Citation Nr: 1336947 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 09-04 352 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a rating in excess of 10 percent for instability of the left knee, previously adjudicated as left knee loss of motion. 2. Entitlement to a rating in excess of 10 percent for degenerative arthritis of the left knee. 3. Entitlement to service connection for arthritis of the back, to include as secondary to service-connected left knee disabilities. 4. Entitlement to service connection for arthritis of the hands. 5. Entitlement to service connection for arthritis of the feet. 6. Entitlement to service connection for a right knee disability. 7. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 8. Entitlement to special monthly pension based on need for the regular aid and attendance of another person and/or housebound status. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1951 to August 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2007 and October 2008 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at an August 2013 hearing conducted via videoconference. A transcript of the hearing is of record. With regard to the issue of entitlement to a disability rating in excess of 10 percent for instability of the left knee, the Board notes that this issue was characterized by the agency of original jurisdiction (AOJ) as left knee loss of motion and rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257. However, as Diagnostic Code 5257 pertains to recurrent subluxation or lateral instability of the knee, and the Veteran's left knee was inter alia evaluated under that Diagnostic Code, the Board finds that the Veteran's disability was improperly characterized as "left knee loss of motion." In any event, as will be discussed below, as the Veteran evidences instability of the left knee, the Board will continue to rate his claim under Diagnostic Code 5257. Moreover, the Veteran is not prejudiced in the rating of his claim for instability of the left knee under Diagnostic Code 5257 because, as will also be discussed below, his claim for arthritis of the left knee contemplates range of motion, to include loss of motion. The Board also notes that an April 2013 rating decision granted the Veteran's claim of entitlement to service connection for gastroesophageal reflux disease (GERD). In view of the foregoing, this issue has been resolved and is no longer before the Board. See generally Grantham v. Brown, 114 F.3d 116 (Fed. Cir. 1997). A review of the Veteran's claims folder indicates that the above-referenced November 2007 rating decision also denied the Veteran's claim of entitlement to special monthly pension based on need for the regular aid and attendance of another person and/or housebound status. In a June 2008 statement, the Veteran expressed his disagreement with that decision. A statement of the case (SOC) pertaining to this issue has yet to be issued by the RO. In Manlincon v. West, 12 Vet. App. 238 (1999), the United States Court of Appeals for Veterans Claims (the Court) held that where a NOD is filed but a SOC has not been issued, the Board must remand the claim to the agency of original jurisdiction so that a SOC may be issued. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to service connection for arthritis of the back, hands, and feet and a right knee disability as well as entitlement to TDIU and special monthly pension are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's service-connected left knee disabilities include symptoms consistent with pain, minimal limitation of motion, and no more than slight instability; the evidence does not show flexion limited to 45 degrees or less; extension limited to 10 degrees or more; frequent episodes of locking; ankylosis; or impairment of the tibia and fibula associated with the Veteran's left knee. CONCLUSIONS OF LAW 1. The criteria for an increased disability rating in excess of the currently assigned 10 percent for the service-connected instability of the left knee have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2013). 2. The criteria for an increased disability rating in excess of the currently assigned 10 percent for the service-connected left knee degenerative arthritis have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5260, 5261 (2013). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran seeks entitlement to increased disability ratings for his service-connected left knee instability and degenerative arthritis. In the interest of clarity, the Board will discuss certain preliminary matters. The issues on appeal will then be analyzed and a decision rendered. The Veterans Claims Assistance Act of 2000 The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also defines the obligations of VA with respect to its statutory duty to assist a claimant in the development of his claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). Notice The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In the case at hand, the record reflects that the originating agency provided the Veteran with the required notice, to include notice with respect to the disability rating and effective-date elements of the claim, by a letter mailed in March 2007, prior to the initial adjudication of his claims. In short, the record indicates the Veteran received appropriate notice pursuant to the VCAA. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law affords that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). In the instant case, the Board finds reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claims. There is no reasonable possibility that further assistance would aid in substantiating the claims. The pertinent evidence of record includes statements from the Veteran and his stepson, service treatment records, as well as VA and private treatment records. As noted above, the Veteran also was afforded a hearing before the undersigned VLJ during which he presented oral argument in support of his increased rating claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2013) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties 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. Here, the VLJ fully explained the issues on appeal during the hearing and specifically discussed the Veteran's left knee symptomatology, and suggested the submission of evidence that would be beneficial to the Veteran's claim, namely evidence pertaining to the Veteran's functional impairment associated with the left knee disabilities. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the rating criteria necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the criteria necessary to substantiate his claims. 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). In general, VA's duty to assist includes obtaining records from the Social Security Administration (SSA). See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). The record demonstrates that in December 2008 and October 2009, the RO attempted to obtain the Veteran's SSA records. However, in reports dated December 2008, October 2009, and January 2012, SSA informed VA that it did not have any of the requested records for the Veteran because the records had been destroyed. Based upon this record, the Board finds that additional attempts to obtain these records, if any, would be futile. The Veteran was afforded VA examinations in April 2007, April 2008, and February 2012. The examination reports reflect that the examiners interviewed and examined the Veteran, reviewed his past medical history, documented his current medical conditions, and rendered appropriate diagnoses consistent with the remainder of the evidence of record. Furthermore, these examination reports contain sufficient information to rate the Veteran's left knee disabilities under the appropriate diagnostic criteria. The Board therefore concludes that the VA examination reports are adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2013); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) [holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate]. The Board is cognizant of the fact that the Veteran's claims folder was not available during the April 2007 and April 2008 VA examinations. However, such did not have an adverse effect on the adequacy of the examinations. Notably, as previously indicated, the examiners fully considered the Veteran's complaints, to include his complaints of functional impairment and pain with respect to his left knee disabilities. Physical examinations were then performed that addressed all the relevant rating criteria. The Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the law and that no further action pursuant to the VCAA need be undertaken on the Veteran's behalf. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2013). The Veteran has been accorded the opportunity to present evidence and argument in support of his claims. He has retained the services of a representative. He presented testimony before the undersigned in August 2013. Accordingly, the Board will proceed to a decision as to the issues of entitlement to increased disability ratings for left knee instability and degenerative arthritis. Higher evaluations for left knee disabilities Pertinent Legal Criteria Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2013). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4 (2013). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2013). A request for an increased rating must be viewed in light of the entire relevant medical history. See 38 C.F.R. § 4.1 (2013); see also Peyton v. Derwinski, 1 Vet. App. 282, 287 (1991). However, where entitlement to compensation has already been established and increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that "staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings." The evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. See 38 C.F.R. § 4.10 (2013). Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. See 38 C.F.R. § 4.40 (2013). Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. See 38 C.F.R. § 4.45 (2013). The Veteran seeks entitlement to an increased rating for his service-connected left knee instability, which is currently evaluated 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5257 [recurrent subluxation or lateral instability]. He also seeks entitlement to an increased rating for his service-connected left knee degenerative arthritis, which is currently evaluated 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5260 [degenerative arthritis; limitation of leg flexion]. See 38 C.F.R. § 4.27 (2013) [hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen]. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2013). The competent and probative evidence of record indicates that the Veteran has been diagnosed with degenerative joint disease of his left knee. See, e.g., the February 2012 VA examination report. Accordingly, because the evidence of record indicates arthritis of the Veteran's left knee, the Board finds that Diagnostic Code 5003 [arthritis], with further consideration of Diagnostic Codes 5260 and 5261 [limitation of leg motion], are for application. Under VA regulations, separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25 (2013); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). More specifically, VA General Counsel has concluded that a claimant who has arthritis and instability of a knee may be rated separately under Diagnostic Codes 5003 and 5257 and that evaluation of knee dysfunction under both codes would not amount to pyramiding under 38 C.F.R. § 4.14. See VAOPGCPREC 23-97 (July 1, 1997) and VAOPGCREC 09-98 (August 14, 1998). Therefore, a veteran who has both arthritis and instability of the knee may be rated separately, provided that any separate rating must be based upon additional disability. See also Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997). Accordingly, the Veteran's left knee instability will be rated under Diagnostic Code 5257, and his left knee degenerative arthritis will be rated under Diagnostic Code 5003, with additional consideration of Diagnostic Codes 5260 and 5261. The Board additionally notes that there is no evidence of ankylosis, frequent episodes of locking of the knee, disability caused by cartilage removal, or malunion or nonunion of the tibia and fibula. Thus, Diagnostic Codes 5256, 5258, 5259, and 5262 do not apply in this case. Under Diagnostic Code 5257, a 10 percent evaluation is warranted for slight recurrent subluxation or lateral instability of the knee. A 20 percent evaluation is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating contemplates severe recurrent subluxation or lateral instability. The Board notes that words such as "slight," "moderate," and "severe" are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." See 38 C.F.R. § 4.6 (2013). Under 38 C.F.R. § 4.71a, Diagnostic Codes 5003, arthritis of a major joint is to be rated under the criteria for limitation of motion of the affected joint. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003 (2013). For the purpose of rating disabilities due to arthritis, the knee is considered a major joint. See 38 C.F.R. § 4.45 (2013). Where limitation of motion of the joint is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2013). Under Diagnostic Code 5260, limitation of flexion of the leg provides a noncompensable rating if flexion is limited to 60 degrees, a 10 percent rating where flexion is limited to 45 degrees, a 20 percent rating where flexion is limited to 30 degrees, and a maximum 30 percent rating if flexion is limited to 15 degrees. Under Diagnostic Code 5261, limitation of extension of the leg provides a noncompensable rating if extension is limited to five degrees, a 10 percent rating if limited to 10 degrees, a 20 percent rating if limited to 15 degrees, a 30 percent rating if limited to 20 degrees, a 40 percent rating if limited to 30 degrees, and a 50 percent rating if limited to 45 degrees. A veteran may receive separate ratings for limitations in both flexion and extension under Diagnostic Codes 5260 and 5261. See VAOPGCPREC 9-2004. Discussion of Evidence The Veteran was afforded a VA examination in April 2007. He complained of daily pain in his left knee as well as flare-ups which occurred with strenuous activity such as prolonged standing and walking. He further reported that he was only able to walk up to half a mile, and did not know how long he was able to stand up before having to move about because of the knee pain. Upon physical examination, the VA examiner reported that the Veteran was able to get in and out of his chair and get on and off the exam table with minimal difficulty. He also walked with a normal gait. Range of motion testing revealed flexion to 100 degrees. He had a symmetrical 7 to 10 degree valgus angulation in the left knee. There was no effusion and no positive McMurray's test. All ligaments were stable and intact, and there was no pain on patellar compression. There was some grating crepitus in the knee on making the examining maneuvers, but this did not appear to be painful. There was no increased limitation of motion due to weakness, fatigability, or incoordination during the exam and repetitive use was not an issue. An X-ray report indicated degenerative joint disease of the left knee with osteophytes and narrowing of joint space. The examiner diagnosed the Veteran with polyarthralgia by history, said to be secondary to rheumatoid arthritis, and degenerative joint disease. The Board also notes that a VA treatment record dated November 2007 documents the Veteran's complaints of left knee pain. At that time, he was noted to have a normal gait, nontender knee, and decreased range of motion. A March 2008 VA treatment record indicates that he wears a knee brace. A private treatment record from L.J., M.D., dated March 2008 documents treatment for the Veteran's left knee pain. At that time, range of motion was from 5 to 95 degrees. Dr. L.J. diagnosed the Veteran with osteoarthritis of the left knee. A subsequent private treatment record from Dr. L.J. dated July 2008 also indicates that the Veteran wears a knee brace, and a treatment record dated October 2008 notes range of motion from 5 to 95 degrees with valgus deformity. A private treatment record from Integrity Therapy Group dated April 2008 indicates range of motion of the left knee of 5 to 112 degrees. The Veteran was provided a VA examination in April 2008. He continued his complaints of left knee pain as well as swelling, stiffness, effusion, and tenderness. He also reported locking less than once a year. He used medication for treatment and a walker and cane for support. He reported that he was able to stand for 15 to 30 minutes and could walk 200 to 300 yards. He did not report deformity, giving way, instability, weakness, episodes of dislocation or subluxation, or flare-ups. He reported that the left knee disabilities have no effects on feeding, bathing, dressing, toileting, and grooming; mild effects on chores, shopping, and traveling; moderate effects on recreation; and severe effects on exercise and sports. Upon examination, the VA examiner noted that the Veteran's gait was normal. Range of motion testing revealed active flexion to 125 degrees with pain at 120 degrees, passive flexion to 115 degrees with pain at 95 degrees, and limitation of motion between 85 and 125 degrees on repetitive use. Furthermore, active extension was from 125 to zero degrees with pain between 125 and 119 degrees, passive extension was from 116 to zero degrees with pain at 116 degrees, and no limitation of motion on repetitive use. The examiner also noted no evidence of ankylosis, bumps consistent with Osgood-Schlatter disease, mass behind knee, clicks or snaps, instability, patellar abnormality, meniscus abnormality, or other tendon or bursa. However, the examiner noted crepitation and valgus approximately 7 degrees. The examiner diagnosed the Veteran with degenerative arthritis of the left knee. The Veteran was afforded another VA examination in February 2012. He did not report flare-ups of the left knee. He also reported that he did not use assistive devices. Upon physical examination, range of motion testing revealed flexion to 100 degrees with pain at 70 degrees and extension to zero degrees with no objective evidence of painful motion. He was able to perform repetitive-use testing with three repetitions with no additional loss of motion. The examiner reported that the Veteran had functional impairment of the left knee which was manifested by weakened movement, pain on movement, deformity, and instability of station. Knee flexion and extension strength testing were 4/5. Furthermore, Lachman's, posterior drawer test, medial-lateral instability testing were normal. The examiner reported no evidence of patellar subluxation or dislocation. However, the examiner noted crepitus and deformity of the left knee. An X-ray report revealed an impression of tricompartmental degenerative arthrosis in the left knee with moderate narrowing of the lateral femorotibial and patellofemoral compartments. The examiner diagnosed the Veteran with degenerative joint disease of the left knee. The Veteran also testified as to the severity of his left knee pain at the August 2013 Board hearing. Specifically, he testified that he continues to take medication for the knee pain, and that he has fallen. See the August 2013 Board hearing transcript, pgs. 14-15. He also complained of aches and pain which has impaired his sleep and causes difficulty bending. Id. at page 16. The Board also notes that the Veteran's stepson submitted a statement dated June 2010 which documents the Veteran's difficulty with walking due in part to left knee pain. Rating Based on Recurrent Subluxation and/or Lateral Instability As discussed above, under Diagnostic Code 5257, a 10 percent evaluation is warranted for slight recurrent subluxation or lateral instability of the knee. A 20 percent evaluation is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating contemplates severe recurrent subluxation or lateral instability. The Veteran's service-connected left knee instability is currently rated 10 percent disabling. To warrant a 20 percent disability rating under Diagnostic Code 5257, the evidence must demonstrate that subluxation and/or instability of the knee that is moderate. The Board notes that the Veteran is competent to attest to experiencing symptoms such as giving way in his knee and that he uses a brace, walker or cane for support as well as his complaints of pain and difficulty with walking, standing, and activities of daily living. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). The Board also notes objective findings of crepitus and deformity in the left knee. However, the Board finds that the evidence of record does not warrant a disability rating in excess of 10 percent for left knee loss of motion under Diagnostic Code 5257. Indeed, the competent and probative evidence does not indicate recurrent subluxation or lateral instability which approach moderate or severe disability. In this regard, the April 2007 VA examiner reported that the Veteran was able to get in and out of his chair and get on and off the exam table. Moreover, there was no evidence of effusion or pain on patellar compression. Further, McMurray's test was negative and all ligaments were stable and intact. Additionally, the April 2008 VA examiner noted no evidence of bumps consistent with Osgood-Schlatter disease, mass behind the knee, clicks or snaps, instability, patellar abnormality, meniscus abnormality, or other tendon or bursa. Further, the February 2012 VA examiner reported normal Lachman's, posterior drawer, and medial-lateral instability testing. Finally, the Board notes that the medical evidence of record consistently documents a normal gait. The Board places greater probative weight on the objective clinical findings than the statements from the Veteran and his stepson as such findings were recorded by medical professionals with the requisite training and experience to render medical opinions. Based on the competent and probative evidence of record, the Board therefore finds that the Veteran's left knee disability does not approach moderate or severe recurrent subluxation or lateral instability under Diagnostic Code 5257 during any period under consideration. Accordingly, the Board finds that a disability rating in excess of 10 percent may not be assigned under Diagnostic Code 5257. Rating Based on Arthritis (Limitation of Motion) Diagnostic Code 5260 contemplates a noncompensable evaluation where there is limitation of knee flexion to 60 degrees, which is exceeded by the reports of 100 degrees, 95 degrees, 112 degrees, 120 degrees, 85 degrees, and 70 degrees of the left knee taking into account reports of pain recorded during the course of this appeal. There is no evidence which indicates that a greater limitation of flexion currently exists. Thus, without evidence of limitation of flexion of 60 degrees or less in the left knee, a separate compensable evaluation for left knee flexion cannot be assigned based on Diagnostic Code 5260 during any period under consideration. Diagnostic Code 5261 contemplates a noncompensable evaluation with a limitation of knee extension to 5 degrees. Although the April 2008 VA examiner indicated pain between 125 and 119 degrees on active extension and pain at 116 degrees on passive extension, these findings are at odds with the previous finding of zero degrees active and passive extension without consideration of pain. The examiner also reported no limitation of motion on repetitive use. Furthermore, the March and October 2008 private treatment records from Dr. L.J. as well as the April 2008 private treatment record from Integrity Therapy Group indicate extension to 5 degrees. Moreover, the February 2012 VA examination revealed extension to zero degrees and no objective evidence of pain or additional loss of motion upon three repetitions. Additionally, there is no other competent and probative evidence indicating a greater limitation of extension. As such, the Board finds that the April 2008 VA examiner's finding of active extension between 125 and 119 degrees and 116 degrees of passive extension with consideration of pain are incongruent with the remainder of the competent and probative evidence of record and is therefore of no probative value in evaluating the Veteran's claim. Thus, without limitation of extension to 10 degrees or more in the left knee, a separate compensable evaluation for left knee extension cannot be assigned under Diagnostic Code 5261 during any period under consideration. For the reasons stated above, under Diagnostic Codes 5260 and 5261, respectively, the limitation of left knee movement exhibited by the Veteran is not so significantly impaired or limited as to indicate a compensable evaluation under either Diagnostic Code for the left knee. Where X-ray evidence of arthritis is presented, but the loss of range of motion is noncompensable, a 10 percent disability rating will be assigned under Diagnostic Code 5003. So it is in this case. Further, a rating in excess of 10 percent contemplates X-ray evidence of involvement of two or more minor joint groups, with occasional incapacitating exacerbations. This case, however, involves only one major joint (the left knee). Accordingly, an increased disability rating is not warranted for arthritis. In evaluating the Veteran's increased rating claim, the Board must also address the provisions of 38 C.F.R. § 4.40 and 4.45 (2013). See DeLuca, supra. The Board recognizes the Veteran's complaints of functional loss as a result of his left knee disability, notably his difficulty in walking and standing for long periods of time as well as flare-ups. However, the Board places greater probative value on the objective clinical findings which do not support a rating in excess of 10 percent. In this regard, the competent medical evidence of record does not indicate any significant functional loss attributed to the Veteran's knee complaints sufficient to warrant a higher disability rating. Specifically, during the VA examination in February 2012, the Veteran was able to maintain left knee forward flexion up to 70 degrees, and left knee limitation of extension of zero degrees when pain was considered. There was no increase in loss of range of motion upon repetitive-use testing. The April 2008 VA examination indicates similar findings with regard to flexion, and as discussed above, the Board finds that the active extension between 125 and 119 degrees and passive extension at 116 degrees noted by the VA examiner are of no probative value. In light of the fact that the Veteran has repeatedly demonstrated flexion greater than 60 degrees and normal extension, the Board is satisfied that any additional functional impairment occurring during flare ups would not be sufficient to establish his entitlement to a compensable rating for either limitation of extension or limitation of flexion. Based on this record, the Board is unable to identify any clinical findings that would warrant an evaluation in excess of 10 percent for the Veteran's left knee degenerative arthritis under 38 C.F.R. § 4.40 and 4.45 during the period under consideration. Moreover, in assigning the Veteran a 10 percent rating for his left knee arthritis, the AOJ contemplated functional loss due to the left knee disability. The current 10 percent rating therefore adequately compensates the Veteran for any functional impairment attributable to his service-connected left knee disability. See 38 C.F.R. §§ 4.41, 4.10 (2013). In sum, the Board finds that an evaluation in excess of 10 percent is not warranted for the Veteran's service-connected degenerative arthritis of the left knee. Hart Considerations In Hart, supra, the Court held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. In reaching its conclusion, the Court observed that when a claim for an increased rating is granted, the effective date assigned may be up to one year prior to the date that the application for increase was received if it is factually ascertainable that an increase in disability had occurred within that timeframe. See 38 U.S.C.A. § 5110 (West 2002). After a careful review of the record, the Board can find no evidence to support a finding that the Veteran's left knee instability and degenerative arthritis were more or less severe during the appeal period. Specifically, as discussed above, the April 2007, April 2008, and February 2012 VA examination reports, as well as VA and private treatment records, indicate that the Veteran's left knee symptomatology remained relatively consistent throughout the period. As such, there is no basis for awarding the Veteran an increased disability rating for either the left knee instability or left knee degenerative arthritis at any time during the period under consideration. Extraschedular Consideration In evaluating the severity of his service-connected disabilities, the Board also has considered whether the Veteran is entitled to a greater level of compensation for the disabilities at issue on an extra-schedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2013). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability, with the established criteria shows that the rating criteria reasonably describe the level and symptomatology thereof. The criteria specifically provide for evaluation of the disability based upon impairment of the knee and the associated symptomatology, and they practicably represent the average impairment in earning capacity resulting from the Veteran's service-connected disabilities. See 38 C.F.R. § 4.1. ORDER Entitlement to a rating in excess of 10 percent for instability of the left knee (previously adjudicated as "loss of motion") is denied. Entitlement to a rating in excess of 10 percent for degenerative arthritis of the left knee is denied. REMAND Arthritis of the back, hands, right knee, and feet The Veteran contends that his current arthritis of the back, hands, right knee, and feet are related to treatment for rheumatoid arthritis during military service as well as an injury where he was struck with a cable while serving on the USS Mount Baker. His service treatment records indicate treatment for rheumatoid arthritis. Specifically, Naval service hospital treatment records dated March 1953 indicate that one year previously, the Veteran had swelling of the right knee for two to three days. That cleared and the Veteran had no more trouble until six weeks prior when he awoke feeling sore all over his joints, muscles, and skin. That lasted for four days and kept him from working. He subsequently recovered although he still experienced tiredness and aching. He also had pain at the bottom of his feet. At the time he sought treatment in March 1953, he had aching in his back and felt "stiff and tired all over." Moreover, his accident of being hit by a cable and pushed into a bitt injuring his back was noted. During his stay at the hospital, he complained intermittently of aching and stiffness of his ankles, knees, hips, elbows, wrists, and shoulders. After examination of the Veteran, he was diagnosed with rheumatoid arthritis. Another March 1953 hospital record notes his complaints of pain in his feet, knees, and back. A physical examination was essentially negative at that time. Further, an X-ray report of his right knee was negative. His separation examination dated August 1955 is absent any disability manifested by arthritis of the back, right knee, hands, or feet. The Veteran was afforded VA examinations in February 2012 for his arthritis of the hands, back, right knee, and feet. After examination of the Veteran, the VA examiner concluded that it is less likely than not that the Veteran's arthritis of the hands, back, feet, or right knee were incurred in or caused by his military service. The examiner's rationale for her conclusions was based on her finding that although the Veteran was treated for joint pains in the military, there was no evidence that he had rheumatoid arthritis or currently has rheumatoid arthritis. Although it appears that the VA examiner reviewed the Veteran's claims folder, she did not specifically address the findings of rheumatoid arthritis in March 1953. Moreover, she did not explain why there was no evidence that the Veteran did not have rheumatoid arthritis in service. Indeed, it is unclear as to whether she reviewed the March 1953 service treatment records. Further, a private treatment record from H.E., M.D., dated October 2006 documents an assessment of rheumatoid arthritis which was not addressed by the VA examiner. She also did not discuss the Veteran's in-service injury to his back while aboard the USS Mount Baker in her rationale. As such, the Board finds that the VA examiner's rationale for her conclusions are inadequate for evaluation of the Veteran's claims. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) [the failure of the physician to provide a basis for his/her opinion goes to the weight or credibility of the evidence]. There is no other evidence currently associated with the Veteran's VA claims folder that offers an opinion as to a possible causal relationship between the Veteran's arthritis of the back, hands, feet, or right knee and his military service. In light of the ambiguities above, the Board finds that opinions should be obtained which address whether the Veteran's current arthritis of the back, hands, feet, and right knee are related to his military service. See Charles v. Principi, 16 Vet. App. 370 (2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 C.F.R. § 3.159(c)(4) (2013) (holding a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient medical evidence to decide the claim). The Board also notes that the Veteran has contended that his current arthritis of the back is alternatively related to his service-connected left knee disability. See a statement from the Veteran dated March 2008. There is no medical evidence currently associated with the Veteran's claims folder which addresses whether his arthritis of the back is related to his service-connected left knee disabilities. Accordingly, an opinion as to this question should also be obtained on remand. Additionally, during the above-referenced videoconference hearing in August 2013, the Veteran discussed his arthritis of the back, right knee, feet, and hands and claimed that his symptoms had persisted since service. He also indicated that he is currently receiving VA treatment for these disabilities. See the August 2013 Board hearing transcript, page 9-12. He also indicated that he received VA treatment between 1955 and 1995. Id. at page 8. The Board notes that the only VA treatment records associated with the Veteran's claims folder are dated between June 2004 and December 2009. The procurement of such pertinent VA medical reports is required. Where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that documents which were not actually before the adjudicators but had been generated by VA employees or submitted to VA by claimant were, "in contemplation of law, before the Secretary and the Board and should be included in the record"). In light of the foregoing, the Board finds that an attempt should be made to identify and associate these records with the Veteran's claims folder. TDIU At the August 2013 Board hearing, the Veteran indicated that his service-connected left knee loss of motion and degenerative arthritis render him unemployable. Specifically, he testified that he was not able to work due to the left knee arthritis, and has aches and pains which causes difficulty bending. See the August 2013 Board hearing transcript, pgs. 16-18. In this regard, the Board finds that the issue of TDIU has been raised. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (Once a veteran submits evidence of medical disability and additionally submits evidence of unemployability, VA must consider total rating for compensation based upon individual unemployability). The U.S. Court of Appeals for Veterans Claims held that a request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). 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. Id. at 455. Accordingly, the matter should be remanded for adjudication of the Veteran's claim for the issue of TDIU, in accordance with the holding in Rice. Special monthly pension As was described in the Introduction above, in November 2007 the RO denied the Veteran's claim of entitlement to special monthly pension based on need for the regular aid and attendance of another person and/or housebound status. The Veteran has since indicated disagreement with that decision. See the Veteran's notice of disagreement dated June 2008. In Manlincon, supra, the Court held that where a NOD is filed but a SOC has not been issued, the Board must remand the claim to the agency of original jurisdiction so that a SOC may be issued. Thus, the agency of original jurisdiction must issue a SOC as to the Veteran's claim of entitlement to special monthly pension based on need for the regular aid and attendance of another person and/or housebound status. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Issue a VCAA notice letter which satisfies all VCAA notice obligations with regard to the issue of entitlement to TDIU, in accordance with 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002); 38 C.F.R. § 3.159; Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); and any other applicable legal precedent. This notice letter should specifically apprise the Veteran of the evidence and information necessary to substantiate his claim for TDIU. Also, inform the Veteran of the division of responsibility between him and VA in producing or obtaining that evidence or information. The letter should include an explanation as to the information or evidence needed to establish a disability rating and an effective date in the event of award of the benefit sought, as outlined by the Court in Dingess/Hartman. 2. Associate all outstanding VA treatment records prior to June 2004 and after December 2009 pertaining to the Veteran's arthritis of the hands, back, right knee, and feet with the claims folder. All requests and responses, positive and negative, should be associated with the claims folder. 3. Thereafter, refer the case to a physician with the appropriate expertise in arthritis, including rheumatoid arthritis, for the purpose of determining the etiology of the Veteran's arthritis of the hands, right knee, back, and feet. The claims folder must be made available to and reviewed by the examiner. The examiner should provide an opinion as to the following: a. Identify whether the Veteran currently has rheumatoid arthritis of the hands. b. If rheumatoid arthritis of the hands is not identified, provide an opinion as to when the rheumatoid arthritis of the hands resolved, in particular if it resolved prior to April 2007 when the Veteran filed his claim for VA benefits. The examiner should specifically discuss the Veteran's March 1953 service treatment record noting a diagnosis of rheumatoid arthritis as well as the private treatment record from H.E., M.D., dated October 2006 which documents an assessment of rheumatoid arthritis. c. whether it is at least as likely as not (probability of 50% or more) that the Veteran's arthritis of the hands is related to his military service, to include treatment for joint pain in March 1953. All available lay and medical evidence should be considered. d. Identify whether the Veteran currently has rheumatoid arthritis of the right knee. e. If rheumatoid arthritis of the right knee is not identified, provide an opinion as to when the rheumatoid arthritis of the right knee resolved, in particular if it resolved prior to April 2007 when the Veteran filed his claim for VA benefits. The examiner should specifically discuss the Veteran's March 1953 service treatment record noting a diagnosis of rheumatoid arthritis as well as the private treatment record from H.E., M.D., dated October 2006 which documents an assessment of rheumatoid arthritis. f. whether it is at least as likely as not (probability of 50% or more) that the Veteran's arthritis of the right knee is related to his military service, to include treatment for joint and knee pain in March 1953. All available lay and medical evidence should be considered. g. Identify whether the Veteran currently has rheumatoid arthritis of the feet. h. If rheumatoid arthritis of the feet is not identified, provide an opinion as to when the rheumatoid arthritis of the feet resolved, in particular if it resolved prior to April 2007 when the Veteran filed his claim for VA benefits. The examiner should specifically discuss the Veteran's March 1953 service treatment record noting a diagnosis of rheumatoid arthritis as well as the private treatment record from H.E., M.D., dated October 2006 which documents an assessment of rheumatoid arthritis. i. whether it is at least as likely as not (probability of 50% or more) that the Veteran's arthritis of the feet is related to his military service, to include treatment for joint and foot pain in March 1953. All available lay and medical evidence should be considered. j. Identify whether the Veteran currently has rheumatoid arthritis of the back. k. If rheumatoid arthritis of the back is not identified, provide an opinion as to when the rheumatoid arthritis of the back resolved, in particular if it resolved prior to April 2007 when the Veteran filed his claim for VA benefits. The examiner should specifically discuss the Veteran's March 1953 service treatment record noting a diagnosis of rheumatoid arthritis as well as the private treatment record from H.E., M.D., dated October 2006 which documents an assessment of rheumatoid arthritis. l. whether it is at least as likely as not (probability of 50% or more) that the Veteran's arthritis of the back is related to his military service, to include treatment for joint pain in March 1953 as well as his in-service injury aboard the USS Mount Baker when he was struck with a cable. All available lay and medical evidence should be considered. m. whether it is at least as likely as not (probability of 50% or more) that the Veteran's arthritis of the back is caused or aggravated by his service-connected left knee instability and/or degenerative arthritis. The examiner is reminded that the term "at least as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. "Aggravation" means that a disability was permanently worsened beyond its natural progression. If the examiner finds that the Veteran's arthritis of the back is aggravated by his left knee loss of motion and degenerative arthritis, then he/she should quantify the degree of aggravation to the extent possible. If an opinion cannot be provided without further examination of the Veteran, such an examination must be provided. The rationale for all opinions expressed must be provided. The report prepared must be typed. 4. The Veteran should be scheduled for an appropriate VA examination to determine whether his service-connected disabilities prevent him from securing and following substantially gainful occupation. All indicated tests and studies are to be performed. Prior to the examination, the claims folder must be made available for review of the case. A notation to the effect that this record review took place should be included in the report. Opinions should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the Veteran's claims of entitlement to service connection for arthritis of the back, feet, hands, and right knee disability well as entitlement to TDIU must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 6. Issue a SOC pertaining to the issue of entitlement to special monthly pension based on need for the regular aid and attendance of another person and/or housebound status. In connection therewith, the Veteran and his representative should be provided with appropriate notice of his appellate rights. If, and only if, the Veteran files a timely substantive appeal, the case must be returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs