Citation Nr: 1335458 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 07-20 046 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a low back disorder, to include as secondary to service-connected bilateral knee disorders. 2. Entitlement to service connection for a right hip disorder, to include as secondary to service-connected bilateral knee disorders. 3. Entitlement to a disability rating greater than 10 percent prior for patellar tendonitis of the left knee, status post anterior cruciate ligament repair with internal derangement and loss of motion prior to March 7, 2008. 4. Entitlement to a disability rating greater than 20 percent prior for patellar tendonitis of the left knee, status post anterior cruciate ligament repair with internal derangement and loss of motion beginning March 7, 2008. 5. Entitlement to a disability rating greater than 10 percent for patellar tendonitis with mild degenerative changes, right knee. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran served on active duty from October 1984 to April 1989. This matter arises to the Board of Veterans' Appeals (Board) from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which denied service connection for disorders of the low back and right hip, both claimed as secondary to service-connected bilateral knee disorders and also denied increased ratings for the Veteran's patellar tendonitis of the bilateral knees. The Veteran subsequently initiated and perfected an appeal of this rating decision. The Veteran testified before the undersigned Acting Veterans Law Judge at a Travel Board hearing in June 2009. A transcript of this proceeding has been associated with the claims file. During the course of this appeal, the RO issued a March 2008 rating decision which awarded the Veteran increased ratings, to 10 and 20 percent for his right and left knees disabilities respectively, both effective March 7, 2008. However, the Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that a rating decision issued subsequent to a notice of disagreement which grants less than the maximum available rating does not "abrogate the pending appeal." AB v. Brown, 6 Vet. App. 35, 38 (1993). Consequently, these matters remain in appellate status, both prior to and beginning March 7, 2008. The case was before the Board in September 2009, at which time it was remanded for development. In February 2011, VA's Appeals Management Center (hereinafter: AMC) assigned an earlier effective date of July 19, 2005, for the 10 percent right knee schedular rating. The Veteran has continued his appeal for higher ratings. Because the AMC assigned an earlier effective date for the right knee 10 percent schedular rating, the Board has recharacterized the right knee issue on appeal. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The issues of entitlement to service connection for disorders of the back and right hip are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC in Washington, DC. FINDINGS OF FACT 1. For the portion of the appeal period prior to March 7, 2008, the left knee disability was manifested by limited motion in flexion to no worse than 110 degrees with additional functional impairment due to painful motion and weakness; limited motion in extension to no worse than 12 degrees with additional functional impairment due to painful motion and weakness; and, by slight instability with X-ray evidence of arthritis. 2. For the portion of the appeal period beginning March 7, 2008, the left knee disability has been manifested by limitation of flexion to no-worse-than 120 degrees with painful motion and weakness, limited motion in extension to no-worse-than 12 degrees with painful motion and weakness, and slight instability; X-rays continue to show left knee-joint arthritis. 3. Throughout the appeal period, the right knee disability has been manifested by limitation of flexion to no-worse-than 118 degrees, additional functional impairment due to painful motion, no limited motion in extension, and no instability of the right knee joint. CONCLUSIONS OF LAW 1. For the portion of the appeal period prior to March 7, 2008, the criteria for an increased, 20 percent, schedular rating for limited extension of the left knee are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5020, 5261 (2013). 2. For the entire appeal period, the criteria for a separate 10 percent rating for left knee instability are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2013). 3. For the entire appeal period, the criteria for a schedular rating greater than 10 percent for the right knee are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5024, 5260 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2013). Diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. The entire medical history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. "It is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the rating may accurately reflect the elements of disability present." 38 C.F.R. § 4.2 [excerpt]. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations, VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, or incoordination, including during flare-ups. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). 38 C.F.R. § 4.59 addresses painful motion. A portion of § 4.59 states: The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. When § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. See Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (the Board is required to consider all issues raised either by the claimant or reasonably by the record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991) (applicable provisions of law and regulation should be addressed when they are made "potentially applicable through the assertions and issues raised in the record"). Burton v. Shinseki, 25 Vet. App. 1 (2011). Where an increase in disability is at issue, the present level of disability, rather than remote history, is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Court held that where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Increased Rating for the Left Knee for the Period Prior to March 7, 2008 The Veteran seeks a disability rating greater than 10 percent prior to March 7, 2008, for his service-connected left knee disability. The left knee disability, characterized as patellar tendonitis of the left knee, status post anterior cruciate ligament (ACL) repair, with internal derangement and loss of motion, has been rated 10 percent disabling under Diagnostic Code 5020 during the earlier period. Under Diagnostic Code 5020, synovitis is rated according to any resulting limitation of motion of the joint involved. 38 C.F.R. § 4.71a, Diagnostic Code 5020 (2013). The Board will set forth the relevant facts, address disability due to loss of motion of the left knee, and then address other diagnostic codes. The left knee was examined in September 1996 after recovery from a left knee surgery. The left knee's range of motion was zero to 110 degrees, with crepitus, tenderness, and mild laxity. The RO rated this disability 10 percent effective May 1, 1996, under Diagnostic Code 5020. As mentioned in the introduction, the Veteran commenced an appeal of this rating, but did not perfect that appeal. In September 2005, the Veteran reported that his knee disability had worsened. He requested an increased rating. His September 2005 claim warrants a review of treatment reports dated within the year prior to that claim. Of record are VA out-patient treatment reports dated in July 2005 and later. A July 2005 report mentions constant knee pains in both knees and progressively worsening left knee pain since surgery in 1996. The left knee exhibited mild effusion, positive patellar compression test, positive Lachman's test (anterior drawer test for serious knee injury performed at 20 degrees of flexion, Dorland's Illustrated Medical Dictionary 1677 (28th ed. 1994)), medial collateral ligament laxity, positive McMurray's test, and tender joint lines, bilaterally (a positive McMurray's sign/test is a cartilage click during knee manipulation and indicates meniscal injury, Id, at 1679). July 2005 VA X-rays showed spurring at the left knee joint and mild compartment narrowing. The July 2005 left knee assessment was left knee pain, status post ACL reconstruction, with degenerative joint disease, patellofemoral pain, plus ligamentous instability. An August 2005 report notes left knee active range of motion from 10 to 135 degrees. The Veteran could further extend the left knee to 3 degrees with coaxing, that is, "relaxation and encouragement." "1+ excursion" was seen on Lachman's test. Mild medial laxity at 30 degrees of flexion and mild quadriceps atrophy were found. At zero degrees there was no varus or valgus instability. In October 2005, the Veteran submitted a letter from his VA orthopedic surgeon. The VA surgeon wrote that in August 2005, the left knee had shown early degenerative joint disease and a September 2005 magnetic resonance imaging study (MRI) confirmed degenerative joint changes. A February 2006 VA compensation examination report reflects that in his former job the Veteran frequently got into and out of a truck and did a lot of walking. These tasks were becoming more difficult. He had been taking Lortab(r) up to six times per day, for knee pains, but this was causing constipation. The examination report states, "Instability: Yes" at page 4 of the report; however, at page 8, the examiner reported the opposite, that is, "Instability: No" for the left knee. Weakness and swelling at both knee joints were also found. Active and passive left knee range of motion was 10 to 140 degrees. No additional loss of motion on repetitive use was shown. Although left knee crepitus was not shown, "clicks or snaps" were shown. The February 2006 VA compensation examiner also measured the left leg and found it to be 37 inches in length, while the right leg was measured at 36.75-inches; however the examiner then mentioned that the shorter left leg was due not to a leg-length discrepancy, but rather, to an inability to fully extend the left knee. February 2006 X-rays showed metallic hardware in the left knee joint consistent with ACL repair and mild narrowing in the medial compartment and no definite effusion. The left knee diagnosis was mild to moderate degenerative arthritis. The examiner added that weakness, left leg numbness, and reported falls were related to the left knee joint. In June 2007, the Veteran reported in his substantive appeal that his doctor recommended replacing both knee joints. A March 7, 2008, VA compensation examination report is relevant to the rating period that ends on March 6, 2008, because it records the condition of the left knee disability at the end of the earlier rating period. The report reflects that the left knee was stable (yet, later in the report, the examiner measured 5 degrees of lateral movement at the left knee joint). Left knee active and passive ranges of motion were from 12 to 120 degrees, pain-free. Additional limitation of motion after repetitive use was not shown. The examiner measured slight atrophy of the left thigh and left calf muscles and then reiterated, "Veteran's left knee is flexed at 12 degrees, all the time." The examiner found left knee crepitus but no clicks or snaps. Left knee X-rays showed tri-compartment joint narrowing and patella spurring. The left knee diagnoses were status post ACL repair with stable intact graft; degenerative joint disease; left knee flexed at 12 degrees; early chondromalacia patella per MRI; and, 5 degrees of lateral movement. The examiner added that although there is mild lateral movement, there was no evidence of instability or subluxation. In June 2009, the Veteran testified before the undersigned Acting Veterans Law Judge that VA has issued knee braces, which he used occasionally. He testified that he has had continued knee pains, especially at night and that he cannot perform any physical activity due to his knees. He testified that he is self-employed as a restaurateur, but does not do any physical labor. Turning to the rating or ratings to be assigned to these left knee manifestations, limitation of extension of the leg at the knee (normal extension being to approximately 0 degrees) will be rated as follows: extension limited to 45 degrees is 50 percent. Extension limited to 30 degrees is 40 percent. Extension limited to 20 degrees is 30 percent. Extension limited to 15 degrees is 20 percent. Extension limited to 10 degrees is 10 percent. Extension limited to 5 degrees is 0 percent. 38 C.F.R. §§ 4.71 Plate II, § 4.71a, Diagnostic Code 5261 (2013). Throughout the earlier portion of the appeal period, the service-connected left knee disability was manifested by limitation of extension to no greater than, that is, no-worse-than, 12 degrees with painful motion and weakness. With application of the DeLuca tenets, because pain on use and weakness was shown, the Board will resolve any remaining doubt in favor of the Veteran and find that during the earlier portion of the appeal period, left knee limited motion in extension more nearly approximated limitation of motion to 15 degrees. Therefore, a 20 percent disability rating is warranted for the earlier portion of the appeal period. This 20 percent rating includes consideration of additional disability due to weakness and painful motion. Because the RO has already assigned a 10 percent rating under Diagnostic Code 5020, the Board will therefore grant the appeal for a higher, 20 percent schedular rating under Diagnostic Code 5261. Diagnostic Code 5261 is the appropriate diagnostic code for this left knee disability rating because limited motion in extension is shown, while synovitis is not shown. Where the service-connected knee has both a limitation of flexion and limitation of extension, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. VA's General Council (GC) held that these separate ratings should each take into consideration any additional functional loss due to pain under 38 C.F.R. § 4.40 and DeLuca, and that these separate ratings do not amount to pyramiding under 38 C.F.R. § 4.14. VAOPGCPREC 9-2004. Throughout the earlier portion of the appeal period, the service-connected left knee disability was also manifested by limitation of flexion to no-worse-than 120 degrees, with painful motion and weakness. Under Diagnostic Code 5260, limitation of flexion of the leg at the knee (normal being to approximately 140 degrees) will be rated as follows: Flexion limited to 15 degrees is 30 percent. Flexion limited to 30 degrees is 20 percent. Flexion limited to 45 degrees is 10 percent. Flexion limited to 60 degrees is not compensable. 38 C.F.R. §§ 4.71 Plate II, 4.71a, Diagnostic Code 5260 (2013). Comparing the manifestations to the rating criteria, while limitation of flexion to 120 degrees does not warrant a compensable rating under Diagnostic Code 5260, because the knee joint is a major joint and because X-ray evidence of arthritis and satisfactory evidence of painful motion has been presented, Diagnostic Code 5003 must also be considered. Under Diagnostic Code 5003, degenerative arthritis (hypertrophic or osteoarthritis) when established by X-ray findings is rated on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (Diagnostic Code 5200 etc.). When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, 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. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2013). In this case, limitation of flexion of the left knee is at least 120 degrees which is much greater than the 60 degrees required for a noncompensable rating pursuant to Diagnostic Code 5260. As such, a separate rating for limitation of flexion of the left knee is not warranted. Even with separate schedular rating assigned for limited motion in extension, there still remains a diagnostic code to consider. Where a claimant has arthritis and instability of a knee, separate ratings are authorized under 38 C.F.R. § 4.71a. VAOPGCPREC 23-97. Under Diagnostic Code 5257, slight knee disability due to instability or subluxation warrants a 10 percent rating. Moderate knee instability warrants a 20 percent rating and severe instability warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Left knee instability was shown in July 2005, August 2005, and February 2006, while the evidence for instability becomes more equivocal in March 2008. Reconciling the varying reports into a consistent disability picture (38 C.F.R. § 4.2), slight left knee instability is shown throughout the earlier appeal period. Comparing these manifestations to the rating criteria, the criteria for a separate 10 percent rating for left knee instability are met during the earlier portion of the appeal period. Increased Rating for the Left Knee for the Period Commencing on March 7, 2008 For the period beginning March 7, 2008, the RO has rated the left knee disability 20 percent disabling under Diagnostic Code 5020. The Board finds that Diagnostic Code 5261 is a more appropriate Diagnostic Code for the manifestations shown, as limited extension is the chief manifestation and synovitis is not shown at all. VA out-patient treatment reports during this rating period note chronic left knee pain at various times. The Veteran underwent only one VA compensation examination during this period. That examination was performed on March 7, 2008. The Veteran has not alleged an increase in left knee disability since that time. The March 2008 VA compensation examination report reflects that left knee active and passive pain-free range of motion was from 12 to 120 degrees. Additional motion was painful. The examiner measured slight atrophy of the left thigh and left calf muscles and then reiterated, "Veteran's left knee is flexed at 12 degrees, all the time." The examiner found left knee crepitus. Left knee X-rays showed tri-compartment joint narrowing and patella spurring. As discussed above, the March 7, 2008, VA compensation examination report contains conflicting information concerning left knee instability. The report notes that both knees were stable, yet, also notes 5 degrees of lateral movement at the left knee joint. The March 2008 left knee diagnoses were status post ACL repair with stable intact graft; degenerative joint disease; left knee flexed at 12 degrees; early chondromalacia patella per MRI; and, 5 degrees of lateral movement. From the facts above, the Board concludes that throughout the latter appeal period, the service-connected left knee disability has been manifested by limitation of flexion to no-worse-than 120 degrees, with painful motion and weakness, plus limited motion in extension to no-worse-than 12 degrees with painful motion and weakness, plus slight instability. X-rays continued to show left knee arthritis. As analyzed above, where there is limited motion in extension to 12 degrees and additional functional impairment due to weakness and painful motion, the criteria for a 20 percent rating, and no higher, under Diagnostic Code 5261 are more nearly approximated. During this rating period, however, the RO has already rated the left knee 20 percent. Thus, the preponderance of the evidence is against a schedular rating greater than 20 percent for limited motion in extension for this period. Turning to a separate rating for limited motion in flexion, limitation of flexion of the left knee is at least 120 degrees which is much greater than the 60 degrees required for a noncompensable rating pursuant to Diagnostic Code 5260. As such, a separate rating for limitation of flexion of the left knee is not warranted. Turning to a separate rating for left knee instability, the March 2008 VA compensation examiner offered a confusing picture of left knee instability. The physician specifically reported 5 degrees of lateral movement. But, the examiner also stated that there is no evidence of left knee instability or subluxation. Because 5 degrees of lateral knee movement suggests lateral instability, the Board will resolve any doubt in favor of the Veteran and find the left knee lateral instability has continued during the latter appeal period. Because of X-ray evidence of arthritis of the left knee joint with medical evidence of instability, the criteria for a separate 10 percent rating for left knee instability are met. Increased Rating for the Right Knee The Veteran seeks an increased rating for the right knee, which has been rated 10 percent throughout the appeal period under Diagnostic Code 5024. The disability has been characterized as patellar tendonitis of the right knee with mild degenerative changes. Under Diagnostic Code 5024, tenosynovitis is rated according to any resulting limitation of motion of the joint involved. 38 C.F.R. § 4.71a, Diagnostic Code 5024 (2013). The Board will set forth the relevant facts, address the disability rating to be assigned due to loss of motion of the right knee, and then address other diagnostic codes. A July 2005 report mentions constant knee pains. The July 2005 right knee assessment was pain, rule-out degenerative joint disease, and rule-out torn meniscus. July 2005 VA X-rays showed spurring at the right knee joint and mild compartment narrowing. A July 2005 right knee X-ray assessment was degenerative changes of the patellofemoral compartment. An August 2005 VA out-patient treatment report reflects that the right knee displayed range of motion from zero to 135 degrees with no instability at zero and 30 degrees, but a 1+ excursion on Lachman's test. A February 2006 VA compensation examination report reflects that the Veteran reported increasing right knee pain. He reported that flare-ups of severe pain occurred weekly and also reported right knee swelling. The examiner noted repeated effusion of the right knee joint and flare-ups of joint disease. Swelling at the knee joint was found. Active and passive right knee range of motion was zero to 140 degrees. No additional loss of motion on repetitive use was shown, but right knee clicks and snaps were elicited. The examiner reported that there was no right knee instability. February 2006 X-rays showed mild narrowing in the medial compartments and no definite effusion. In spite of the X-ray findings and other manifestations shown, the right knee diagnosis was, "no objective findings that warrant a diagnosis." In June 2007, the Veteran reported in his substantive appeal that his doctor recommended replacing both knee joints. A March 7, 2008, VA orthopedic compensation examination report reflects that the right knee was stable. Right knee active and passive range of motion was from zero to 118 degrees, pain-free. Additional limitation of motion after repetitive use was not shown. The examiner found right knee crepitus, but no clicks or snaps. Right knee X-rays showed minimal retropatellar spurring. The right knee diagnosis was early mild degenerative joint disease. The examiner added that this could moderately impact the Veteran's ability to engage in recreation and sports. In June 2009, the Veteran testified before the undersigned Veterans Law Judge that VA has issued knee braces, which he used occasionally. He testified that he has had continued knee pains, especially at night, and that he cannot perform any physical activity due to his knees. He testified that he is self-employed as a restaurateur, which does not require physical labor. Turning to the rating or ratings to assign, the right knee manifestations varied during the appeal period. Reconciling these variances into a consistent picture that accurately represents all elements of the disability, throughout the appeal period the service-connected right knee disability has been manifested by limitation of flexion to no-worse-than 118 degrees. Additional functional impairment due to painful motion and flare-ups is shown. Limited motion in extension is not shown, nor is instability of the right knee joint. While the criteria for a compensable rating for right knee limitation of flexion are not more nearly approximated, because painful motion, flare-ups, and X-ray evidence of arthritis are present, a 10 percent rating is warranted under Diagnostic Code 5003. See also 38 C.F.R. § 4.59; DeLuca, 8 Vet. App. at 206. However, because a 10 percent rating has already been assigned the right knee, after considering all the evidence of record, including the testimony, the Board finds that the preponderance of it is against the claim. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, 1 Vet. App. at 53. The claim for a schedular disability rating greater than 10 percent for the right knee limited flexion must therefore be denied. A separate rating for limited motion in extension is not warranted as there is pain-free extension to zero degrees, that is, to full extension. See 38 C.F.R. § 4.71, Plate II, § 4.71a, Diagnostic Code 5261. Turning to a separate rating for right knee instability, the February 2006 and March 2008 VA compensation examiners found no right knee instability, while an August 2005 report notes a 1+ excursion on Lachman's test. A positive Lachman's test is not the same as lateral instability or subluxation. On the contrary, it is evidence of other knee injury. The evidence does not indicate that the right knee has been unstable at any time during the appeal period. A separate rating for instability is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. Extraschedular Consideration The provisions of 38 C.F.R. § 3.321(b) provide that where the disability picture is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the Veteran for his service-connected disability, an extra-schedular evaluation will be assigned. Where the Veteran has alleged or asserted that the schedular rating is inadequate or where the evidence shows exceptional or unusual circumstances, the Board must specifically adjudicate the issue of whether an extraschedular rating is appropriate, and if there is enough such evidence, the Board must direct that the matter be referred to the VA Central Office for consideration. Colayong v. West 12 Vet. App. 524, 536 (1999); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Court has stressed that consideration of whether a claimant is entitled to an extraschedular rating is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (Fed. Cir.2009). The first step is to determine whether the "evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Id. If the adjudicator determines that this is so, the second step of the inquiry requires the adjudicator to "determine whether the claimant's exceptional disability picture exhibits other related factors," such as marked interference with employment or frequent periods of hospitalization. Id, at 116. Finally, if the first two steps of the inquiry have been satisfied, the third step requires the adjudicator to refer the claim to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether an extraschedular rating is warranted. Id. Moreover, in Thun v Shinseki, 572 F.3d 1366 (Fed. Cir. 2009), the Federal Circuit interpreted and then affirmed the Court's three-part test to determine whether an extra-schedular rating is warranted. The Federal Circuit stressed that (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Id, at 1368. Additionally, if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability as a result of that disability is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the record does not reasonably raise the question of unemployability, nor has the claimant raised this issue. In this case, the established schedular criteria have not been shown or alleged to be inadequate to describe the severity and symptoms of the bilateral knee disabilities; the case does not present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and, there is no evidence that an extra-schedular disability rating would be in the interest of justice. In the absence of evidence of such factors, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b) (1). Notice and Assistance The Board has previously remanded this case for development. When the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this case, all remand orders have been complied with. VA must notify and assist claimants in substantiating claims for benefits. 38 U.S.C.A. § 5103A (West 2002); 38 U.S.C.A. §§ 5102, 5103 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA must 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). VA must also inform the claimant of any information and evidence not of record that VA will seek to provide and that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision. 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 (Court) held that, upon receipt of an application for service-connection, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA 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. In this case, timely notice was provided in February 2006. VA also has a duty to assist the claimant in the development of the claims. This duty includes assisting the claimant in obtaining 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. All necessary development has been accomplished and adjudication may proceed without unfair prejudice to the claimant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has obtained VA and private out-patient treatment reports. A hearing before the undersigned was provided. The claimant was afforded VA medical examinations. The VA examination reports contain sufficient details and are adequate for rating purposes. 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (where VA undertakes to provide an examination (even where VA is not statutorily obligated to provide one) the Board erred in failing to ensure that the examination was adequate or to otherwise notify the Veteran why it would not provide the promised examination). Neither the claimant nor his representative have identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the claimant is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). ORDER For the period prior to March 7, 2008, a 20 percent disability rating for left knee limited motion in extension is granted, subject to the laws and regulations governing payment of monetary benefits. For the period commencing March 7, 2008, a disability rating greater than 20 percent for left knee limited extension is denied. For the entire appeal period, to a separate 10 percent schedular disability rating for left knee instability is granted, subject to the laws and regulations governing payment of monetary benefits. For the entire appeal period, a disability rating greater than 10 percent for the right knee is denied. REMAND VA's duty to assist includes providing a medical examination or obtaining a medical opinion where such is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(b); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). According to 38 C.F.R. § 3.327(a), re-examinations will be required where the evidence indicates that there has been a material change in the disability. In Caffrey v Brown, 6 Vet App 377, 381 (1994), the Court held that where evidence indicated a material change in the disability or indicated that the current rating may be incorrect, a fresh medical examination was required. See also VAOPGCPREC 11-95 (an examination which was adequate for purposes of determination of the claim by the agency of original jurisdiction will ordinarily be adequate for purposes of the Board's determination, except to the extent that the claimant asserts that the disability in question has undergone an increase in severity since the time of the examination). In October 2005 and again in November 2006, the Veteran's VA treating orthopedic surgeon wrote letters favorable to the service connection claims. The physician noted that X-rays showed mild scoliosis of the spine and then reported that the service-connected knee disabilities had caused a significant limp for many years which had affected the Veteran's normal body alignment and could be the cause of his back and right hip pain. A February 2006 VA compensation examination report reflects that X-rays showed very mild levoscoliosis of the lumbar spine, but normal hip joints. The examiner concluded that no other disability of the spine or right hip was shown; however, the examiner noted that right hip-area pain had caused lower back muscle spasm. VA did re-examine the Veteran's knees in March 2008; however, that report does not address the lumbar spine or the hips. In June 2009, the Veteran testified before the undersigned Veterans Law Judge that his back and hips had not been examined since 2006 and that in the recent two years his back and hips had been, "...aggravated more and more...and I've just got more and more pain." Because more than seven years have elapsed since VA examined the back and right hip in February 2006 and because the Veteran has reported worsening symptoms since the February 2006 VA examination, his back and right hip should be re-evaluated to determine the nature and etiology of any current back or right hip disorder. Accordingly, the case is REMANDED for the following action: 1. Obtain up-to-date VA treatment records from the Huntington, West Virginia, VA Medical Center and associate them with the claims file. If no such records are available, that fact must be documented for the record. 2. The Veteran is hereby informed that failure to report for a scheduled VA examination without good cause may have adverse consequences on these claims. 38 C.F.R. § 3.655. If the Veteran fails to report for a scheduled VA examination without good cause, a copy of the notice of examination that was provided to him must be associated with the claims file. 3. The AMC should make arrangements for an examination of the low back and right hip by an appropriate specialist or specialists (orthopedist and/or neurologist) to determine the nature and etiology of the reported lower back pains, spasm, and right hip-area pains and cramping. The claims file and any pertinent record in Virtual VA should be made available to the physician or physicians for review. The physician or physicians is/are asked to review the file, note that review in the report, elicit a history of relevant symptoms from the Veteran, examine him, and offer a diagnosis, if forthcoming. For each diagnosis, the physicians are asked to address questions I and II below. If no diagnosis is forthcoming, the physicians are asked to address questions III and IV below: I. Is it at least as likely as not (50 percent or greater possibility) that any current right hip and/or low back disorder is/are related to active military service? II. If the answer in question I above is "no," then, is it at least as likely as not that any current right hip and/or low back disorder was/were caused by or aggravated by a service-connected disability, particularly, limping due to the Veteran's service-connected knee disorders? III. If the answers above are "no," then is it at least as likely as not that the lumbar scoliosis as shown by X-rays in 2005 is/are related to active military service? IV. If the answer to question III above is "no," then is it at least as likely as not that the service-connected knee disabilities, including limping, have caused or increased any pain in the area of scoliosis? The physician or physicians should offer a rationale for any conclusion in a legible report. If any question cannot be answered, the physician or physicians should state the reason. 4. After the development requested above has been completed to the extent possible, the AMC should re-adjudicate the service connection claims. If the benefits sought remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given an opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ APRIL MADDOX Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs