Citation Nr: 1339005 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 05-06 303 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a bilateral eye disability, to include as secondary to hypertension. 2. Entitlement to an increased rating for internal derangement of the right knee with traumatic arthritis, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD J. Andrew Ahlberg INTRODUCTION The Veteran served on active duty from January 1979 to July 1995. This case was previously before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The case was remanded by the Board for additional development in March 2009, August 2011, and September 2012 and is now ready for appellate review. In June 2013, the Board requested the opinion of a medical specialist from the Veterans Health Administration (VHA). The requested opinion was received by the Board in August 2013 and, later in that month, the Board provided the Veteran and his representative with a copy of that opinion, and indicated that he was entitled to submit additional evidence or argument within 60 days of the date of that letter. Thereafter and still later in August 2013, the Veteran's representative acknowledged the VHA opinion and submitted no further argument in response. See generally 38 C.F.R. §§ 20.901, 20.903. FINDINGS OF FACT 1. The weight of the competent evidence is against a conclusion that the Veteran has an eye disability that is etiologically related to service or service-connected hypertension, to include by way of aggravation. 2. For the entire appeal period, the Veteran's service-connected right knee disability has been manifested by meniscal tear with symptoms of locking, pain and effusion; otherwise, there has been limitation of motion no worse than 5 degrees of extension and 90 degrees of flexion and no ankylosis, subluxation or instability, impairment of the tibia or fibula or genu recurvatum. CONCLUSIONS OF LAW 1. A current eye disability was not incurred in or aggravated by service and is not proximately due to or the result of service connected hypertension. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2013). 2. The criteria for a 20 percent rating, but no higher, for internal derangement of the right knee with traumatic arthritis have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5003, 5010, 5256-63 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g. Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353-3,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: Veteran status, existence of a disability, a connection between a Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding claims for increased ratings, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, 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 (Fed. Cir. Sept. 4, 2009). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in a May 2004 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claims on appeal, what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. The August 2004 decision reflects the initial adjudication of the claims after issuance of this letter. A March 2007 letter provided the Veteran with the information pertaining to the assignment of disability ratings and effect dates, and the type of evidence that impacts those determinations, mandated by Dingess/Hartman. Any prejudice resulting from the timing of the March 2007 letter was cured thru readjudication by supplemental statements of the case, most recently in February 2013. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided. Pertinent medical evidence associated with the claims file consists of the Veteran's service treatment reports (STRs), available post-service treatment records, and reports from VA examinations and the aforementioned VHA opinion addressing the claim for service connection at issue. Also of record and considered in connection with the appeal as various written statements provided by the Veteran, and by his representative and others, on his behalf. The Veteran was last afforded VA examination of his right knee in September 2011. This examination report provides all findings necessary to adjudicate the increased rating claim, to include functional impairment on use. Since this examination, the Board finds no lay or medical evidence of record suggesting an increased severity of disability to suggest that a higher rating may be warranted. Thus, further examination is not warranted. The Board has also obtained a VHA examiner opinion for the claimed bilateral eye disability. This examination report reflects an accurate review of the factual history as deemed by the Board, discussion of the pertinent facts including review of medical literature, and fully addresses the questions posed by the Board. The Board finds that the VHA opinion fully satisfies VA's duty to provide opinion in this case. The RO, as directed by the most recent remand dated in September 2012, contacted the Veteran later in that month requesting (which was not the first such request) that he provide the properly signed authorization to obtain records of private treatment for eye and right knee disabilities. The Veteran, as set forth in a formal memorandum completed in November 2012, did not reply to this letter, and this memorandum also indicated that there were no additional VA treatment reports pertaining to the right knee or eyes. After being furnished with the August 2013 VHA opinion, the Veteran replied in October 2013 that he had no further argument or evidence to submit, and requested that the Board immediately proceed with his claim. As such, and as the Board otherwise finds that there has been substantial compliance with the Board's prior remand directives, no further RO action to develop these claims is necessary. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In summary, the duties imposed by the VCAA have been considered and satisfied. The Veteran has been notified and made aware of the evidence needed to substantiate the claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claims. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of any matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 539, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the U.S. Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. The Board notes, at the outset, that it has reviewed all of the evidence of record, to include in the Veteran's paper claims file and the paperless, electronic (Virtual VA) file. (The Virtual VA file reflects no pertinent information not physically of record.) Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. A. Service Connection Claim Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to undercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit recently clarified that the law providing for awards of service connection on the basis of continuity of symptomatology is limited to "chronic" diseases listed under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The eye disabilities at issue in the instant case are not contemplated by any of the diseases listed under 38 C.F.R. § 3.309(a). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (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. Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009. A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App 370, 374 (2002). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Summarizing the pertinent evidence with the above criteria in mind, the STRs reflect treatment for a subconjunctival hemorrhage in the left eye in 1981; conjunctivitis in the left eye in 1992, and a foreign body in the right eye in 1994. Post service, the Veteran did not refer to an eye disability in his initial application for service connection filed in July 1995 and a VA examination conducted in September 1995 reflected a negative examination of the eyes and no complaints related thereto. The first post service clinical evidence pertaining to the eyes is contained in a private treatment report dated in April 2000 noting a visit to the emergency room due to an unspecified eye injury. A private clinical report dated in December 2000 noted treatment for bilateral conjunctivitis. Private clinical reports dated in 2003 and 2004 reflect a corneal abrasion in the left eye. One such report dated in October 2003 referred to epithelial staining in the left cornea with a history of recurrent erosions. A February 2004 letter from a private ophthalmologist reflects treatment by this physician from October 2003 for a corneal abrasion, at which time the Veteran was noted to have an increased "cup to disc ratio" that was said to place him at risk for possible glaucoma. A February 2005 letter from this physician noted that the Veteran had glaucoma in each eye. Reports from an April 2009 VA examination, documented to have been based on a review of the claims file, noted a five year history of glaucoma. Following the examination, the physician found that it was less likely than not that the Veteran's glaucoma (described therein as "primary open angle glaucoma") was caused by or aggravated by the Veteran's hypertension or a subconjunctival hemorrhage, conjunctivitis, or corneal abrasion sustained during active duty. The rationale for the opinion was that none of these conditions have been shown to cause glaucoma. The Veteran was afforded another VA examination in September 2011 by the same physician, the reports from which again document review of the claims file, and she reached the same conclusions, based on the same rationale, rendered by her in April 2009. There is otherwise no medical examiner opinion of record linking a current eye disability to service, or has being proximately due to service-connected hypertension. However, the record does reflect a medical article "Living with Glaucoma," dated in 2011 authored by the American Health Assistance Foundation, indicating that hypertension is a risk factor (classified alternatively therein as a "strong" and "potential" risk factor) for the development of open-angle glaucoma. Also of record is response dated in September 2009 to a WebMD "[a]sk your question" query indicating that high blood pressure may increase the risk for the development of glaucoma. To clarify the medical record, as indicated, the opinion from a VHA medical expert was requested. In the request for this opinion, the medical expert was directed to base the opinion on review of the evidence, his/her medical expertise, and sound medical principles. The first conclusion in the VHA opinion completed in August 2013 was that it was less likely than not that the Veteran's glaucoma was caused by the subconjunctival hemorrhage in the left eye during service in 1981. The rationale provided was that there is no casual relationship between a subconjunctival hemorrhage and glaucoma and that a goniometer in December 2003 noted open angles with no indication of angle recession. The expert also found that it was less likely than not that the Veteran's glaucoma was caused by conjunctivitis in the left eye or a corneal abrasion in the right eye, noting that there is no causal relationship for either condition and glaucoma. The medical expert also found that it was less likely than not that the Veteran's glaucoma was caused by or aggravated by his service connected hypertension. In making this determination, the expert noted that there is "no established causal relationship between high blood pressure and glaucoma." In discussing the 2011 "Living with Glaucoma," article authored by the American Health Assistance Foundation and September 2009 WebMD response referenced above, the expert, in the context of the matter of whether hypertension aggravates glaucoma, commented that the 2011 article only stated that hypertension was a potential risk factor for glaucoma and that the WebMD response only indicated that high blood pressure may increase the risk for glaucoma. She further stated as follows: A review of multiple other recent articles including ones from The Glaucoma Foundation, EyeNet Magazine of the American Academy of Ophthalmology, Preferred Practice Patterns of the American Academy of Ophthalmology, Clinical and Experimental Optometry, and Ophthalmology Management indicate the following: Glaucoma is a multifactorial disease. There does not appear to be a definitive study establishing the relationship between high blood pressure and worsening glaucoma. There is actually a better established relationship between low blood pressure and worsening glaucoma than of high blood pressure and worsening glaucoma. [emphasis added]. This is felt to be due to the OPP (ocular perfusion pressure) being decreased with low blood pressure, causing reduced blood flow to the optic nerve, making it more susceptible to damage from increased intraocular pressure of glaucoma. Some studies suggest that systemic hypertension is a protective factor in glaucoma in younger patients, since it provides a higher OPP. Studies are still ongoing on the relationship between both high and low blood pressure and glaucoma risk; however, there is presently no definitive evidence that would allow me to say that this patient's glaucoma has been aggravated by his hypertension. The examiner also found that it was less likely than not that the epithelial staining in the left cornea in October 2003 was manifested in service or was causally related to in-service eye trauma. The rationale provided for this opinion was based on a review of the records from 2003 that indicated the abrasion was the result of having being hit one day prior while playing basketball [rather than an injury in service.] Finally, the medical expert found that it was less likely as not that the reported "history of recurrent erosions" were manifested in service or were causally related to eye trauma in service. In her rationale for this opinion, the expert noted that her review of the clinical records did not reveal any evidence of the Veteran having an abrasion "without having trauma immediately prior," and that she only find evidence that the Veteran had reported a history of recurrent erosions and could find no evidence in the records that the Veteran actually had recurrent erosions. The examiner explained that recurrent erosions occur spontaneously and repeatedly often during sleep or upon wakening, and are due to damage to the corneal epithelium or basement membrane from a corneal dystrophy, surgery, or trauma. She again noted that, on each occasion that the Veteran had a corneal abrasion, it was preceded immediately by trauma, and that such repeated abrasions due to trauma cannot be described as recurrent erosions. The expert further explained that if she had found following an incident of trauma to the cornea that the Veteran had developed spontaneous episodes of corneal abrasions not preceded by trauma, that would indicate recurrent erosions, but that no such instances were shown. She concluded by noting that there was no evidence of any corneal dystrophies; that all examinations (aside from those necessitated by traumatic abrasions) showed normal corneas; and that there was no evidence of scaring to the cornea. Applying the pertinent legal criteria to the facts summarized above, the Board finds that the weight of the competent evidence is against a conclusion that the Veteran has an eye disability that is etiologically related to service or service-connected hypertension, to include by way of aggravation. The most probative evidence consists of the August 2013 VHA opinion which found that it is less likely than not that the Veteran's glaucoma was due to events in service or, alternatively, caused or aggravated by service-connected hypertension. With regard to the direct service connection theory, the VHA examiner considered the STR entries and the Veteran's allegation of recurrent erosions, but found that there was no causal relationship between glaucoma and in service treatment for left eye conjunctivitis or subconjunctival hemorrhage, or corneal abrasion of the right eye. This examiner found that the overall evidentiary record did not support the Veteran's report of recurrent erosions since service, and attributed epithelial staining first documented in October 2003 to an injury reported by the Veteran one day previous. The Board finds that the VHA examiner's opinion is supportable by the evidentiary record. With regard to the secondary service connection theory, the VHA examiner considered the STRs, medical treatises submitted by the Veteran, and additional medical articles researched by the VHA examiner. The VHA examiner concluded that the medical research to date did not provide definitive evidence supporting a causal connection between hypertension and glaucoma and even noted that systemic hypertension may be a protective factor for developing glaucoma in younger patients. In addition to the negative August 2013 medical expert's opinion, the VA physician who examined the Veteran in April 2009 and September 2011 rendered negative opinions with respect to the claim, and there is otherwise no opinion, specific to the Veteran, from a medical professional linking glaucoma to hypertension or any other current eye disability to service or to the service connected hypertension. On the other hand, the evidence tending to support this claim consists of the Veteran's self-description of recurrent erosions since service, his self-diagnosis and opinion in this case, and the medical articles which he submitted. The medical articles have some probative value in this case as it suggests that hypertension in general may pose a risk factor for developing glaucoma. However, the probative weight of this evidence is slight as it does not speak to the specific facts of this case. Additionally, the probative value of the medical article information pales in comparison to the opinion of the VHA examiner who has reviewed multiple medical treatise articles and applied this information, along with her medical training, to the specific facts of this case. The VHA examiner explained her reasons for finding that the positive article/treatise evidence does not support the claim, and she supported her rationale with citation to five other medical journal articles/treatises that she indicated did not find a link between glaucoma and service. While the Board recognizes that one of the bases provided by the examiner for minimizing the probative value of the 2011 article by the American Health Assistance Foundation was that this article only found hypertension to be a "potential" risk factor for the development of open angle glaucoma when, in fact, this article alternatively (and confusingly) posited that hypertension was a "strong" risk factor, such does not in any significant way minimize the probative value of the medical expert opinion given its comprehensive nature and the fact that it was otherwise supported by a thorough rationale. With respect to the Veteran's allegations of injury, continuity of symptomatology and personal opinion, the Board places substantially greater weight to the opinion of the VHA examiner who has much greater training and expertise than the Veteran in identifying the potential sequelae of various eye injuries and diseases, the characteristics of recurrent erosions and the potential causes of various eye disabilities. Simply stated, the VHA examiner has much greater competence than the Veteran in determining that he has not manifested recurrent erosions since service, and that his glaucoma is not due to events in service or, alternatively, caused or aggravated by service-connected hypertension. Also weighing against the claim, and the Veteran's credibility, is the fact that he did not file a claim for service connection for an eye disability until March 2004, well over eight years after service, or refer to an eye disability in his original application for service connection for numerous other disabilities filed in July 1995. This evidence tends to show that an eye disability did not exist until many years after service and, clearly, does not provide persuasive evidence to support the Veteran's theory. In any event, the Board finds that the VHA examiner's opinion regarding the actual onset of the Veteran's eye disorders to be the most probative evidence in support of the claim. Based on the foregoing, service connection for bilateral eye disability is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a bilateral eye disability. As such, that doctrine is not applicable, and the claim for service connection must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert, supra. B. Increased Rating Claim Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. A Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis herein is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the scheduler criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant 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. §§ 4.10, 4.40, 4.45. The Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202 (1995). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. Furthermore, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis context, the Board should address its applicability. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved. If the limitation of motion is noncompensable, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003. Traumatic arthritis is rated as for degenerative arthritis. DC 5010. Standard range of knee motion is from zero degrees (on extension) to 140 degrees (on flexion). See 38 C.F.R. § 4.71, Plate II. Slight recurrent subluxation or lateral instability of a knee warrants a 10 percent rating under DC 5257. A 20 percent rating requires moderate recurrent subluxation or lateral instability, and a 30 percent evaluation is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. VA's General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003/5010 and 5257, respectively. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604(1997). In VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998), the VA General Counsel further explained that, to warrant a separate rating, the limitation of motion need not be compensable under DC 5260 or 5261; rather, such limited motion must at least meet the criteria for a zero (0) percent rating. Under DC 5260, a 10 percent is warranted where flexion is limited to 45 degrees. A rating of 20 percent is warranted where flexion is limited to 30 degrees and a rating of 30 percent is warranted were flexion is limited to 15 degrees. 38 C.F.R. § 4.71a. Under DC 5261, a 10 percent rating is warranted where extension is limited to 10 degrees and a 20 percent rating is warranted where extension is limited to 15 degrees. A rating of 30 percent is warranted where extension is limited to 20 degrees while a 40 percent rating is warranted where extension is limited to 30 degrees. A 50 percent is warranted where extension is limited to 45 degrees. 38 C.F.R. § 4.71a. The VA General Counsel has held that separate ratings under 38 C.F.R. § 4.71a, DCs 5260 and 5261 may be assigned for limitation of flexion and extension of the same joint. See VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). The Veteran has a history of right knee meniscectomy. Under DC 5258, a 20 percent rating is warranted for dislocated semi-lunar cartilage with frequent episodes of "locking," pain and effusion into the joint. 38 C.F.R. § 4.71A. Under DC 5259, a 10 percent rating is warranted for symptomatic removal of semi-lunar cartilage. 38 C.F.R. § 4.71a. The VA Office of General Counsel has also stated that DC 5259, removal of semilunar cartilage, may result in complications producing loss of motion. As such, limitation of motion is a relevant consideration under DC 5259. VAOPGCPREC 9-98 (Aug. 14, 1998). With the above criteria in mind, the relevant facts will be summarized. The STRs reflect an injury to the right knee sustained in a basketball game and treatment for internal derangement in the right knee. After service, a November 2001 VA examination resulted in a diagnosis of traumatic arthritis of the right knee with cartilage and ligament damage of "minimal" disability. Motion in the knee at this examination was from full extension to 120 degrees. Thereafter, a July 2002 rating decision granted service connection for internal derangement of the right knee with traumatic arthritis. A 10 percent rating was assigned under DCs 5010-5257. (Hyphenated Diagnostic Code numbers reflects the assignment of a rating under the first Diagnostic Code number using the criteria of the second Diagnostic Code. See 38 C.F.R. § 4.20.) Following knee surgery (arthroscopy with partial lateral meniscectomy and chondroplasty) by a private physician in June 2004, a January 2005 rating decision assigned a temporary 100 percent rating for convalescence under 38 C.F.R. § 4.30 from June 23, 2004. Effective from August 1, 2004, the 10 percent rating was continued, and this 10 percent rating has been in effect until the present time. With regard to pertinent clinical evidence during the appeal period, reports from a January 2005 VA examination shows the Veteran reporting that his right knee felt better after the June 2004 surgery and physical therapy. Symptoms in the right knee were said to include daily sharp pain, at a level of 7/10 in severity, that traveled up the right thigh. He reported that Motrin provided relief and it was noted that the Veteran walked with a permanent limp that had not been improved by his surgery. Bending of the knee was said to be difficult and he reported occasional swelling. With respect to occupational limitations, the Veteran reported that he worked in a sedentary position and that the knee did not bother him while sitting but that walking aggravated his right knee disability. The examiner stated that the right knee disability interfered with daily activities especially with increased walking or standing. There were no additional limitations with repetitive use or flare-ups. The physical examination of the right knee in January 2005 showed no deformities, abnormalities, edema or palpable tenderness. Motion was to full extension and flexion without pain. The ligaments and meniscus were stable and the McMurray's and Lachman's tests were negative. A slight meniscal cyst was noted laterally; there was stability to varus and valgus stress anteriorly and posteriorly; and no crepitus was noted. Active motion did not produce weakness, fatigue, or incoordination, and in rendering the diagnosis, the examiner stated that there was "minimal" disability. A February 2005 clinic note from the physician who performed arthroscopic surgery in June 2004 noted that the Veteran described symptoms of right knee locking, give-way and some weakness. The examiner indicated that the most notable finding on examination was quadriceps atrophy with strength "nowhere near" the other side. Otherwise, there was no knee instability. In January 2006, the Veteran described right knee swelling which was treated with needle aspiration. He was given an injection of Marcaine, Lidocaine and Dep-Medrol in February 2006. A February 2006 magnetic resonance imaging (MRI) scan was interpreted as showing a large tear of the body and the anterior horn of the lateral meniscus extending to the upper articular surface of the meniscus with associated edema in adjacent tissues, and moderate-sized joint effusion extending into a large Baker's cyst. Surgical intervention was recommended. He continued to demonstrate large effusion in May 2006. An August 2006 VA outpatient treatment report reflected complaints of right knee pain, and the examiner indicated that he would add five weeks of injections of hyalgan to the treatment regimen for his right knee. Clinical findings were significant for no effusion, full range of motion, minimal joint line tenderness and no ligamental instability. A September 2006 VA outpatient treatment report documents the completion of these injections. At this time, the Veteran's right knee demonstrated full range of motion (FROM) and no effusions, but swelling was seen. Another clinic record that same month noted right knee flexion to 125 degrees with stability to valgus/varus stress test as well as anterior/posterior drawer sign. In June 2008, the Veteran underwent surgery by a private physician for a medial and lateral meniscal tear and chondromalacia. The Veteran was described as manifesting debilitating knee pain and effusion with mostly lateral-sided pain. The post-operative diagnoses included septic right knee, Another VA examination of the right knee was conducted in April 2009, at which time the Veteran described right knee pain of 7/10 severity increased to 10/10 severity with activity. Aggravating factors were said to include standing for six minutes, walking one block, climbing and going down stairs, lifting 15 pounds, or driving over 30 minutes. The Veteran described periodic swelling in the right knee and it was noted that he had developed a cyst behind the knee. Upon physical examination, motion in the right knee was from full extension to 130 degrees of flexion. There was lateral tenderness, no fluid and slight crepitus. There was a Baker's cyst behind the right knee measuring 6 X 4 cm that was moderately tender. The Veteran complained about more severe pain in the left knee than the right and, in rendering the assessment, the examiner indicated that there was "moderate" disability. The examiner stated that the knee disability had no effect on the Veteran's usual occupation; that there were no additional limitations with repetitive movement or flare-ups; and that there was no instability. A private clinical report dated in April 2009 again documented greater complaints in the left knee than the right. X-rays were said to reveal considerable, nearly "bone-on-bone" joint space narrowing of the left knee and tricompartmental narrowing in the right knee but without the complete loss of joint space in the right knee. Also shown in the right knee was a possible small osteochondroma. The possibility of a total knee replacement was discussed, but the Veteran expressed a desire to delay that procedure as long as possible. A full series of supartz injections was recommended. A May 2009 MRI was interpreted as showing a large horizontal tear of the body and anterior horn of the lateral meniscus associated with parameniscal cyst, chondral thinning/Grade II chondromalacia, mild stranding Hoffa's fat space and thickening medial retinaculum perhaps due to prior intervention, and likely tendinopathy. A June 2010 report prepared by this same private examiner noted that the examination of the right knee showed a prominence laterally that was consistent with large osteophytes. There was diffuse joint line tenderness, patellofemoral crepitus and a moderate Baker's cyst. The Veteran was said to lack about 5 degrees of full extension in the right knee and have flexion to 110 degrees. At the most recent VA examination of the right knee in September 2011, the Veteran described undergoing an additional arthroscopic surgery in 2010 which involved debridement. He was advised that his right knee was "bone on bone" with the eventual need for a total knee replacement. It was reported that the Veteran used a neoprene brace and took nonsteroidal anti inflammatory drugs for pain. Upon physical examination, the Veteran walked with a normal gait. There was tenderness and embossing of the joint line. Motion was from 90 degrees of flexion to full extension with pain at the end of the arc. The cruciate and collateral ligaments were intact and the Lachman's and McMurray's tests were negative. There was no subluxation of the patella and repetitive motion showed no change in range of motion, coordination, fatigue, endurance, or pain. No flare-ups were described and there was no incoordination. The examiner did observe that the Veteran had fatigue and lack of endurance which were said to interfere with walking and exercise. The examiner commented that the Veteran had marked degenerative changes in the right knee with secondary pain. Additional evidence include statements from several witnesses with personal observations of the Veteran's right knee disability. These witnesses describe the Veteran has having considerable difficulty walking and using stairs, having to rest after walking 30 feet, having uncontrollable leg shaking when standing for prolonged periods of time, having episodes of knee give-way, having loss of balance while coming down stairs, having difficulty getting out of an automobile, walking with a limp due to numbness and weakness, and having sleep difficulty due to tremendous pain and inflammation. A co-worker indicated that the Veteran was unable to take medications due to the nature and requirements of his employment, and having difficulty performing job duties which include pursuing suspects and backing-up fellow federal agents. Applying the pertinent diagnostic codes pertaining to disability of the knees to the clinical evidence set forth above, the Board finds that the criteria for a 20 percent rating have been met under DC 5259. In this respect, during the appeal period, the Veteran underwent repair of medial and lateral meniscal tear in June 2008 and later demonstrated another meniscal tear by means of a May 2009 MRI. The Veteran reported to a VA examiner in September 2011 that he had undergone another arthroscopic procedure in 2010 involving debridement, but those records have not been associated with the claims folder (notably, the Veteran did not respond to VA's request to provide relevant records). Nonetheless, the history provided by the Veteran is consistent with the evidentiary record. See generally Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (holding that a layperson is competent to report a contemporaneous medical diagnosis). A February 2005 private clinic record recorded the Veteran's complaint of "locking," give way and weakness. Examination was significant for quadriceps strength weakness and right knee swelling requiring aspiration. A February 2006 MRI described, inter alia, moderate-sized joint effusion. Despite surgical intervention in 2008, these symptoms persisted. Given the above, the Board finds that the Veteran meets the criteria for a 20 percent rating under DC 5259 for the entire appeal period. However, the Board finds no basis for a higher rating still. With regard to limitation of motion under DCs 5260 and/or 5261, the evidence shows that the Veteran's service-connected right knee disability has been manifested by extension to, at worst, 5 degrees, and flexion to, at worst, 90 degrees. The Veteran himself has not expressed limitation of motion in terms of actual degrees. These findings do not support even the minimum, compensable rating under either diagnostic code. As the criteria of DC 5259 contemplate painful motion, a separate rating for painful motion under 38 C.F.R. § 4.59 or for arthritis with noncompensable painful motion is not warranted. See generally VAOPGCPREC 9-98 (Aug. 14, 1998). Thus, the Board finds that no higher rating is assignable on the basis of limitation of motion. To the extent the Veteran argues otherwise, the Board places greater probative weight to the findings of the private and VA examiners who have measured right knee motion with use of a goniometer which is more accurate than any lay descriptions. The Board also finds that no other diagnostic code provides a basis for any higher rating for the right knee. While separate ratings may be assignable for limited motion and instability (see VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997) and VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998)), the record does not reflect objective findings of instability or subluxation in the right knee. The Veteran and his witnesses describe right knee unsteadiness with falling episodes which provides some evidence supportive of a separate rating for instability/subluxation. However, the VA examinations in January 2005, April 2009 and September 2011 found no evidence of instability or subluxation. Similarly, the Veteran's private orthopedic surgeon has reported no right knee instability. The Board places greater probative weight to the findings of the private and VA examiners who have greater training and expertise than the Veteran and his lay witnesses in determining clinical instability or subluxation. As such, an alternative, or additional, rating under DC 5257 is not warranted. Moreover, the post-service radiological studies, treatment notes, and the VA examination reports simply do not reflect objective findings of ankylosis in the right knee, or any suggestion that the Veteran effectively experiences ankylosis of the right knee. As indicated above, the Veteran has demonstrated active knee motion from at least 5 degrees of extension to 90 degrees of flexion with multiple assessments of even greater motion. As such, a higher rating cannot be assigned on the basis of ankylosis under DC 5256. Furthermore, there have not been any findings of impairment of the tibia or fibula, or genu recurvatum. As such, a higher rating cannot be assigned under DCs 5262 or 5263, respectively. See 38 C.F.R. 4.71a. As the Veteran has been provided a 20 percent rating for dislocated semilunar cartilage under DC 5258, a separate 10 percent rating under DC 5259 for symptomatic removal of semilunar cartilage would violate the rule against pyramiding. 38 C.F.R. § 4.14. In making the above determinations, the Board recognizes the fact that the Veteran's right knee has necessitated surgical interventions and injections, and that the record reflects that the condition therein may deteriorate at some point so as to warrant at total knee replacement. However, application of the pertinent criteria to the clinical record currently demonstrated as set forth above simply reveals no diagnostic code under which further increased compensation would be warranted. With regard to giving proper consideration to the effects of pain in assigning a disability rating, as well as the provisions of 38 C.F.R. §§ 4.40 and 4.45 and the holdings in DeLuca and Mitchell, supra, the Veteran and his witnesses describe difficulty performing work and routine daily activities due to pain, give-way and loss of balance. A co-worker indicated that the Veteran could not alleviate the pain effects with use of medications due to his job requirements. The Board finds that these descriptions of disability and impairment are credible and consistent with the evidentiary record. The VA examiner in January 2005 VA examination found that the Veteran's right knee disability interfered with his daily activities, especially with increased walking or standing. However, no additional limitations were found with repetitive use or flare-ups and the overall disability was described as "minimal." A private examiner in February 2005 described quadriceps atrophy with strength "nowhere near" the left knee. An April 2009 VA examiner described an overall "moderate" disability with no additional limitations with repetitive movement or flare-ups. The September 2011 VA examiner described the Veteran as demonstrating fatigue and lack of endurance with walking and exercise, but repetitive motion showed no change in range of motion, coordination, fatigue, endurance, or pain. In totality, the Board finds that the 20 percent rating under DC 5259 contemplates the type of functional impairment described by the Veteran and his witnesses. Even with consideration of his quadriceps atrophy which is indicative of disuse, see 38 C.F.R. § 4.45(f), weakness, fatigue and lack of endurance, the Board notes that these symptoms do not result in any additional limitation of motion as recorded in the examination reports. The Board does not find that, with consideration of these factors, the Veteran meets or more nearly approximates any of the criteria for a higher rating still under any applicable diagnostic code. The Board notes that to the extent it was found above that certain rating criteria were not met for increased compensation for the service connected knee disability, entitlement to increased compensation on the basis of a staged rating for discrete periods of times since the Veteran filed his claim in April 2004 has been considered but has not been demonstrated. See Hart, supra. In this respect, the Veteran has not met or more nearly approximated any of the criteria for a higher rating still at any time during the appeal period. In making its rating determinations above, the Board has also carefully considered the contentions of the Veteran and his witnesses with respect to the nature of the Veteran's service-connected right knee disability and notes that such lay testimony is competent to describe certain symptoms associated with this disability. The Board has specifically relied upon the Veteran's lay description of "locking" and symptoms as supporting a 20 percent rating under DC 5259. As discussed above, the Board has found that the lay witness statements are credible and consistent with the evidentiary record. However, with respect to whether the Veteran meets specific clinical findings to warrant compensation under the various diagnostic codes, the Board finds that the findings from trained medical professionals hold greater probative weight to due their expertise and training as well as more accurate description of disability (e.g., measurement of motion with use of a goniometer, using clinical test maneuvers to determine instability, etc.). Thus, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms of the service-connected disability addressed above. The Board has also contemplated whether the case should be referred for consideration. An extra-scheduler disability rating is warranted if 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 application of the regular scheduler standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-scheduler rating under 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available scheduler evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned scheduler evaluation is, therefore, adequate, and no referral is required. Second, if the scheduler evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant'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 claimant's disability picture requires the assignment of an extra-scheduler rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected knee disability with the established criteria found in the rating schedule. The applicable criteria address various symptoms attributable to knee disabilities to include ankylosis, limitation of motion, the effects of dislocated semilunar cartilage, the effects of removal of semilunar cartilage, impairment of the tibia and fibula, and genu recurvatum. Additionally, the criteria of 38 C.F.R. § 4.59 allow for a minimum amount of compensation based upon painful motion while the criteria of 38 C.F.R. §§ 4.40 and 4.45 provides authority to assign disability rating based upon consideration of the functional effects of disability. Here, the Board finds that the Veteran's right knee disability and functional effects attributable to his dislocation of semilunar cartilage are those contemplated with a 20 percent rating under DC 5259. Higher schedular ratings are obtainable for other aspects of disability, but the Veteran does not meet or more closely approximate those criteria. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology associated with the service-connected disability addressed above. As such, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-scheduler rating for the service-connected disability for the time periods addressed above is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Finally, the Board acknowledges the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009) that a claim for TDIU is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. In this regard, the Veteran reported at the January 2005 VA examination that he worked in a sedentary position and that his right knee disability did not bother him while he sits. Moreover, the April 2009 VA examination reflected the examiner's conclusion that the Veteran's right knee disability had no effect on his usual occupation. As the record does not otherwise reflect actual or effective unemployment due solely to the service connected right knee or disability, the issue of entitlement to TDIU in connection with the increased rating claim on appeal has not been reasonably raised. See Roberson v. Principi, 251 F.3d 1378, 1384 (2001) (once a claimant submits evidence of medical disability, makes a claim for highest possible rating, and submits evidence of unemployability, an informal claim is raised under 38 C.F.R. § 3.155(a)); Comer v. Peake, 552 F.3d 1362, 1367 (Fed.Cir.2009) (the issue of TDIU "is implicitly raised whenever a pro se veteran, who presents cogent evidence of unemployability, seeks to obtain a higher disability rating"). In sum, Board finds that the record supports the award of a 20 percent rating for the entire appeal period, but that the preponderance of the evidence is against a rating in excess of 20 percent for derangement of the right knee with traumatic arthritis for any time during the appeal period; as such, the benefit of the doubt doctrine is not applicable. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7; Gilbert, supra. ORDER Service connection for a bilateral eye disability, to include as secondary to hypertension, is denied. A 20 percent rating for derangement of the right knee with traumatic arthritis is granted. ____________________________________________ T. MAINELLI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs