school attendance, but that in terms of full time employment, his condition would have a mild to moderate effect. The Veteran has to change positions frequently; is unable to stand for more than ten minutes at a time; cannot squat, climb, or lift more than 10 pounds for a short distance. The Board has also reviewed the Veteran's VA outpatient treatment records which show ongoing treatment for bilateral knee pain, including periodic injections, as well as the Veteran's Vocational Rehabilitation records. Based on all the above evidence, the Board finds that a higher disability rating cannot be granted for either the right or left knee disabilities for any period on appeal. Regarding the Veteran's left knee disability, he has not has extension limited to 10 degrees or flexion limited to less 45 degrees for any period on appeal. Therefore, a compensable disability for limitation of motion cannot be assigned under Diagnostic Codes 5260 or 5261. Furthermore, while he has reported subjective complaints of giving way, there is no objective evidence of instability or recurrent subluxation. Therefore, a separate disability rating for instability of the left knee is no warranted under Diagnostic Code 5257. The Veteran also has no ankylosis, dislocated semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum, so a disability rating under those diagnostic codes is not appropriate. See 38 C.F.R. § 4.71a, Diagnostic Codes 5265, 5258, 5262, 5263. The Board therefore finds that the Veteran's left knee symptoms including pain, stiffness, swelling, and loss of motion are most appropriately assigned a 10 percent disability rating under Diagnostic 5003, which rates arthritis where limitation of motion is non-compensable but there confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Regarding the Veteran's right knee, before February 15, 2012, the Veteran's right knee disability did not result in flexion limited to 30 degrees or less or extension limited to ten degrees or less. Therefore, a higher disability for limitation of motion cannot be assigned under Diagnostic Code 5260 or 5261. Furthermore, while he has reported subjective complaints of giving way and wears a knee brace on his right knee, there is no objective evidence of instability at his VA examinations. Therefore, a separate disability rating for instability of the right knee is not warranted under Diagnostic Code 5257. The Veteran had no ankylosis, dislocated semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum, so a disability rating under those diagnostic codes is not appropriate. See 38 C.F.R. § 4.71a, Diagnostic Codes 5265, 5258, 5262, 5263. Overall, prior to February 2012, the Veteran's right knee symptoms, including pain, stiffness, swelling, subjective feelings of giving way, and loss of motion are most appropriately assigned a 10 percent disability rating under Diagnostic 5003, which rates arthritis where limitation of motion is non-compensable but there confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. As of February 2012, there is evidence that the Veteran's flexion is limited to less than 30 degrees, but not less than 15 degrees. Thus the Veteran's disability evaluation was increased to 20 percent disability evaluation, based on limitation of flexion under Diagnostic Code 5260. The Veteran still did not manifest compensable limitation of extension or objective evidence of instability. While the Veteran has consistently complained of bilateral knee pain throughout the range of motion during the period on appeal, right much worse than left, here is no objective evidence that this painful motion resulted in additional limited range of motion or other functional impairment not already contemplated by the assigned ratings. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that pain, by itself, throughout a joint's range of motion does not constitute a "functional loss" entitling a claimant to a higher rating under VA regulations that evaluate disability based upon range-of-motion loss in the musculoskeletal system, and concluded that "pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance in order to constitute functional loss." (Internal citations omitted). Thus, absent objective evidence that the Veteran's symptoms of pain, stiffness, and weakness result in compensable limitation of motion, these symptoms are appropriately rated. The Board has carefully reviewed and considered the Veteran's statements regarding the severity of his bilateral knee condition. The Board acknowledges that the Veteran, in advancing this appeal, believes that the right and left knee disabilities on appeal have been more severe than the assigned disability rating reflects. Medical evidence is generally required to address questions requiring medical expertise; lay assertions do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a) (2013); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In this case, however, the competent medical evidence offering detailed, specific determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disabilities on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. Finally, the Board has also considered whether the Veteran's disability warrants referral for extraschedular consideration. To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2013). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, it does not appear that the Veteran has an "exceptional or unusual" disability; he merely disagrees with the assigned evaluation for his level of impairment. In other words, he does not have any symptoms from his service-connected bilateral knee disorder that are unusual or are different from those contemplated by the schedular criteria. The available schedular evaluations for that service-connected disability are adequate. Referral for extraschedular consideration is not warranted. See VAOPGCPREC 6-96. Further inquiry into extraschedular consideration is not required. See Thun, supra. For all the above reasons, entitlement to an increased disability rating for the Veteran's bilateral knee disabilities is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013). The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a 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 & Supp. 2012); 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 or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Board notes that in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), the United States Court of Appeals for Veterans Claims (Veterans Court) clarified VA's notice obligations in increased rating claims. The Federal Circuit recently reversed the Veterans Court's decision in Vazquez-Flores, finding that VA is not required to tailor § 5103(a) notice to individual Veterans or to notify them that they may present evidence showing the effect that worsening of a service-connected disability has on their employment and daily life for proper claims adjudication. For an increased rating claim, section § 5103(a) now requires that the Secretary notify claimants generally that, to substantiate a claim, they must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd sub. nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (holding that notice specific to individual Veterans is no longer required in increased compensation claims). Here, the VCAA duty to notify was satisfied by a July 2007 letter. This letter informed the Veteran of what evidence was required to substantiate his claims, as well as of VA and the Veteran's respective duties for obtaining evidence. The Veteran was also informed of how VA assigns disability ratings and effective dates. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records, as well as VA treatment records. The Veteran submitted was provided an opportunity to set forth his contentions during the May 2011 Travel Board hearing before the undersigned Veterans Law Judge. In this regard, the Board notes that in Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010), the Court held that there are two duties imposed by 38 C.F.R. § 3.103(c)(2), (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked are not impacted by the Veteran's receipt of letter that complies with VA's duty to notify. In this case, during the Board hearing, testimony was elicited regarding the elements that were lacking to substantiate the claim and the Veteran and his representative demonstrated actual knowledge of this information. The questions posed to the Veteran specifically elicited responses designed to show that the Veteran's understood the criteria necessary to substantiate his claim. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (explaining that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim). Further, a review of the record also reveals no assertion, by the Veteran or his representative, that VA or the undersigned failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any other prejudice in the conduct of the Board hearing. Accordingly, the Veteran is not shown to be prejudiced on this basis. The appellant was afforded a VA medical examination in December 2007, March 2010, February 2012, and June 2013. The examinations are based upon review of the claims folder, and thoroughly discuss the nature and severity of the Veteran's disabilities as well as the functional impairments resulting therefrom. The examiners relied on sufficient facts and data, provided a rationale for any opinions rendered, and there is no reason to believe that they did not reliably apply reliable scientific principles to the facts and data. These examination reports are adequate for rating purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); 38 C.F.R. § 4.2. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to service connection for an acquired psychiatric disability, other than PTSD, is denied. Entitlement to a disability evaluation in excess of 10 percent for service connected status post anterior cruciate ligament reconstruction of the right knee with degenerative joint disease prior to February 15, 2012 and in excess of 20 percent as of February 15, 2012 is denied. Entitlement to a disability evaluation in excess of 10 percent for service connected degenerative arthritis of the left knee is denied. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs