Citation Nr: 1339581 Decision Date: 12/02/13 Archive Date: 12/18/13 DOCKET NO. 06-17 463 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for arthritis of the left foot. 2. Entitlement to service connection for prostate cancer. 3. Entitlement to an initial rating in excess of 30 percent for degenerative arthritis of the right knee, status-post right total knee replacement. 4. Entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the left knee. 5. Entitlement to a compensable initial rating for degenerative arthritis of the left ankle. 6. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: John F. Cameron, Attorney ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from May 1971 to May 1974. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in July 2004, September 2009, and February 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In the July 2004 rating decision, the RO denied service connection for left foot disability, and such issue was remanded by the Board for further development and adjudication in March 2007. In the September 2009 rating decision, the RO denied service connection for prostate cancer. In the February 2010 rating decision, the RO granted service connection for right knee, left knee and left ankle disabilities, and assigned initial ratings of 30 percent, 10 percent and 0 percent, respectively, effective May 30, 2003, the date of the original claim; the Veteran appealed for higher initial ratings. During the pendency of the claim, the RO, in a May 2011 rating decision, granted service connection for medial subluxation of the left knee, assigning a 10 percent, effective April 13, 2011. In that rating decision, the RO also denied the Veteran's claim for a TDIU. The Veteran submitted a statement in late-May 2011 in which he expressed disagreement with the May 2011 decision. The RO, however, did not accept his statement as a notice of disagreement because it was unable to determine which issue or rating he disagreed with. Nevertheless, the issue of entitlement to a higher rating for left knee subluxation is addressed in the increased rating claim for left knee disability decided herein. Additionally, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that VA must address the issue of entitlement to TDIU in claims for higher ratings when the issue of unemployability is raised by the record. Thus, the Veteran's May 2011 statement noted above raises the issue of unemployability due to service-connected disabilities. A claim of TDIU has again been raised. In October 2013, the Board sent a copy of the Veteran's entire claims file to his attorney, per his request. The derivative TDIU claim, as well as the issues of entitlement to service connection for a left foot disability and prostate cancer, are addressed in the REMAND portion of the decision below and are REMANDED to the RO. FINDINGS OF FACT 1. Prior to January 23, 2010, the Veteran's right total knee replacement was manifested by x-ray evidence of degenerative joint disease, range of motion from zero to 120 degrees, crepitation, and pain, but not by ankylosis, malunion of the tibia and fibula, recurrent subluxation or lateral instability, or severe painful motion or weakness. 2. Resolving any doubt in his favor, from January 23, 2010, the Veteran's right total knee replacement has been productive of chronic residuals consisting of severe painful motion and weakness. 3. The Veteran's service-connected left knee disability is primarily productive of x-ray evidence of degenerative arthritis and range of motion from zero to 90 degrees; but not by recurrent subluxation or lateral instability prior to April 13, 2011, or moderate lateral instability since April 13, 2011. 4. The Veteran's service-connected left ankle disability is primarily productive of x-ray evidence of degenerative arthritis, pain, and normal range of motion. CONCLUSIONS OF LAW 1. Prior to January 23, 2010, the criteria for an initial rating higher than 30 percent for service-connected right knee disability, status-post total knee replacement, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5055, 5257, 5260, 5261 (2013). 2. From January 23, 2010, the criteria for a rating of 60 percent, but no higher, for service-connected right knee disability, status-post total knee replacement, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5024, 5055, 5257, 5260, 5261 (2013). 3. The criteria for an initial rating higher than 10 percent for service-connected degenerative arthritis of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5260, 5261 (2013). 4. The criteria for an initial rating of 10 percent, but no higher, for left ankle degenerative arthritis have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5271 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit (Federal Circuit) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). Duties to Notify and Assist As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim: 1) Veteran status, 2) existence of a disability, 3) relationship between the disability and military service, but also concerning the "downstream" 4) disability rating and 5) effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). This notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). However, if notice was not provided prior to initially adjudicating the claim or, if provided, was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is preserved, so not frustrated, in that the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis. Moreover, as the pleading party attacking the agency's decision, the Veteran has this burden of proof of not only establishing error but also, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of the claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Veteran's right knee, left knee, and left ankle claims arise from his disagreement with the initial ratings assigned following the grants of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA's duty to assist includes assisting him in obtaining his service treatment records (STRs) and pertinent post-service treatment records (VA) and providing an examination when needed to assist in deciding the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The claims file contains the Veteran's service treatment records (STRs), VA and private medical records to include those from Dr. Hall, Dr. Stahl, and Baptist Princeton Health System, records pertaining to the award of disability benefits from the Social Security Administration (SSA), medical articles, and the Veteran's contentions. The Veteran underwent VA compensation examinations to assess the nature and severity of his right knee, left knee, and left ankle disabilities. He has not identified, and the record does not otherwise suggest, any additional existing evidence that is necessary for a fair adjudication of this claim that has not been obtained and that is obtainable. He has received all essential notice, has had a meaningful opportunity to participate effectively in the development of this claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). VA's duties to notify and assist him with the claim have been satisfied. Claims for Higher Initial Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155 (West 2002). Evaluation of a service-connected disorder requires a review of the Veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2 (2013); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. See 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). Evidence to be considered in the appeal of an initial assignment of a disability rating is not limited to that reflecting the current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it is possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). There is a general rule against the "pyramiding" of benefits. See 38 C.F.R. § 4.14; see also Brady v. Brown, 4 Vet. App. 203, 206 (1993). However, the Board acknowledges that a veteran is entitled to separate disability ratings for different manifestations of the same disability when the symptomatology of one manifestation is not duplicative or overlapping of the symptomatology of the other manifestations. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Pertinent Regulations for Evaluating Knee Disabilities Diagnostic Code 5260 provides for the evaluation of limitation of flexion of the knee. See 38 C.F.R. § 4.71a. A noncompensable rating is warranted when leg flexion is limited to 60 degrees. A 10 percent rating is warranted when it is limited to 45 degrees, and a 30 percent rating is warranted where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a (2013). Diagnostic Code 5261 provides for the evaluation of limitation of extension of the knee. A noncompensable rating is warranted when leg extension is limited to 5 degrees. A 10 percent rating is warranted when it is limited to 10 degrees, a 20 percent rating is warranted when it is limited to 15 degrees, a 30 percent rating requires extension limited to 20 degrees; a 40 percent rating requires extension limited to 30 degrees; and a 50 percent rating requires extension limited to 45 degrees. 38 C.F.R. § 4.71a (2013). Pursuant to Diagnostic Code 5262, 10, 20 and 30 percent ratings are warranted for malunion of the tibia and fibula with slight, moderate and marked knee or ankle disability, respectively. A maximum 40 percent rating is assigned where there is evidence of nonunion of the tibia and fibula with loss motion, requiring a brace. 38 C.F.R. § 4.71a (2013). Normal flexion and extension of the knee is from zero degrees to 140 degrees. 38 C.F.R. § 4.71, Plate II (2013). It is possible to receive separate ratings for limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) for disability of the same joint. See VAOPGCPREC 9-2004 (Sept. 17, 2004). Diagnostic Code 5256 contemplates ankylosis of the knee. Ankylosis resulting in a favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees is assigned a 30 percent rating. Ankylosis resulting in flexion between 10 and 20 degrees is assigned a 40 percent rating; ankylosis resulting in flexion between 20 degrees and 45 degrees warrants a 50 percent rating; and extremely unfavorable ankylosis of the knee resulting in flexion at an angle of 45 degrees or more warrants a 60 percent rating. 38 C.F.R. § 4.71a (2013). Under Diagnostic Code 5257, a 10 percent rating is warranted for impairment of the knee with slight recurrent subluxation or lateral instability; a 20 percent rating is warranted for impairment of the knee with moderate recurrent subluxation or lateral instability; and a 30 percent rating is warranted for impairment of the knee with severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a (2013). Under Diagnostic Code 5258, malunion of the tibia and fibula with moderate knee or ankle disability warrants a 20 percent rating. 38 C.F.R. § 4.71a (2013). Under Diagnostic Code 5055, for one year following implantation of a knee prosthesis for a service-connected knee disability, a 100 percent rating is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5055 (2013). Thereafter, a 60 percent rating is assigned when there are chronic residuals consisting of severe painful motion or weakness in the affected extremity; or, a minimum 30 percent rating is assigned. Id. When there are intermediate degrees of residual weakness, pain, or limitation of motion, these intermediate residuals are to be rated by analogy under 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5261, or 5262. Id. VA's General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, respectively. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997). In VAOPGCPREC 9-98, 63 Fed. Reg. 56703 (1998), the VA General Counsel further explained that, to warrant a separate rating, the limitation of motion need not be compensable under Diagnostic Code 5260 or 5261; rather, such limited motion must at least meet the criteria for a 0 percent rating. The VA General Counsel held that a separate rating could also be provided for limitation of knee extension and flexion. VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). Right Knee Disability The RO assigned an initial 30 percent rating for the Veteran's right knee degenerative arthritis, status-post total knee replacement, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5055, effective May 30, 2003. The record reflects that the Veteran underwent a total right knee replacement in August 2001 due to chronic knee pain and severe degenerative arthritis of the right knee. According to follow-up treatment notes dated in September 2001, Dr. J.M.C. indicated that the Veteran's right knee replacement surgery went well. Range of right knee motion was from zero to 120 degrees. The patella tracked normally and the prosthesis was stable. There were the expected degrees of synovitis which the physician indicated were appropriate at that time. There was no significant effusion. Active assisted range of motion exercises was advised. The surgical incision had healed normally. In December 2001, Dr. W.T.H. stated that the x-rays of the knees revealed severe arthritis. According to follow-up treatment notes dated in July 2002, Dr. J.M.C. noted the Veteran's report of a little pain over the lateral retinaculm when he maintained the knee in flexion for prolonged periods. Otherwise, he had no pain while ambulating. It was noted that the Veteran walked with a normal gait. There was no synovitis or effusion about the right knee. Active motion of the right knee was from zero to 120 degrees. The patella tracked normally. The prosthesis remained stable on range of motion and on x-rays. The Veteran continued to do extremely well and was reassured with regard to his mild patellar tendonitis. A follow-up visit in two years was recommended. The Veteran underwent a VA orthopedic examination in May 2004. Right knee range of motion was from zero to 120 degrees and the leg was significantly straighter than the opposite leg. Anterior and posterior cruciates were intact. McMurray's test was positive. The Veteran did not report discomfort in the knee at rest. X-rays of the right knee showed evidence of moderate joint space narrowing. Impression was degenerative joint disease (DJD) of the knee; functional loss due to pain on the right; and no additional limitations. During a VA examination conducted on January 23, 2010, there was evidence of abnormal weight bearing as the Veteran's gait was antalgic. Right knee flexion was 90 to 110 degrees with pain. Extension was normal. Upon repetitive motion, there was additional pain, with an additional loss of 10 degrees flexion. The Veteran had pain at rest and guarding of movement of the right knee. There was also evidence of crepitation, clicks or snaps, and grinding of the right knee, but no evidence of instability. X-rays of the right knee continued to show evidence of moderate DJD. During a January 2011 VA primary care visit, the Veteran requested a magnetic knee brace and insoles. He reported his knee pain as an 8 on a 10 point case. Some facial grimacing was noted. In April 2011, the Veteran underwent a VA general medical examination. His gait was described as antalgic. He had a wide stance. Flexion of the right knee was 90 to 110 degrees with pain. Extension was normal. Following repetitive motion, there was objective evidence of pain and an additional loss of 10 degrees of flexion. There was knee tenderness. Diagnosis was advanced DJD of the knee. Prior to January 23, 2010, the criteria for a rating higher than 30 percent is not warranted for the Veteran's right knee disability. Initially, the Board notes that a 30 percent rating is the maximum allowable for limitation of flexion under Diagnostic Code 5260; therefore a higher rating is not available under such code. Under Diagnostic Code 5055, the rating criteria for a 30 percent disability rating allow that a knee replacement be rated analogous to Diagnostic Codes 5256, 5261, or 5262. The Veteran exhibited normal extension of his right knee during the applicable time period; therefore a higher rating under Diagnostic Code 5261 is not warranted. There was also no evidence of any malunion of the right tibia and fibula, or ankylosis of the right knee, therefore Diagnostic Codes 5262 and 5256 do not provide for an initial rating higher than 30 percent. Recurrent subluxation or lateral instability is not objectively demonstrated. A separate rating under Diagnostic Code 5257 is not warranted. The preponderance of the evidence is against a finding that the Veteran's right knee disability prior to January 23, 2010, was manifested by chronic residuals. The Board considered Dr. W.T.H.'s references to severe or marked arthritis in his right knee in the 2001, 2002, and 2004 treatment notes. Even considering this reference however, chronic residuals to include severe painful motion or weakness have not been approximated. During the applicable time period, the Veteran exhibited normal extension and no worse than 120 degrees of flexion. During a July 2002 private examination, he reported no pain while ambulating and only a "little" pain when in flexion for prolonged periods of time. And while there was pain on range of motion during the May 2004 VA examination, there was no additional limitation upon repetitive use, and no report of pain in the right knee at rest. Overall, chronic residuals of right knee disability prior to January 23, 2010, have not been approximated. However, from January 23, 2010, forward, the criteria under Diagnostic Code 5055 for a higher rating of 60 percent are approximated. During the January 2010 VA examination, the examiner described the Veteran's gait as antalgic. He exhibited further limitation of flexion which was to 90 degrees at worst, with additional pain and an additional loss of 10 degrees of flexion upon repetitive use. Crepitation, clicks, and grinding were also apparent. With resolution of any doubt in the Veteran's favor, the criteria for a 60 percent rating under Diagnostic Code 5055 have been met since January 23, 2010. Diagnostic Code 5055 does not apply a rating by analogy under 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5261, or 5262 when there is evidence of chronic residuals consisting of severe painful motion or weakness in the affected extremity. In evaluating the Veteran's right knee disability under the criteria of DeLuca, supra, Diagnostic Code 5055 specifically contemplates weakness, pain and limitation of motion, even considering the additional 10 degree loss of flexion upon repetitive motion of the right knee during 2011 VA examination. Therefore, an increased rating is not currently warranted based on application of 38 C.F.R. § 4.40 and 4.45 and DeLuca, 8 Vet. App. 202. See also Mitchell, 25 Vet. App. at 38-43. Further, as a 60 percent rating is the maximum rating assigned for motion loss, the Board finds no legal basis for further consideration of 38 C.F.R. §§ 4.40 and 4.45. Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (consideration of 38 C.F.R. §§ 4.40 and 4.45 is unnecessary where an appellant is in receipt of the maximum rating for limitation of motion). In light of the favorable award of 60 percent for the right knee since January 23, 2010, the assignment of separate disability ratings for the right knee since that date is precluded as a matter of law, in light of the "amputation rule" which provides that the combined rating for disabilities of an extremity cannot exceed the rating for amputation at the elective level. 38 C.F.R. § 4.68 (2013). A 60 percent disability rating is assigned if there was an amputation of the thigh, above the knee, at the middle or lower third. 38 C.F.R. § 4.71a, Diagnostic Code 5162 (2013). Amputation of a leg with defective stump and thigh amputation recommended or amputation not improvable by prosthesis controlled by natural knee action may also be assigned a 60 percent rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5163 and 5164 (2013). Thus, considering the "amputation rule" pursuant to 38 C.F.R. § 4.68 and 38 C.F.R. § 4.71a , Diagnostic Codes 5161, 5162-5164, a 60 percent disability rating would be the maximum assignable disability rating for the Veteran's right knee disability. Accordingly, as a matter of law, a disability rating in excess of the 60 percent rating for right total knee replacement is not assignable and therefore, separate disability ratings under Diagnostic Codes 5257, 5260 and 5261 cannot currently be assigned. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Thus, Board concludes that, resolving all benefit of the doubt in favor of the Veteran, for the period from January 23, 1010, the current right total knee replacement warrants a disability rating of 60 percent, but no higher. 38 C.F.R. § 3.102 (2013). See also 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Left Knee The RO assigned an initial 10 percent rating for the Veteran's degenerative arthritis of the left knee, effective May 30, 2003, pursuant to Diagnostic Code 5003-5260. During an examination in March 2000, Dr. J.M.C. noted that the Veteran walked with a normal gait. There was mild synovitis and medial joint line tenderness along the left knee. Active range of motion was from zero to 120 degrees, with slight crepitation. The anterior drawer test was mildly increased. Collateral ligaments were intact. There was a lateral thrust at heel strike. During a December 2000 examination by Dr. A.A., the Veteran's left knee exhibited no swelling. Extension was normal, and flexion was to 100 degrees. There was some tenderness over the anterior aspect of the knee joint. During the May 2004 VA examination, left knee range of motion was from zero to 105 degrees. There was no evidence of crepitus. Anterior and posterior cruciates were intact. McMurray's test was positive. The Veteran did not report discomfort in the knee at rest. X-rays of the left knee showed evidence of severe joint space narrowing. Impression was DJD of the knee and meniscus injury on the left. During the January 2010 VA examination, left knee flexion was 90 to 100 degrees with pain. Extension was normal. Upon repetitive motion, there was additional pain, with no additional loss of flexion. There was bony joint enlargement, crepitus, deformity, effusion, tenderness, pain at rest, and weakness. There was also evidence of clicks and snaps and grinding. There was no evidence of instability. X-rays of the left knee showed evidence of severe DJD. The Veteran's left knee disability mildly to severely affected his daily activities. During the April 2011 VA examination, flexion of the left knee was 90 to 100 degrees with pain. Extension was normal. Upon repetitive motion, there was additional pain but range of motion remained the same. There was lateral tracking/bowing of the left knee/leg. Diagnosis was advanced DJD of the knee. A higher rating under Diagnostic Code 5003 is not warranted for the Veteran's left knee disability because only one joint is involved. The medical evidence shows that the Veteran has exhibited normal left knee extension, and flexion no worse than 90 degrees in the left knee. A rating higher than 10 percent is therefore not warranted under Diagnostic Code 5260 or 5261. The Veteran exhibited additional pain upon repetitive use during the 2004 and 2010 VA examinations, but he had no additional loss of motion. Overall, the Board finds that the currently assigned 10 percent rating for left knee arthritis contemplates any additional functional impairment that the Veteran may experience. See DeLuca, supra. The Board notes further that the objective evidence of record does not contain evidence of any ankylosis of the left knee (rated under Diagnostic Code 5256), or nonunion or malunion of the left tibia and fibula (rated under Diagnostic Code 5262). Consideration under these codes is not therefore warranted. A separate 10 percent rating for left knee subluxation has been in effect pursuant to Diagnostic Code 5257 since April 13, 2011, due to evidence of lateral tracking of the left leg shown during the April 2011 VA examination. To warrant a higher separate rating of 20 percent under Diagnostic Code 5257, there must be evidence of moderate recurrent subluxation or lateral instability which has not been shown. The criteria for assignment of a higher separate rating under Diagnostic Code 5258 since April 13, 2011, are also not met as there are no findings of dislocated cartilage in the left knee with frequent episodes of locking and effusion. Prior to April 13, 2011, there was no evidence of any instability of the left knee. The Veteran's anterior and posterior cruciates in the left knee were intact during the May 2004 VA examination, and the January 2010 VA examiner affirmatively stated that instability of the left knee was not shown. A separate rating for instability of the left knee under Diagnostic Code 5257 is therefore not warranted prior to April 13, 2011. All diagnostic codes, whether they have been cited by the Board or not, have been considered by the undersigned in this case and do not provide for higher ratings. The Veteran is competent to report his observable left knee symptoms, such as pain. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, without the appropriate medical training and expertise, he is not competent to provide an opinion on a medical matter, such as the nature and severity of his left knee disability. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). His lay statements must be considered along with the objective medical evidence and findings and in relation to the applicable rating criteria. The Veteran's reports of symptoms have been considered, however the Board attaches greater probative weight to the clinical findings of skilled, unbiased professionals. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). As the preponderance of the evidence is against the claim for a higher initial rating, the "benefit-of- the-doubt" rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 50 (1990). Left Ankle The RO assigned an initial noncompensable rating for the Veteran's degenerative arthritis of the left ankle, effective May 30, 2003, pursuant to under 38 C.F.R. § 4.71a , Diagnostic Codes 5003-5271. Diagnostic Code 5271 provides ratings based on limitation of motion of the ankle. Moderate limitation of motion of the ankle is rated as 10 percent disabling; and marked limitation of motion of the ankle is rated as 20 percent disabling. 38 C.F.R. § 4.71a. Normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees, and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II (2013). Diagnostic Code 5270 provides ratings for ankylosis of the ankle. Ankylosis of the ankle in plantar flexion less than 30 degrees is to be rated 20 percent disabling; ankylosis of the ankle in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion between 0 degrees and 10 degrees, is to be rated 30 percent disabling; ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity, is to be rated 40 percent disabling. 38 C.F.R. § 4.71a. During the January 2010 VA examination, edema of the left ankle was noted. Dorsiflexion of the left ankle was to 20 degrees, and left plantar flexion was to 45 degrees. There was no objective evidence of pain on range of motion and upon repetitive motion. No additional limitations were noted after three repetitions of range of motion. There was no evidence of ankylosis of the left ankle joint. X-rays of the left ankle taken in conjunction with the examination showed mild anterior tibiotalar degenerative arthrosis and an irregularity at the distal insertion of the Achilles' tendon. The Veteran's ankle disability mildly affected his driving; moderately affected his traveling; severely affected his shopping and recreation; and prevented him from engaging in sports. The Board finds that an initial 10 percent rating, but no higher, is warranted for the Veteran's service-connected left ankle disability. Although there was no objective evidence of pain on motion during the January 2010 VA examination, the examiner indicated that the Veteran's left ankle mildly to severely affected his usual daily activities. The examiner also noted that the Veteran's left ankle disability would have an impact on occupational activities in terms of decreased mobility, lack of stamina, weakness or fatigue, and pain. As his left ankle is painful, the Board finds that, pursuant to 38 C.F.R. § 4.59 and Burton, supra, a minimum compensable rating, ten percent, is warranted. A rating higher than 10 percent, however, is not warranted for the left ankle. The Veteran has exhibited normal range of left ankle motion on examinations. As there is no evidence of marked limitation of motion of the left ankle, Diagnostic Code 5271 does not provide for a rating higher than 10 percent. In this decision, the Board considered and compensated the Veteran for the pain in his left ankle. He has normal range of left ankle motion and there is no evidence of any limitations upon repetitive range of motion. Overall, the Board finds that the functional loss present in his left ankle is adequately accounted for in the 10 percent rating assigned herein. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 206-207. The Board considered other appropriate diagnostic codes for application. However, absent ankylosis of the left ankle, a higher rating is not warranted under Diagnostic Code 5270. There is also no evidence of ankylosis of the subastragalar or tarsal joint, or malunion of the os calcis or astragalus, or an astragalectomy at any time during the pendency of the appeal, thus, Diagnostic Codes 5272, 5273 and 5274 do not apply. 38 C.F.R. § 4.71a. In sum, the Board concludes that an initial rating of 10 percent, but no higher, is warranted for the Veteran's service-connected left ankle disability for the entire appeal period. No staged ratings are warranted. Extraschedular Consideration The rating schedule represents as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. See 38 C.F.R. § 3.321(a), (b) (2013). In exceptional cases an extra-schedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of this VA regulation, for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of his disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Veteran's service-connected bilateral knee disability is manifested by signs and symptoms such as pain, and limitations that affect some of his activities of daily living. These signs and symptoms, and their resulting impairment, are contemplated by the rating schedule. The diagnostic codes in the rating schedule corresponding to disabilities of the knee and leg provide disability ratings on the basis of limitation of motion. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 2560, 5261 (providing ratings on the basis of ankylosis and limited flexion and extension). The Veteran's left ankle disability is also manifested by pain, a symptom contemplated in the applicable rating criteria. For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss. The schedular rating criteria reasonably describe the Veteran's disability pictures given the variety of ways in which the rating schedule contemplates functional loss for musculoskeletal disabilities. There is nothing exceptional or unusual about the Veteran's right knee, left knee, or left ankle disabilities because the rating criteria reasonably describe his disability levels and symptomatology. Thun, 22 Vet. App. at 115. Referral of these claims to the Under Secretary for Benefits or to the Director of Compensation and Pension (C&P) Service for extra-schedular consideration is not warranted. Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). ORDER Prior to January 23, 2010, entitlement to an initial rating higher than 30 percent for right knee disability, status-post knee replacement, is denied. From January 23, 2010, forward, entitlement to a rating of 60 percent, but no higher, is granted for right knee disability, status-post total knee replacement, subject to the laws and regulations governing VA monetary benefits. Entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the left knee is denied. Entitlement to an initial rating of 10 percent, but no higher, is granted for left ankle arthritis, subject to the laws and regulations governing VA monetary benefits. REMAND The Veteran was diagnosed with prostate cancer in 2006. In support of his claim, he submitted an article from Johns Hopkins Medicine titled "Inflammation, STDs, and Prostate Cancer?" which suggests that chronic inflammation may be an important instigator of prostate cancer and that one source of chronic inflammation in prostate is sexually transmitted infections. The Veteran's STRs indicate that he was diagnosed with gonorrhea during service. In light of a current diagnosis of prostate cancer, the in-service sexually transmitted disease, and the article submitted by the Veteran, a VA examination is necessary to determine the etiology of the Veteran's prostate cancer. In the August 2011 remand, the Board requested that the Veteran be afforded a VA compensation examination to determine whether any left foot disability is related to his service or his service-connected right knee, left knee, or left ankle disabilities. In January 2012, a VA examiner addressed whether the Veteran's left foot disability is etiologically related to his service-connected right knee disability, but did not address, as requested, whether the Veteran's left foot disability is etiologically related to his service-connected left knee and left ankle disabilities. Additionally, the Board observes that while this January 2012 "DBQ" opinion is provided, a VA examination of the left foot was not conducted, despite the Board's request. Where the remand orders of the Board were not complied with, the Board itself errs in failing to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). This obligation is mandatory, not discretionary. Therefore, a VA foot examination and medical opinions are necessary. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. Contact the Veteran and ask that he identify any outstanding VA and non-VA records pertaining to his prostate cancer and left foot disability that are not already of record. Take appropriate measures to request copies of any outstanding records of pertinent VA or private medical treatment and associate them with the claims file. 2. Then, schedule the Veteran for an examination by an appropriate examiner to determine the current nature and etiology of his prostate cancer. The claims file and a copy of this remand must be made available to the examiner, who must acknowledge receipt and review of these materials in any report generated. All indicated tests and studies must be performed. The examiner must respond to the following: a). Indicate any prostate cancer residuals are currently shown; b). Determine whether the Veteran's prostate cancer began in active service or is otherwise related to any incident of service. **In particular, the Board draws the physician's attention to the STRS showing a diagnosis of gonorrhea, the Johns Hopkins Medicine article suggesting a relationship between prostate cancer and STDs, and the Veteran's contentions. The examiner must identify and explain the medical bases of his or her opinion with reference to the claims file. The mere statement of the examiner's expertise and/or a bare summary conclusion is not alone sufficient under the law to accomplish VA's legal obligation to assist the Veteran. By law, the Board must evaluate multiple factors in determining whether medical opinions are sufficient to evaluate a claim. These factors include but are not limited to whether the examiner was aware of all facts of record; reviewed the claims folder; conducted any necessary clinical testing or interview with the Veteran, and whether the examiner explained the factual and medical bases for any opinion. 3. Schedule the Veteran for a VA examination to determine the current nature and etiology of his left foot disability, and to address whether his service -connected disabilities affect his employability. The claims file and a copy of this remand must be made available to the examiner, who must acknowledge receipt and review of these materials in any report generated. All indicated tests and studies must be performed. The examiner must respond to the following: a). State all diagnoses of the left foot current shown, to include arthritis of the first great toe; b). Determine whether the Veteran has a current left foot disability that began during active service or is related to any incident of service; c). Determine whether the Veteran's arthritis of the left great toe MTP joint with joint space narrowing and reactive sclerosis (see report of X-rays from March 2010 VA examination of the Veteran's left foot) began within one year of discharge from active service; d). Determine whether the Veteran has disability of the left foot (including arthritis of the left big toe) that is caused or AGGRAVATED (a chronic worsening of the underlying condition) as a result of his service-connected LEFT KNEE AND LEFT ANKLE disabilities. e). Determine whether the Veteran's service-connected disabilities, either alone or IN COMBINATION, render him unable to secure or follow a substantially gainful occupation, without regard to the Veteran's age or the impact of any non service-connected disabilities. **Reconcile the opinion with all evidence of record, to include the SSA records and an October 2003 private medical note indicating the Veteran is disabled due to severe arthritis. If the examiner opines that the Veteran's service-connected disabilities do not cumulatively render him unemployable, the examiner should suggest the type or types of employment in which the Veteran would be capable of engaging with his current service-connected disabilities, given his current skill set and educational background. The examiner must identify and explain the medical basis or bases for all conclusions, with identification of the pertinent evidence of record. All clinical findings must be reported in detail and correlated to a specific diagnosis. 4. Thereafter, adjudicate the derivative issue of entitlement to a TDIU and readjudicate the issues of entitlement to service connection for prostate cancer and a left foot disability. If any benefit sought remains denied, provide the Veteran and his attorney a SSOC and an appropriate period of time for response. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. The appellant 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). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs