Citation Nr: 1338330	
Decision Date: 11/21/13    Archive Date: 12/06/13

DOCKET NO.  10-24 633	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1.  Entitlement to service connection for a bilateral foot disability, to include as secondary to service-connected left knee arthritis.

2.  Entitlement to an increased evaluation for service-connected left knee traumatic arthritis, currently evaluated as 10 percent disabling.

3.  Entitlement to an increased evaluation for service-connected left knee limitation of extension, currently evaluated as noncompensable.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

K. Millikan, Counsel

INTRODUCTION

The Veteran served on active military duty from May 1955 to November 1955.  This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA) and a March 2013 Board remand.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (3).  38 U.S.C.A. § 7107(a)(2) (West 2002).

This appeal was processed using the Veterans Benefits Management System (VBMS).  Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. 

The issue of entitlement to service connection for a bilateral foot condition is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office via the Appeals Management Center (AMC).


FINDINGS OF FACT

1.  Throughout the time period on appeal, the Veteran's service-connected left knee disability is manifested by arthritis with painful limitation of motion, including flexion limited to 110 and 130 degrees, but objective evidence of stability, and no additional functional loss not considered within the current evaluation.

2.  Throughout the time period on appeal, the Veteran's service-connected left knee limitation of extension is manifested by full extension and no additional functional loss not considered within the current evaluation.



CONCLUSIONS OF LAW

1.  The criteria for an increased evaluation for the service-connected left knee arthritis have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5010-5260 (2013).

2.  The criteria for a compensable evaluation for the service-connected left knee limitation of extension have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a, DC 5261 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002).  This notice must be provided prior to an initial RO decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  For increased rating claims, the VCAA requires generic notice of the type of evidence needed to substantiate the claim, i.e., evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned.  Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1280-81 (Fed. Cir. 2009).

Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication, such as where (1) the claimant demonstrates actual knowledge of the content of the required notice; (2) a reasonable person could be expected to understand from the notice what was needed; or (3) a benefit could not have been awarded as a matter of law.  Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009).  Defective timing may be cured by a fully compliant notice letter followed by a readjudication of the claim.  Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). 

Here, VA's duty to notify has been satisfied.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).   An October 2008 letter that contained the required information was sent to the Veteran prior to initial adjudication of this claim.  Additionally, the Veteran was represented by a certified veterans' service organization throughout the claims process.  Accordingly, VA's duty to notify has been satisfied.  

VA's duty to assist the Veteran has also been satisfied.  38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(c)(1)-(3).  The Veteran's service treatment records (STRs) and VA medical records have been obtained.   In January 2010, the Social Security Administration notified VA that any relevant records regarding the Veteran had been destroyed.  VA provided the Veteran medical examinations in November 2008 and May 2013.  The examinations are adequate because they contain a history obtained from the Veteran and a thorough knee examination relevant to the applicable rating criteria.  There is no indication in the record that additional evidence relevant to the issues decided herein is available and not part of the claims file.  See Pelegrini, 18 Vet. App. at 121-22.  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537, 542-43 (2006), aff'd, Mayfield v. Nicholson, 499 F.3d 1317 (2007); see also Dingess/Hartman, 19 Vet. App. at 486

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2013).  The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2013).  In resolving this factual issue, the Board may only consider the specific factors as are enumerated in the applicable rating criteria.  See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992).

In considering the severity of a disability, it is essential to trace the medical history of the veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41 (2013).  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending.  Powell v. West, 13 Vet. App. 31, 34 (1999).  Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Staged ratings are, however, appropriate when the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).  "The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim."  Hart, 21 Vet. App. at 509.

The evaluation of the same disability under various diagnoses is to be avoided.  38 C.F.R. § 4.14 (2013).  However, separate evaluations for separate and distinct symptomatology may be assigned where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code.  Esteban v. Brown, 6 Vet. App. 259, 262 (1994).  Furthermore, if two evaluations are potentially applicable, the higher evaluation is assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating is assigned.  38 C.F.R. § 4.7 (2013).  Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2013).

By a February 1995 rating decision, the RO granted service connection for left knee traumatic arthritis and assigned a 10 percent evaluation under 38 C.F.R. § 4.71a, DC 5257, effective April 20, 1992.  In a December 2003 rating decision, the RO continued the 10 percent evaluation, but assigned DC 5010-5260.  In a January 2005 rating decision, the RO continued the 10 percent evaluation and assigned a separate evaluation for limitation of extension, under DC 5261, effective September 27, 2004.  In a December 2008 rating decision, the RO denied increased evaluations for the left knee disabilities.  The Veteran perfected an appeal of that decision.  

	Left knee arthritis
 
The Veteran's current 10 percent evaluation under DC 5010-5260 indicates that his disability is manifested by traumatic arthritis with limitation of leg flexion to 45 degrees, which is noncompensable limitation of motion for each major joint or group of minor joints.  38 C.F.R. § 4.71a, DCs 5003, 5010.  A maximum 20 percent evaluation is assigned for arthritis of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and increased evaluations of 20 percent and a maximum 30 percent are warranted for limitation of flexion to 30 and 15 degrees, respectively.  38 C.F.R. § 4.71a, DCs 5003, 5010, 5260.  The shoulder, elbow, wrist, hip, knee, and ankle are considered major joints; multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities, the interphalangeal, metatarsal and tarsal joints of the lower extremities, the cervical vertebrae, the dorsal vertebrae, and the lumbar vertebrae, are considered groups of minor joints, ratable on a parity with major joints.  38 C.F.R. § 4.45 (2013). 

For diagnostic codes based upon limitation of motion, the presence of any additional functional loss must be considered.  See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2013); see also DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).  Factors involved in evaluating and rating disabilities of the joints include:  weakness; fatigability; lack of coordination; restricted or excess movement of the joint; or, pain on movement.  38 C.F.R. § 4.45 (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.  Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. § 4.40.  With respect to joints, the factors of disability reside in reductions of normal excursion of movements in different planes, such as more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse.  38 C.F.R. § 4.45.  The intent of the Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.  

Throughout the time period, including in VA medical records dated from 2008 through 2013, the Veteran reported left knee pain.  At the 2008 VA examination, there was x-ray evidence of chronic changes at the attachments of the patellar tendons, although there was no evidence of traumatic arthritis.  Left leg flexion was to 130 degrees with pain.  There was no additional limitation of motion with repetitive use.  The Veteran reported flare-ups of increased pain to 6/10.  He stated that his left knee disability affected his activities of daily living, including sleeping, driving, dressing, bathing, toileting, food preparation, and chores.  He used no assistive devices.  At the 2013 VA examination, the examiner noted left knee degenerative joint disease.  Left knee flexion was to 110 degrees with pain.  There was no additional limitation of motion upon repetitive testing.  The examiner did note there was less movement than normal, weakened movement, pain on movement and palpation, swelling, disturbance of locomotion, and interference with sitting, standing, and weight bearing.  There was also 4/5 strength.  The examiner did not find excess fatigability, incoordination, deformity, atrophy of disuse, or instability of station.  

The Board finds an increased evaluation for left knee arthritis is not warranted under DC 5010-5260.  The evidence does not indicate arthritis of 2 major joints or 2 minor joint groups.  38 C.F.R. § 4.71a, DC 5003, 5010.  Additionally, flexion is not limited to 30 or 15 degrees; rather flexion is to 130 and 110 degrees.  38 C.F.R. § 4.71a, DC 5260.  Even when considering the presence of additional functional loss, an increased evaluation is not warranted.  At the 2008 and 2013 VA examinations, repetitive use did not cause additional limitation of motion.  The Veteran reported pain, flare-ups of worsening pain only, and effects on his activities of daily living, including sleeping, driving, dressing, bathing, toileting, food preparation, and chores.  At the 2013 VA examination, the examiner noted that repetitive testing showed less movement than normal, weakened movement, pain on movement, swelling, disturbance of locomotion, and interference with sitting, standing, and weight bearing.  There was 4/5 strength.  In 2008, the Veteran was not using any assistive devices, but by the 2013 examination, he used a cane.  Although there were clearly functional effects on the Veteran's knee, those effects, including pain which limited flexion, standing, sitting, and walking, are adequately considered within the 10 percent evaluation which is assigned for painful motion - the Veteran's limitation of flexion does not provide for a 10 percent evaluation.  Additionally, the 2013 examiner did not find excess fatigability, incoordination, deformity, or atrophy of disuse, or instability of station.  Taking all of these considerations into account, the Board finds that any additional functional loss does not warrant an increased evaluation for left knee arthritis with limitation of flexion.  

An increased evaluation under other potentially applicable diagnostic codes has been considered.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).  Initially, a separate evaluation has already been assigned for limitation of leg extension; no increased evaluation on this basis can be found.  38 C.F.R. § 4.71a, DC 5261 (2013).  For other knee impairment, 20 and 30 percent evaluations are assigned for moderate and severe recurrent subluxation or lateral instability.  38 C.F.R. § 4.71a, DC 5257 (2013).  At the 2008 VA examination, the Veteran provided competent and credible statements that he feels his knee is unstable.  See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge).  The 2008 VA examination found the left knee stable to Lachman, Drawer, and varus and valgus testing.  The 2013 VA examination found normal anterior stability, posterior stability, and medial-lateral stability upon testing.  The examiner also found no evidence or history of recurrent patellar subluxation/dislocation, to include x-ray evidence.  This medical evidence outweighs the Veteran's competent and credible feelings of instability as they are based upon objective testing.  Accordingly, no increased evaluation is warranted. 

For dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint, a 20 percent evaluation is assigned.  38 C.F.R. § 4.71a, DC 5258 (2013).  At the 2008 VA examination, the Veteran reported intermittent locking of his knee.  The Board finds these statements competent and credible to the extent they indicate the Veteran feels as if his knee locks.  See Caluza, 7 Vet. App. at 511; Layno, 6 Vet. App. at 469-70.  The 2008 VA examiner noted that testing was normal for meniscal derangement.  The 2013 VA examiner found that there were no left knee meniscal conditions and no meniscectomy.  An accompanying left knee x-ray report noted there was no joint effusion in the suprapatellar bursa. These objective findings that there are no meniscal conditions or meniscal abnormality outweigh the Veteran's statements, as they are based upon objective testing.  Accordingly, no increased evaluation is warranted on this basis.

Additionally, there is no left knee ankylosis, as the 2008 and 2013 VA examinations showed extension to zero degrees and flexion to 110 and 130 degrees throughout the appeal period.  38 C.F.R. § 4.71a, DC 5256 (2013); 38 C.F.R. § 4.71a, Plate II (2013) (noting that the normal range of knee motion is from zero to 140 degrees).  Furthermore, the 2013 VA examination included an x-ray of the knee which indicated no fracture; thus there is no malunion or fracture of the femur.  38 C.F.R. § 4.71a, DC 5255 (2013).  Moreover, the evidence of record, including x-ray reports, does not indicate any malunion of the tibia and fibula.  38 C.F.R. § 4.71a, DC 5262 (2013).  Finally, a 10 percent evaluation is the maximum permitted for asymptomatic removal of semilunar cartilage and for genu recurvatum.  38 C.F.R. § 4.71a, DC 5259, 5263 (2013).

Separate evaluations for arthritis and instability have been considered.  See VAOPGCPREC 23-97; 62 Fed. Reg. 63604 (1997) (arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, provided that any separate rating is based upon additional disability); VAOPGCPREC 9-98; 63 Fed. Reg. 56704 (1998) (if a veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is x-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59).  But as noted above, the evidence of record does not support a finding of instability. 

Separate evaluations for limitation of knee extension and flexion have also been considered, but as noted above, the Veteran already is in receipt of such separate evaluations.  See VAOPGCPREC 9-04; 69 Fed. Reg. 59990 (2005) (holding that where a knee disability manifests both limitation of flexion and limitation of extension, VA is to provide two separate ratings under Diagnostic Codes 5260 and 5261).  

	Left knee limitation of extension

The Veteran's current noncompensable evaluation under DC 5261 indicates limitation of extension to 5 degrees.  Evaluations of 10, 20, 30, 40, and 50 percent evolutions are assigned for extension limited to 10, 15, 20, 30, and 45 degrees, respectively.  38 C.F.R. § 4.71a, DC 5261.

For diagnostic codes based upon limitation of motion, the presence of any additional functional loss must be considered.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. at 206 (1995).  Factors involved in evaluating and rating disabilities of the joints include:  weakness; fatigability; lack of coordination; restricted or excess movement of the joint; or, pain on movement.  38 C.F.R. § 4.45.  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.  Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. § 4.40.  With respect to joints, the factors of disability reside in reductions of normal excursion of movements in different planes, such as more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse.  38 C.F.R. § 4.45.  The intent of the Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.  

Throughout the time period, including in VA medical records dated from 2008 through 2013, the Veteran reported left knee pain.  At the 2008 VA examination, there was left leg extension to zero degrees with pain.  There was no additional limitation of motion with repetitive use.  The Veteran reported flare-ups of increased pain to 6/10.  He stated that his left knee disability affected his activities of daily living, including sleeping, driving, dressing, bathing, toileting, food preparation, and chores.  He used no assistive devices.  At the 2013 VA examination, the examiner found left knee extension to zero degrees with pain.  There was no additional limitation of motion upon repetitive testing.  The examiner did note there was less movement than normal, weakened movement, pain on movement and palpation, swelling, disturbance of locomotion, and interference with sitting, standing, and weight bearing.  There was also 4/5 strength.  The examiner did not find excess fatigability, incoordination, deformity, atrophy of disuse, or instability of station.  

The Board finds an increased evaluation for left knee limitation of extension is not warranted under DC 5261.  Extension remained full throughout the time period and was thus not shown to be limited to 10, 15, 20, 30, or 45 degrees, respectively.  38 C.F.R. § 4.71a, DC 5261.  Even when considering the presence of additional functional loss, a compensable evaluation is not warranted.  At the 2008 and 2013 VA examinations, repetitive use did not cause additional limitation of motion.  The Veteran reported pain, flare-ups of worsening pain only, and effects on his activities of daily living, including sleeping, driving, dressing, bathing, toileting, food preparation, and chores.  At the 2013 VA examination, the examiner noted that repetitive testing showed less movement than normal, weakened movement, pain on movement, swelling, disturbance of locomotion, and interference with sitting, standing, and weight bearing.  There was 4/5 strength.  In 2008, the Veteran was not using any assistive devices, but by the 2013 examination, he used a cane.  Although there were clearly functional effects on the Veteran's knee, those effects, including pain which limited flexion, standing, sitting, and walking, are adequately considered within the 10 percent evaluation which is assigned for traumatic arthritis with painful noncompensable limitation of flexion.  Additionally, the 2013 examiner did not find excess fatigability, incoordination, deformity, or atrophy of disuse, or instability of station.  Taking all of these considerations into account, the Board finds that any additional functional loss does not warrant an increased evaluation for left knee limitation of extension.  

An increased evaluation under other potentially applicable diagnostic codes has been considered.  Schafrath, 1 Vet. App. at 595.  Initially, a separate evaluation has already been assigned for arthritis and limitation of leg flexion; no increased evaluations on these bases can be found.  38 C.F.R. § 4.71a, DC 5003, 5010, 5260.  For other knee impairment, 10, 20 and 30 percent evaluations are assigned for slight, moderate, and severe recurrent subluxation or lateral instability.  38 C.F.R. § 4.71a, DC 5257.  For dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint, a 20 percent evaluation is assigned.  38 C.F.R. § 4.71a, DC 5258.  As indicated above, the Board finds that the medical evidence outweighs the Veteran's competent and credible lay statements; thus, there is no left knee subluxation or instability or meniscal abnormalities with locking and joint effusion. Accordingly, no increased evaluation on these bases is warranted. 

Additionally, there is no left knee ankylosis, as the 2008 and 2013 VA examinations showed extension to zero degrees and flexion to 110 and 130 degrees throughout the appeal period.  38 C.F.R. § 4.71a, DC 5256; 38 C.F.R. § 4.71a, Plate II.  Furthermore, the 2013 VA examination included an x-ray of the knee which indicated no fracture; thus there is no malunion or fracture of the femur.  38 C.F.R. § 4.71a, DC 5255.  Moreover, the evidence of record, including x-ray reports, does not indicate any malunion of the tibia and fibula.  38 C.F.R. § 4.71a, DC 5262 (2013).  Finally, the evidence of record indicates there are no meniscal abnormalities and does not indicate the presence of genu recurvatum.  38 C.F.R. § 4.71a, DC 5259, 5263.  No compensable evaluation on these bases is thus warranted.

Separate evaluations for arthritis and instability have been considered.  See VAOPGCPREC 23-97; 62 Fed. Reg. 63604; VAOPGCPREC 9-98; 63 Fed. Reg. 56704.  Separate evaluations for limitation of knee extension and flexion have also been considered.  See VAOPGCPREC 9-04; 69 Fed. Reg. 59990. But as noted above, the evidence of record does not support a finding of instability and the Veteran is already in receipt of separate evaluations for limitation of flexion and extension. 

	Extraschedular evaluation

Consideration has also been given regarding whether the schedular evaluations are inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities."  38 C.F.R. § 3.321(b)(1) (2013); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record).  An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards.  Floyd v. Brown, 9 Vet. App. 88, 94 (1996).  An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the veteran's service-connected disability.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization.  Thun, 22 Vet. App. at 115-116.  When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating.  Otherwise, the schedular evaluation is adequate, and referral is not required.  38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116.  

In this regard, the schedular evaluations in this case are not inadequate.  A rating in excess of those assigned is provided for certain manifestations of the service-connected left knee arthritis with limitation of flexion and limitation of extension, but the medical evidence reflects that those manifestations are not present in this case.  Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disability, as the criteria assess limitation of range of motion and additional functional loss.  Accordingly, this issue need not be referred for consideration of an extraschedular rating.

After review of the evidence, the evidence of record does not warrant ratings in excess of those assigned for the left knee arthritis with limitation of flexion and extension at any time during the period pertinent to this appeal.  See 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); see also Fenderson, 12 Vet. App. at 126.  Finally, in reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

An increased evaluation for the service-connected left knee arthritis with limitation of flexion is denied.

A compensable evaluation for the service-connected left knee limitation of extension is denied.


REMAND

Remand is required to obtain a comprehensive etiological opinion.  VA has a duty, once an examination is provided, to obtain an adequate examination.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  Such an examination includes an etiological opinion that addresses all theories of entitlement and provides an adequate rationale or explanation.  Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007).  Multiple etiological opinions have been obtained in this appeal, to include opinions dated May 1992, January 2010, March 2010, May 2013, July 3, 2013, and July 8, 2013.  Taken cumulatively, these opinions do not address all of the theories of entitlement raised by the Veteran and the evidence.  In addition, at least one of the opinions contains internally conflicting statements.  Accordingly, the Board cannot decide the service connection issue on appeal prior to obtaining a comprehensive opinion. 

The Veteran has the following bilateral flat feet relevant diagnoses:  flat feet/pes planus; degenerative joint disease of the bilateral feet; metatarsalgia; hammertoes; and hallux valgus.  The Veteran has alleged that his feet disabilities are either due to infectious gonorrhea or gonococcal (GC) arthritis he contracted during service or to his service-connected left knee disability.  The Veteran's STRs indicate that the Veteran entered service in May 1955 with no feet abnormalities noted.  Five months later, medical board proceedings were begun based on right ankle and left knee swelling.  The Veteran reported a penile drip after sexual exposure for which he took some penicillin acquired from an associate.  It was found that the Veteran had a gonorrheal infection that was self-treated inadequately.  It was noted that GC arthritis was a possibility, but a definitive diagnosis could not be made.  An orthopedic consultation indicated bilateral pes planus, more severe on the left, valgus and marked peroneal muscle spasm, mostly on the left.  The impression was rheumatoid arthritis of the left knee and right ankle.  Based on ankle and knee pain prior to service and a reoccurrence of symptoms 10 days into basic training, it was felt that discharge was appropriate.

A February 1956 VA examination was conducted.  The Veteran reported left foot deformity since age 5.  A foot x-ray report noted no evidence of fracture, dislocation, or bone or joint injury or disease.  The diagnosis was deformity of the left foot, possibly residual poliomyelitis.  The examination showed considerable pronation with complete collapse of the longitudinal arch, moderate inner border bulge, and full range of motion of the foot.  An April 1992 VA examination with May 1992 opinion provided diagnoses of pes planus, hallux valgus, and hammertoes.  The impression was residuals of suspected GC arthritis and bilateral pes planus sustained in the military.  The examiner stated that the flatfeet are more than likely posttraumatic and that he had "a feeling" that the disorders are more than likely related to military service.  This opinion is equivocal, it is not clear that the examiner reviewed the highly relevant STRs, and it is unclear what trauma the examiner referred to.  A January 2010 VA examiner opined that the feet disorders are unrelated to GC arthritis and that pes planus is congenital.  This opinion only addresses GC arthritis, does not address the implications of a finding that the disorders are congenital, and does not differentiate between all the feet diagnoses.  

A March 2010 VA examiner found that it was less likely as not that the foot condition had anything to do with the left knee disability, noting that the disorders were independent.  The examiner also stated that there was a congenital predisposition to developing these foot abnormalities and the condition was completely unrelated to service.  This opinion does not address the aggravation aspect of secondary service connection, did not provide adequate rationale, and did not address the implications of a finding that the disorders were congenital.  A May 2013 VA examiner diagnosed metatarsalgia, hammer toes, hallux valgus, and degenerative arthritis, and opined that the disorders were less likely due to service because there was no mention of metatarsalgia, hammertoes, or hallux valgus during service and the Veteran was only in service for 5 months.  The opinion did not address pes planus and incorrectly required medical documentation of the disorders during service as a prerequisite for service connection.
  
A July 3, 2013 VA medical practitioner found that the disorder was less likely proximately due to or aggravated by the left knee condition or service, to include any venereal disease.  The examiner noted that the pes planus and hallux valgus were present at the time of the left knee disability in 1955, so it did not cause or aggravate the foot conditions.  This rationale does not address aggravation of the conditions by the knee and also suggests that the pes planus and hallux valgus, which were not noted on entrance, were present during service.  Next, the examiner opined that hallux valgus and pes planus were present from childhood, because hallux valgus is associated with pes planus, which is a familial structure.  This explanation does not account for the presumption of soundness or, if it is indicating the condition is congenital, any implications of that finding.  Then, the examiner noted that the structural deformities were consistent with acquired flat foot, which seems to conflict with the finding that the pes planus was a familial structure and present from childhood.  Finally, the examiner found that the pes planus pre-existed and was not aggravated by service; this finding was made without rationale and does not account for the presumption of soundness.  Finally, the examiner noted that certain STRs in VBMS were not readable.  The Board notes that there are two copies of the noted STR located in VBMS; one is not readable and one is quite clear. 

A July 8, 2013 VA medical practitioner found the hallux valgus, metatarsalgia, and hammertoes was not proximately due to or aggravated by the left knee disability because there was no evidence in the STRs, the feet conditions were relatively recently diagnosed, and the disorders were consistent with aging.  This secondary service connection opinion appears to provide rationale for a direct service connection opinion.  Additionally, the rationale also does not address aggravation.  

Accordingly, the case is REMANDED for the following action:

1.  Obtain an opinion regarding the etiology of the Veteran's foot disorders from a VA medical practitioner who has not yet provided an etiological opinion.  The entire claims file should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review.  If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review.  An explanation for all opinions expressed must be provided.  If an opinion cannot be provided without resort to speculation, it must be noted in the opinion report, and an explanation provided for that conclusion.  

The examiner is first directed to the following medical records:  the Veteran's STRs; the February 1956 VA examination and x-ray report; the May 1992 VA examination report; the January 2010 VA examination report; the March 2010 VA addendum opinion; the May 2013 VA examination; the July 3, 2013 VA etiological opinion; and the July 8, 2013 VA etiological opinion.  The examiner must also address the Veteran's lay statements.

After a review of the above-noted records and any other relevant records, the examiner must provide the following opinions for each of the diagnosed foot disorders - pes planus, degenerative joint disease, hallux valgus, metatarsalgia, and hammertoes:

1) is it at least as likely as not that the disorder is congenital?

2) if the disorder is congenital, is it a congenital defect or disease?  A defect is defined as a structural or inherent abnormality or condition which is more or less stationary in nature.  A disease is any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown.

3) if the disorder is a congenital defect, then was it subject to a superimposed disease or injury?

4) if the disorder is a congenital disease, then was it aggravated during service, where aggravation means the disease progressed during service at a greater rate than normally expected according to accepted medical authority?
   
5) if the disorder is not congenital, then is it at least as likely as not that the disorder was caused or aggravated by active service, including a gonorrheal infection?  The practitioner must presume each of these disorders did not pre-exist service.

6) if the disorder is not congenital, then is it at least as likely as not caused by the service-connected left knee disability?  The practitioner must presume each of these disorders did not pre-exist service.

7) if the disorder is not congenital, then is it at least as likely as not aggravated by the service-connected left knee disability?  The practitioner must presume each of these disorders did not pre-exist service.

For each conclusion reached, the examiner must provide a supporting explanation, to include citations to medical literature or relevant evidence in the record.  

	2.  Review the examination report to ensure that it is in complete compliance with the very specific directives of this remand.  If the report is deficient in any manner, the AMC must implement corrective procedures.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  

3.  After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated.  If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative.  After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




______________________________________________
CHERYL MASON
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs