Citation Nr: 1336149 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 08-30 676 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to a rating in excess of 20 percent for residuals of injuries of the left knee with superficial scar, hypersensitivity, chronic synovitis, and patellofemoral pain syndrome (PFS), to include a rating in excess of 10 percent after November 1, 2012. 2. Entitlement to service connection for a right knee disability, to include as secondary to service-connected left knee disability. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and Linda McCoy ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from July 1970 to February 1972 and January 1975 to June 1976. This appeal comes to the Board of Veterans' Appeals (Board) from a May 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. These matters were previously before the Board in June 2011 at which time the Board found the Veteran had submitted new and material evidence regarding his claim for service connection for a right knee condition and re-opened this issue. The Board then remanded the matters of service connection for right knee, increased rating for left knee, and entitlement to TDIU for further development. Specifically, the Board requested updated records be obtained, including records from the Social Security Administration, additional notice sent to the Veteran, and provide a new examination of the Veteran's knees. The Board finds the requested development was completed and these matters have been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The evidence does not establish flexion of the Veteran's left knee was limited to 15 degrees at any point during the period on appeal. 2. Range of motion testing since 2011 establishes the Veteran had flexion in excess of 70 degrees, reflecting actual improvement maintained under the ordinary conditions of life. 3. The Veteran was provided with notice of the proposed reduction for his service-connected left knee condition from 20 percent to 10 percent. 4. The evidence does not establish the Veteran's current right knee condition was caused by his military service, to include as secondary to his service-connected left knee condition. 5. The Veteran's service-connected disabilities, including posttraumatic stress disorder, diabetes mellitus, and left knee condition, render him unable to follow a substantially gainful occupation no earlier than March 22, 2011. CONCLUSIONS OF LAW 1. Criteria for a rating in excess of 20 percent for the Veteran's service-connected left knee condition, to include a rating in excess of 10 percent after November 1, 2012, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.344, 4.1, 4.2, 4.7, 4.59, 4.71a Diagnostic Codes 5020, 5256-5263 (2013). 2. The RO satisfied the procedural requirements governing the reduction in rating for the Veteran's service-connected left knee condition prior to effectuating the reduction on November 1, 2012. 38 C.F.R. § 3.105 (2013). 3. The reduction from 20 percent to 10 percent, effective November 1, 2012, for the Veteran's service-connected left knee condition was warranted and restoration is denied. 38 U.S.C.A. §§ 1155, 5112 (West 2002); 38 C.F.R. §§ 3.105, 3.344, 4.59, 4.71a, Diagnostic Code 5020-5260 (2013). 4. Criteria for service connection for a right knee condition have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). 5. The criteria for TDIU have been met effective March 22, 2011, but prior to that date, the claim is denied. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.341, 4.16(a), 4.25 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating for Left Knee Condition Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. 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. 38 C.F.R. § 4.7. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's left knee condition is currently rated under Diagnostic Code 5020-5260. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. Diagnostic code 5020 provides synovitis will be rated based on the limitation of motion of affected parts, and Diagnostic Code 5260 provides ratings for limited flexion of the leg. 38 C.F.R. § 4.71a. Accordingly diagnostic code 5020-5260 suggests the Veteran's synovitis is causing a limitation of flexion in his left leg. Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5260 a noncompensable rating is assigned when flexion is limited to 60 degrees, a 10 percent rating is assigned when flexion is limited to 45 degrees, a higher 20 percent rating is assigned when flexion is limited to 30 degrees, and a maximum 30 percent rating is assigned if flexion is limited to 15 degrees. 38 C.F.R. § 4.71a. The Veteran's left knee condition was rated as 20 percent under Diagnostic Code 5020-5260 for the period on appeal until November 1, 2012, when his rating was reduced to 10 percent under the same code. The Board will first discuss whether a rating in excess of 20 percent was warranted at any point prior to November 1, 2012. The Board will then turn to a discussion of the appropriateness of the rating reduction, as well as whether any additional diagnostic codes may apply to the Veteran's left knee condition. All evidence of record was reviewed and considered and the relevant evidence is summarized below. In October 2006 the Veteran sought treatment for his left knee condition at a VA medical facility. The medical provider noted the Veteran's muscle strength was normal. Lachman's, varus, and valgus stress tests were all stable with no signs of instability, although increased pain with McMurray's test was noted. At this time his range of motion was flexion to 90 degrees and extension to zero degrees. The medical provider diagnosed bilateral knee degenerative joint disease with probable degenerative meniscus. The Board notes the results from this range of motion testing reflect the Veteran had flexion well in excess of 15 degrees, the criteria for a higher 30 percent rating. In fact, the Veteran had flexion well in excess of the 60 degrees of flexion contemplated by a noncompensable rating. Accordingly, the Board finds a rating in excess of 20 percent was not warranted at that time. 38 C.F.R. § 4.71a, Diagnostic Code 5260. In April 2007 the Veteran was provided with a VA examination. The Veteran reported stiffness in the mornings and stated he wore a knee brace on his left knee most of the time. Upon examination the examiner noted the Veteran walked with an antalgic gait and used a cane. There was no swelling or signs of instability in his left knee, though the Veteran reported occasional brief locking. Flexion in his left knee was from 0 to 100 degrees. Additional testing was performed after repetitive use and revealed an additional loss of 5 degrees of flexion. An X-ray revealed normal knees bilaterally. The examiner diagnosed bilateral functional moderate synovitis, meniscus degenerative disease, and tendinitis in both knees. The Board notes the results of this range of motion testing reflect that, even considering the additional loss of movement after repetitive use, the Veteran continued to have flexion of 95 degrees in his left knee, well in excess of the 15 degrees contemplated by a higher 30 percent rating. Accordingly a rating in excess of 20 percent was not warranted at that time. VA treatment records from 2008 reflect the Veteran had flexion to 90 degrees in his left knee in September and November. In November 2008 the care provider noted the Veteran's left knee was tender but was without effusion or cruciate laxity. Accordingly, the Board finds these records provide evidence against the Veteran's claim for an increased rating. In January 2010 the Veteran reported he felt he had unstable ambulation and fell on occasion. The Veteran stated his knees "shook" while using the stairs and had for several decades. The Veteran reported he used a cane at home, but did not bring it with him to the clinic on this date. He stated at worst his pain was 8/10, at best 5/10, on average was 7/10, and at that time was 6/10. In March 2011 the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). The Veteran testified that he had taken pain medication for his knee condition since before the initial VA examination provided in this appeal. The Veteran reported he used his cane and braces on his knees. The Veteran also stated he felt his left knee gave out on him every day. He felt his knee had gotten "a lot worse" since his April 2007 examination. He stated that during VA examinations the examiner pushed on his knee "to see how far it will go," regardless of his level of pain. Therefore the Veteran asserted this testing was not accurate of the range of motion he usually experienced while walking. That same month the Veteran attended an orthopedic consult at the VA medical facility. The Veteran reported a sense of buckling in his knees, but denied locking. The physician noted the Veteran walked with an antalgic gait. Upon examination no joint effusion was noted, but the physician did note bilateral "gross atrophy of quad musculature." Range of motion in the Veteran's left knee was from 0 to 110 degrees. Muscle strength was normal and knees were stable bilaterally with no sign of instability. The physician diagnosed pain syndrome and opined the Veteran was not a candidate for any orthopedic knee surgery. The Board finds this report shows the Veteran had increased range of motion to 110 degrees, well in excess of the criteria for an increased 30 percent rating. Accordingly a rating in excess of 20 percent is not warranted. Throughout 2011 the Veteran reported his chronic knee pain was worsening. In April he estimated his pain was a 7/10. In September he reported his prescribed oxycodone was not helping relieve his pain. In a February 2012 consultation with the orthopedic department the Veteran reported constant pain, worse with activities. Range of motion in the left knee was from zero to "70+" degrees. X-ray revealed "some calcification of the lateral meniscus which is a nonspecific finding of meniscal degeneration" but was otherwise normal. The Board finds this report shows the Veteran continued to have range of motion in his left knee well in excess 15 degrees contemplated by a higher rating. Accordingly a rating in excess of 20 percent was not warranted at that time. In May 2012 the VA medical facility gave the Veteran injections in both knees to treat his ongoing pain. In April 2012 the Veteran was provided with an additional VA examination. The examiner noted the Veteran was diagnosed with patellofemoral pain syndrome in his left knee in 2011. The Veteran reported he could only walk four blocks, climb one or two flights of stairs, or stand for fifteen minutes due to his knee pain. He also reported lots of popping in his knees, but no locking. He denied experiencing flare-ups. The Veteran stated he occasionally used braces on his knee and regularly used a cane. Range of motion testing was conducted and revealed the Veteran had flexion to 110 degrees in his left knee and extension to zero degrees. Repetitive use testing was also conducted and revealed no additional limitation of movement, although the Veteran reported pain upon movement. Muscle strength was 4/5, reflecting active movement against some resistance. Joint stability tests were all normal in the left knee. The Board finds the results from this VA examination continue to reflect the Veteran had improved flexion to 110 degrees. Accordingly a rating in excess of 20 percent is still not warranted. As discussed, the rating for the Veteran's left knee condition was reduced to 10 percent effective November 1, 2012. Where a reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Unless otherwise provided, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e). Where a rating has been in effect for five years or more the rating may be reduced only if the examination on which the reduction is based is at least as full and complete as that used to establish the higher disability rating. Ratings for diseases subject to temporary or episodic improvement will not be reduced on the basis of any one examination, except in those instances where the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, though material improvement in the mental or physical condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). The provisions of 38 C.F.R. § 3.344 require that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction; these provisions prohibit a reduction on the basis of a single examination. See Brown v. Brown, 5 Vet. App. 413, 417 (1993). At the time of the November 2012 decision which reduced the disability rating for the service-connected right ankle disability, the 20 percent disability rating had been in effect since October 1995. Thus, as the rating had been in effect for more than five years at the time of the reduction, the provisions of 38 C.F.R. § 3.344 apply in this case. The burden of proof is on VA to establish that a reduction is warranted by a preponderance of the evidence. Where VA has reduced a veteran's rating without observing applicable laws and regulations, such a rating is void ab initio and it will be set it aside as not in accordance with the law. Kitchens v. Brown, 7 Vet. App. 320 (1995). The rating reduction was proposed in a June 2012 rating decision. At that time the RO explained the evidence showed sustained period of improvement in his left knee, as no range of motion testing during the period on appeal reflected the Veteran had flexion limited to 30 degrees. Instead, range of motion testing since 2011 reflected the Veteran had flexion in excess of 70 degrees. In August 2012 the VA sent a letter to the Veteran notifying him that he had a period of 60 days within which to submit additional evidence showing that the reduction should not have been made and that if additional evidence was not received within that period, the rating would be reduced. Therefore, the August 2012 letter provided proper notice in accordance with 38 C.F.R. § 3.105(e). The Veteran and his representative did not submit any additional evidence showing the reduction should not be made during the 60 days after the August 2012 letter. In a November 2012 decision the RO reduced the disability rating for the Veteran's service-connected left knee condition from 20 percent to 10 percent, effective November 1, 2012. In this decision the RO explained no further due process was required because the rating reduction would not result in monetary or schedular reduction. 38 C.F.R. § 3.105. In October 2012, after the proposed reduction, the RO granted the Veteran's separate claim for diabetes mellitus, which brought his total combined rating to 80 percent. Under the combined ratings table, after reduction of his left knee condition to 10 percent, his total combined rating would still remain 80 percent. Therefore the RO both provided the Veteran with the notice required by 38 C.F.R. § 3.105(e) and ultimately the reduction did not lower the monetary compensation received by the Veteran. Accordingly, the Board finds no procedural error occurred. As discussed above, the Board finds the most recent range of motion testings from March 2011 and April 2012 reflect the Veteran had flexion to 110 degrees, more than double the rating criteria for a 20 percent rating. Indeed, the Veteran's range of motion well exceeded the flexion limited to 60 degrees as contemplated by a noncompensable rating throughout the period on appeal. However, due to the Veteran's consistent, credible statements regarding his painful movement, a 10 percent rating is warranted. See 38 C.F.R. § 4.59; Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Accordingly, the Board finds the rating reduction was proper and a 10 percent rating for the Veteran's limitation of movement in his left knee is warranted effective November 1, 2012. The Board notes Diagnostic Codes 5256 through 5263 may also apply to knee conditions to provide separate or higher ratings. 38 C.F.R. § 4.71a. However, the Board finds none of these additional ratings are applicable in this case. First, the evidence does not establish the Veteran had ankylosis at any time during the period on appeal, and therefore a rating under Diagnostic Code 5256 is not warranted. Although the Veteran complained of a daily feeling his knee was giving out, the medical evidence does not establish he had instability or subluxation at any point during the period on appeal. Moreover, in his most recent VA examination in April 2012 the examiner specifically noted the Veteran did not have subluxation or instability. Accordingly, a rating under Diagnostic Code 5257 is not warranted. The evidence also does not establish the Veteran had dislocation or removal of the semilunar cartilage, impairment of tibia and fibula, or genu recurvatum at any point during the period on appeal. Accordingly ratings under Diagnostic Codes 5258, 5259, 5262, and 5263 are not warranted. Finally, the evidence does not establish the Veteran had limitation of extension of his left knee at any point during the period on appeal. Instead he consistently demonstrated full extension to zero degrees. Accordingly no separate or higher rating is warranted under Diagnostic Code 5261. Based on the foregoing the Board finds the evidence does not establish the Veteran's left knee condition warranted a rating in excess of 20 percent before November 1, 2012 or in excess of 10 percent after that time. Additionally the record does not establish any separate rating for the Veteran's left knee condition is warranted. Accordingly, the Veteran's claim for increased rating for his left knee condition is denied. As discussed above, in reaching this conclusion, the Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Repetitive use testing was conducted at each of the Veteran's VA examinations and any additional limitation of movement was specifically considered by the Board in determining the ratings assigned, as discussed above. The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. This means that initially there must be a comparison between the level of severity and symptomatology of the veteran's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the veteran's disability level and symptomatology, a determination must be made whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. However, in this case, the medical evidence fails to show anything unique or unusual about the Veteran's left knee condition that would render the schedular criteria inadequate. The Veteran's main symptoms were complaints of pain in his knee, as well as a feeling of giving out. These symptoms were specifically contemplated in the schedular ratings that were assigned, as discussed above. As such, the Board believes that the schedular rating criteria adequately describe the Veteran's disability picture and even if it does not, it would not be found that his disability met the "governing norms" of an extraschedular rating. Accordingly, referral for consideration of an extraschedular rating is not warranted. Based on all of the foregoing the Veteran's claim for an increased rating for his service-connected left knee condition is denied. Service Connection for Right Knee The Veteran is also seeking service connection for his right knee condition. Although this claim was previously denied in a March 1998 rating decision as discussed above, in a June 2011 decision the Board reopened this claim. Accordingly his claim for service connection for a right knee condition may be adjudicated on a de novo basis at this time. In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also 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). Throughout the period on appeal the Veteran has consistently asserted that his current right knee condition is due to his service-connected left knee condition. For example in his March 2011 hearing the Veteran testified that due to his service-connected left knee condition he relied on his right knee much more and eventually caused damage. Secondary service connection may be granted for a disability which is proximately due to, or the result of, a service-connected disorder. 38 C.F.R. § 3.310(a). Secondary service connection may be found in certain instances in which a service-connected disability aggravates another condition. All evidence of record has been reviewed and considered and relevant information is summarized below. Service treatment records were reviewed and while they do reveal the Veteran had trauma to his left knee during military service, the records do not establish, and the Veteran has not alleged, he received any trauma or any other treatment for his right knee during military service. Accordingly, the Board finds the evidence does not establish the Veteran's current right knee condition began during his military service. In a December 1995 VA examination the Veteran reported he had developed symptoms of pain and instability in his right knee for approximately the past year, but these symptoms were not as severe as in his left knee. The Veteran reported no morning stiffness, but indicated cold weather caused additional discomfort. The Veteran had not experienced collapse or locking of the right knee, though his pain was exacerbated by walking. Upon examination there was tenderness on the right knee, but no effusion. Range of motion was from 0 to 100 degrees. X-ray was normal, though the physician noted the patella of the right knee was more laterally placed than the left and suggested the possibility of subluxation. The examiner opined the Veteran had patellofemoral pain syndrome in the right knee. The Board finds this report from this 1995 VA examination establishes the Veteran did not begin to develop his current symptoms in his right knee until approximately 1994, nearly twenty years after his separation from military service. In a July 1996 VA examination of his joints the Veteran reported some pain in both knees, though the pain was worse on his left than his right. Range of motion of the right knee was from 0 to 130 degrees. No laxity or instability was noted in the right knee. The examiner diagnosed bilateral patellofemoral pain syndrome and opined the Veteran's service-connected left knee was not "exacerbating the right knee condition at all whatsoever." Therefore the Board finds this examination report provides evidence against the Veteran's claim. In an October 1997 VA examination for his left knee the examiner noted the Veteran had not had any injury to his right knee. However, the Veteran reported in 1994 he was informed by his physician that he had arthritis involving his right knee. Range of motion in his right knee was from zero to 77 degrees with mild to moderate pain on motion. The examiner diagnosed chronic patellofemoral syndrome bilaterally. X-rays from September 2005 reflect the Veteran had "some joint thinning, i.e. evidence of some wear" in both knees, though neither knee had a major deformity. In a May 2006 VA examination for his left knee condition the examiner noted the Veteran's right knee was "straight with no obvious varus or valgus joint angulation." Additional X-rays showed normal knees bilaterally. In October 2006 the Veteran sought treatment for bilateral knee pain at a VA medical facility. The Veteran reported experiencing left knee pain for 30 years but his right knee started becoming worse in the last eight or nine years. He stated he now had daily bilateral knee pain, which was worse with walking. The medical provider diagnosed bilateral knee degenerative joint disease with probable degenerative meniscus. In April 2007 the Veteran was provided with a VA examination regarding his current claim. The examiner noted the Veteran's complaints of bilateral knee pain. Examination revealed range of motion of the right knee was limited to 90 degrees of flexion, but no signs of instability were present. The examiner opined the Veteran had "bilateral knee chronic functional moderate synovitis," meniscus degenerative joint disease, bursitis, and tendonitis in both knees. The examiner opined these conditions were at least as likely as not related to the Veteran's military service. The Board notes the results from this April 2007 examination appear to provide evidence in support of the Veteran's claim. However, review of the record reveals the same examiner provided multiple addendums to his April 2007 report. First, in August 2009 the RO asked the 2007 examiner to provide a rationale for his opinion that the Veteran's right knee condition was at least as likely as not related to his military service. The examiner explained that "from many years of orthopedic experience, including my own military experiences, it is my opinion there is at least a 50/50% probability [the Veteran's] knee injury prior to service was aggravated by training requirements while in the military." But in December 2009 the same examiner wrote another addendum to his report. He stated "I need to retract the 50/50 at least as likely as not supposition." He explained that upon closer review of the case "I do not have any scientific or historical evidence to base this conclusion on." The examiner instead opined "I am unable to determine origin cause or relationship of right knee problems, due to lack of evidence, without resorting to speculation." Finally, in February 2010 the RO again returned the examiner's opinion stating it was inadequate. The examiner provided a more detailed summary of his reasoning. He explained that due to indication in the record the Veteran suffered a bilateral knee injury in high school, the fact that he received no treatment for his right knee during military service, unknowable "wear and tear" from the Veteran's post-military activities, and the Veteran's current status as overweight it was "simply not possible to make a scientifically accurate determination regarding causation, relationships, etiology or origins of knee problems without resorting to mere speculation, supposition and a significant amount of guess-work." Therefore, although the examiner initially provided a positive nexus opinion regarding the Veteran's right knee condition, this same examiner has since clearly and unequivocally retracted this positive nexus opinion. Instead, the examiner most recently stated he could not make a determination as to whether the Veteran's current right knee condition was due to his service-connected left knee condition or other factors without resort to speculation. The Court of Appeals for Veterans Claims (Court) has determined a conclusion that an etiology opinion is not possible without resort to speculation is a medical opinion and may be relied upon by the Board if the examiner explains the basis for such an opinion. See Jones v. Shinseki, 23 Vet. App. 382 (2010). Accordingly, the Board finds this examination report is an adequate opinion that does not establish the Veteran's current right knee condition is due to or permanently aggravated by his left knee condition. In September 2008 a VA physician indicated the Veteran reported he injured his knees while wrestling in high school. Range of motion of the Veteran's right knee was limited to 90 degrees of flexion. In January 2010 a VA physician noted the Veteran walked with an antalgic gait favoring the right. The Veteran reported his knees "shook" when using stairs for several decades and he felt unsteady, like he would fall. The physician noted the Veteran had a sedentary lifestyle. At his March 2011 hearing the Veteran reported his knee conditions frequently made him fall. His girlfriend stated that she watched him fall several times onto the kneecap of his right knee. As discussed above, the Veteran also testified that over the years he used his right knee more to compensate for his service-connected left knee until now his right knee condition was worse. The Veteran testified that his ongoing pain in both knees made it difficult for him to sleep at night. The Veteran also objected that the RO returned his case to the same VA examiner for multiple addendum opinions. The Veteran suggested the examiner intended some sarcasm and frustration in his report when he stated "if further opinion is required, rather than return this rating again as inadequate have another orthopedic provider perform another separate PE and give their opinion and rationale." The Board agrees the language of the examiner's August 2009 written addendum report suggests some frustration; however as discussed above, the examiner ultimately unequivocally revoked his positive nexus opinion in his December 2009 and February 2010 written addendums. Because his initial positive decision provided no rationale and was ultimately revoked the Board finds it had no probative value. That same month the Veteran returned to a VA medical facility with complaints of bilateral knee pain. An x-ray was taken and compared to the Veteran's prior October 2006 x-ray. The interpreting physician noted the Veteran's right knee was "unremarkable" and "unchanged." However, the physician noted the Veteran had longstanding pain in his right knee. A few months later in May 2011 the Veteran reported his right knee was "slightly improved" but "remains painful" following physical therapy. He stated he was unable to fully bear weight on his right leg so he used crutches. In June he reported feeling pain after feeling his right knee "pop" the day before. He stated he had pain in his right knee for eight to nine years, while he had pain in his left knee for twenty to thirty years. The following month the Veteran reported he continued to have pain since his right knee "popped' in June. An x-ray was taken which revealed no degenerative changes or fractures. However an MRI scan was also performed which revealed chondromalacia of medial aspect of tibiofemoral joint and of the posterior patella. The physician diagnosed sprain to the right knee, chronic patellofemoral pain syndrome, and medial meniscal tear. An x-ray from February 2012 revealed no effusion, but there was some mild narrowing in the medial compartment. The physician also noted a small amount of calcification just below the patella. The physician opined the mild narrowing in the medial compartment may reflect the presence of early arthritis, but the x-ray was otherwise normal. In April 2012 the Veteran was provided with a VA examination. The examiner noted the Veteran was diagnosed with chondromalacia and medial meniscus tear of his right knee in 2011. The Veteran reported his right knee started bothering him about twenty years ago, but he did not seek treatment until ten to fifteen years ago. The examiner reviewed the Veteran's claims file and examined his right knee. The examiner then opined that his current right knee condition was less likely than not caused by, or aggravated beyond its normal progression by, his service-connected left knee condition. The examiner explained the Veteran had right knee trouble since before he fell in June 2011 due to chondromalcia and medial meniscal tear. The examiner stated it would be "speculation" to attribute these changes to his service-connected left knee condition. The Board finds this report is clear and unequivocal and the examiner clearly explained his rationale. Accordingly, the Board finds this report provides probative evidence against the Veteran's claim. Based on the foregoing the Board finds the evidence clearly establishes the Veteran currently has a right knee condition. However, the Board finds the evidence does not establish the Veteran's current right knee condition is due to his military service. As discussed above, the evidence does not establish, and the Veteran has not alleged, that his right knee condition began during military service. Additionally the medical evidence and the Veteran's lay statements do not reflect he developed pain in his right knee until approximately 1994, nearly twenty years after his separation from military service. Accordingly, direct service connection is not established. Instead, the Veteran has consistently asserted that his current right knee condition is due to his service-connected left knee condition. The Board acknowledges that as a lay person the Veteran is competent to report what comes to him through his senses, such as ongoing pain in his right knee. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Veteran lacks the medical training and expertise required to provide a complex medical opinion as to the etiology of his current right knee pain. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Board finds the medical evidence does not establish the Veteran's current right knee condition is due to his service-connected left knee condition. As discussed above, although the 2007 VA examiner initially provided a positive nexus opinion, upon further review he clearly and unequivocally retracted his opinion. Moreover, the most recent VA examiner from April 2012 clearly opined the Veteran's current right knee condition was "less likely than not" due to his service-connected left knee condition. The record does not contain any other medical evidence suggesting the Veteran's current right knee condition is due to his service-connected left knee condition. Therefore, the Board finds the more probative evidence does not establish the Veteran's current right knee condition is due to or aggravated by his left knee condition, and his claim for service connection is denied. Total Disability Based on Individual Unemployability (TDIU) Finally, the Veteran is also seeking total disability based on individual unemployability (TDIU). After his military service the Veteran worked a variety of jobs, including home construction, truck driving, and drafting. On his August 2011 application for increased compensation based on unemployability the Veteran reported his most recent employment was in 1998 when he worked as a cook. The Veteran reported he had four years of college education. As discussed above, the record reflects the Veteran has not worked since 1998. At his hearing the Veteran testified he stopped working due to his knee problems, as well as other problems. On his application for TDIU the Veteran explained he stopped working because he "can't deal with people." Under VA regulations a TDIU rating may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the VA, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent disability or more. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment. In his hearing the Veteran testified he had not worked since approximately 1998. However, prior to March 2011 the Veteran was only service connected for his left knee condition which was rated at 20 percent, as discussed above. This single rating for 20 percent does not meet the criteria for TDIU under the VA regulations. Where the percentage requirements of 38 C.F.R. § 4.16(a) are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §4.16(b). In such cases, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service connected conditions and advancing age that would justify a TDIU. 38 C.F.R. §§ 3.341(a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). The Board concludes an extraschedular TDIU award is not warranted prior to March 2011, based on the left knee condition alone, which, again, was the only service-connected condition at that time. Despite any pain and limitation of function caused by the knee condition, the fact remained that the Veteran's educational level and the fact that he had at least some experience working in an office environment, meant he could certainly perform a sedentary occupation. Although his knee condition would arguably limit him from strenuous physical jobs, he still retained the physical and mental capacity to be employed in a sedentary position. However, after March 2011 the Veteran has a combined rating of 80 percent, including ratings for posttraumatic stress disorder (PTSD), diabetes mellitus, and the left knee condition discussed above. Additionally, after March 2011 the Veteran has a single condition, PTSD, that is rated at more than 60 percent. Accordingly, the Veteran meets the threshold criteria for TDIU under 38 C.F.R. § 4.16(a) after March 2011. As such, the Veteran may be eligible for total disability rating after that date if the VA determines that he is unable to secure or follow substantially gainful occupation as a result of his service-connected disabilities. 38 C.F.R. § 4.16(a). The Board finds the evidence establishes the Veteran is unable to secure or follow substantially gainful occupation as a result of his service-connected disabilities. The results from the April 2012 VA examination reflect the Veteran's left knee condition prevents him from standing for more than 15 minutes, walking more than one block, or doing any squatting. With these physical limitations the Board finds the Veteran would be ill-suited to physically demanding work, especially given the limitation he cannot stand for more than 15 minutes at a time. If only the Veteran's knee were for consideration, it does not appear he would be found unemployable. As noted above, the limitations caused by that condition alone would not be enough. However, the record also establishes the Veteran's service-connected PTSD caused additional work impairments. For example in his April 2011 VA examination the examiner opined the Veteran had poor concentration and attention. In a January 2012 decision the Social Security Administration (SSA) found the Veteran's ability to interact with the public or tolerate close contact with coworkers was "significantly limited" due to his PTSD. The SSA also found the Veteran could not carry out complex instructions or sustain concentration for more than one or two hours due to his PTSD. As a result SSA opined the Veteran could only do unskilled work with no contact with the general public and no more than brief and indirect contact with co-workers. Therefore the Board finds despite his college education the Veteran would be ill-suited to most sedentary jobs, including any jobs performed in an office environment, due to social impairment caused by his service-connected PTSD. As such, the evidence establishes the Veteran would be unable to perform physically demanding jobs due to his service-connected knee condition, and would be ill-suited for work with the public or co-workers, including jobs in an office environment, due to his service-connected PTSD. Therefore the Board finds the evidence provides support for the Veteran's claim as the combination of the physical impairment due to the knee condition and the emotional/mental impairment due to the PTSD render him unable to work. Based on the record and for the reasons just discussed, the Board finds that the preponderance of evidence shows that the Veteran's service-connected conditions, including PTSD and a left knee condition, render him unable to follow a substantially gainful occupation. In this regard, the Board notes that entitlement to TDIU does not require total occupational impairment but rather requires that the individual is unable to secure and follow a substantially gainful occupation. As he cannot secure and follow a substantially gainful occupation due to service-connected disabilities the remaining criterion for TDIU are met and his appeal must be granted, effective March 2011. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in March 2007, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above regarding his left and right knee conditions. The letter also informed the Veteran how disability ratings and effective dates were established. Following the Board's June 2011 remand which inferred a claim for TDIU the Veteran was provided with a letter in July 2011 which informed the Veteran of how TDIU was established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records, post-service VA and private treatment records, and records from the SSA have all been obtained. The Veteran was also provided with a hearing before the undersigned VLJ in March 2011. In Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. 23 Vet. App. 488 (2010). They consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. During the hearing in this case the VLJ fully explained the issues on appeal. The Veteran was assisted at the hearing by an accredited representative from the Oregon Department of Veterans' Affairs, and the VLJ and the representative asked questions regarding the nature and etiology of the Veteran's claimed bilateral knee conditions, specifically regarding the Veteran's contentions his left knee condition had gotten worse and had caused his right knee condition. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims file that might have been overlooked or was outstanding that might substantiate the claim, and specifically inquired as to the need for an updated VA examination. Such examination was provided upon remand and no additional pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or his representative. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. During the course of the appeal the Veteran was also provided with several VA examinations, the reports of which have been associated with the claims file. The Board finds the VA examinations were thorough and adequate and provide a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. The Board notes the initial April 2007 examination regarding the Veteran's claim for service connection for his right knee was inadequate as the examiner failed to provide a rationale for his opinion. However the Veteran was provided with a subsequent examination in April 2012 regarding this claim which was adequate, as discussed above. The Board notes in their March 2013 written brief the Veteran's representative objected that no examination had been provided to the Veteran regarding his claim for TDIU. However, as this claim is granted, the Board finds any failure to provide an examination regarding this issue is harmless error. Therefore the VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. [Continued on Next Page] ORDER The Veteran's claim for an increased rating for his service-connected left knee condition is denied. The Veteran's claim for service connection for his right knee condition is denied. Total disability based on individual unemployability is granted effective March 22, 2011, subject to the laws and regulations governing the payment of monetary benefits. ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs