Citation Nr: 1342898 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 08-15 813 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to a rating higher than 20 percent for left knee disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Dean, Associate Counsel INTRODUCTION The Veteran had active service in the Army from April to August 1981 and in the Navy from February 1982 to August 1985. This appeal to the Board of Veterans' Appeals (Board/BVA) is from February and April 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2010, the Board remanded the claims to the RO via the Appeals Management Center (AMC) for further development. The additional development included sending the Veteran the proper notification letter since he is claiming entitlement to service connection for PTSD based on a personal assault (see 38 C.F.R. § 3.304(f)(5), which, at the time, was codified instead at subpart (f)(4)), attempting to independently corroborate his stressor he believes caused this mental disorder - including, if warranted, by contacting the U. S. Joint Services Records and Research Center (JSRRC), obtaining an opinion from a VA medical examiner concerning the likelihood the Veteran's alleged personal assault stressor in service had occurred, and, if determined it had, a medical nexus opinion concerning the likelihood it had resulted in PTSD. As well, he was to be afforded an additional VA examination reassessing the severity of his left knee disability. Regarding the PTSD development, as the Board had explained, the question of whether a stressor occurred usually is a factual rather than medical determination, so one that a VA adjudicator normally makes instead of a VA medical examiner. But when the claim is predicated on personal assault, so including sexual assault (military sexual trauma (MST)), there is an exception to this general rule announced in Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996), allowing for after-the-fact medical nexus evidence to establish the occurrence of the alleged stressor, also its relationship to subsequent PTSD. See YR v. West, 11 Vet. App. 393, 399 (1998); Patton v. West, 12 Vet. App. 272, 279-280 (1999). But while the AMC provided the Veteran the appropriate letter for claimed personal assault, attempted to corroborate his claimed stressor, and provided him a VA examination for his left knee disability, it did not fully comply with the remand directives in terms of also obtaining an opinion from a VA examiner regarding the likelihood the Veteran's claimed personal-assault stressor in service had occurred. The Board finds this was not in compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998) (holding that a remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand, and that the Board itself commits error as a matter of law in failing to ensure this compliance). For this and additional reasons discussed below, the Board unfortunately must again remand this claim of entitlement to service connection for PTSD. The Board is, however, going ahead and deciding the remaining claim for a rating higher than 20 percent for the left knee disability. FINDINGS OF FACT The manifestations of the Veteran's left knee disability are hypermobile patella with patellafemoral arthritis, albeit with flexion just limited to 105 degrees (out of the normal 140 degrees) and extension limited to 4 degrees (out of the normal 0 degrees); he also does not have recurrent subluxation or lateral instability, anklyosis, dislocated semilunar cartilage, or impairment of the tibia and fibula. CONCLUSION OF LAW The criteria have not been met at any point during the pendency of this claim for a rating higher than 20 percent for this left knee disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.71a, Diagnostic Codes 5003, 5010, 5256-5262 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION In deciding this claim, the Board has reviewed all of the evidence in the claims file, both the physical claims file and electronic ("Virtual VA") portion of the file, and has an obligation to provide an adequate statement of reasons or bases supporting this decision. See 38 U.S.C.A. § 7104(d)(1) (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each and every piece of evidence, certainly not in exhaustive detail. See id. The analysis below therefore focuses only on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board addresses its reasons for rejecting evidence favorable to the claimant). The Board must assess the credibility and weight of all relevant evidence, so both the medical and lay evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. When the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must weigh against a claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). I. The Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), sets forth VA's duties to notify and assist a claimant in substantiating a claim for VA benefits. The VCAA was codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, and the implementing regulations were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative of any information and medical or lay evidence not of record that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In order to satisfy its duty to notify the claimant under the VCAA, the United States Court of Appeals for Veterans Claims (Court/CAVC) held that VA must 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. Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Ideally, VCAA notice should be provided prior to an initial decision on a claim by the RO as the Agency or Original Jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if notice was not provided prior to initially adjudicating a claim, or if provided and it was inadequate or incomplete, the issuance of a fully compliant VCAA notification followed by readjudication of the claim, including in a statement of the case (SOC) or supplemental SOC (SSOC), is sufficient to "cure" the timing defect in the provision of the notice because the intended purpose of the notice is still preserved, not frustrated, since the Veteran is still given meaningful opportunity to participate effectively in the adjudication of his claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006). In claims for increased ratings for disabilities that already have been determined service connected in years past, the Court has held that in order to satisfy the first notice element VA must notify the claimant that he needs to provide or request VA to obtain medical or lay evidence demonstrating a worsening or increase in severity of the disability at issue. Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 97-103 (2010) (Vasquez-Flores III); Vazquez-Flores v. Peake, 22 Vet. App. 37, 43 (2008) (Vasquez-Flores I), overruled in part sub. nom. Vasquez-Florez/Wilson v. Shinseki, 580 F.3d 1270, 1280-81 (Fed. Cir. 2009) (Vasquez-Flores II). Further, the claimant must be notified that a disability rating will be determined by applying relevant Disability Codes (DCs), which typically provide for a range in severity of a particular disability from 0 percent, i.e., noncompensable, to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment. Id. Finally, the notice must provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. Id. Except when VCAA notice as to how to substantiate a claim is not provided at all, it is the claimant's burden to show that he was prejudiced by any deficiency in the notice provided. See Vazquez-Flores, 24 Vet. App. at 106-107. And VA is not required to apprise him of alternative DCs or daily-life evidence, only instead provide what amounts to "generic" notice. Here, prior to the April 2007 rating decision at issue, a February 2007 letter satisfied all notice elements under the VCAA. It informed the Veteran of how VA generally evaluates service-connected disabilities, provided examples of the types of evidence he could submit in support of his claim, and notified him of his and VA's respective responsibilities in obtaining relevant records and other evidence on his behalf. Accordingly, the duty to notify has been satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores, 24 Vet. App. at 97-103; Quartuccio, 16 Vet. App. 183. VA's duty to assist under the VCAA includes helping the claimant obtain relevant records, including service treatment records (STRs) and other pertinent records, such as concerning evaluation he has received since service from VA and privately, as well as providing an examination or obtaining a medical opinion when necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Here, the Veteran's STRs and post-service VA and private medical records have been obtained and associated with the claims file for consideration. He has not identified any outstanding records that he wants VA to obtain or that he believes are relevant to his claim in terms of showing his entitlement to a greater level of compensation. Therefore, the duty to assist him in obtaining pertinent records has been satisfied. See 38 C.F.R. § 3.159(c). The duty to assist also, as mentioned, includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim. See 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. §§ 3.159(c)(4), 3.326(a), 3.327 (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the claimant's disability and such is relevant to the claim, a new VA examination must be conducted. See 38 C.F.R. §3.327(a); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). However, unless the claimant challenges the adequacy of the examination or opinion, the Board may assume the examination report and opinion are adequate and need not affirmatively establish the adequacy of the examination report or the competence of the examiner. Sickels v. Shinseki, 643 F.3d 1362, 1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-91 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged). Id. Indeed, even when the claimant challenges a VA examination or opinion, the Board may assume the competency of the VA medical examiner, including nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), he or she is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Cox v. Nicholson, 20 Vet. App. 563 (2007). Here, VA examinations of the left knee were performed in March 2007 and in November 2010. The examinations are adequate for rating purposes, as the examiners reviewed the claims file for the history of this disability, examined the Veteran personally, and described his disability in sufficient detail to enable the Board to make a fully informed decision regarding its severity in relation to the applicable rating criteria. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that an examination is adequate when it is based on consideration of the claimant's medical history and describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). There are no apparent inconsistencies or ambiguities in the examination reports, and the claimant has not specifically challenged their adequacy or thoroughness, or the competence of the examiners. See Sickels, 643 F.3d at 1365-66; Rizzo, 580 F.3d at 1290-91. The Veteran has not stated and there is no evidence indicating that there has been a material change in the severity of his left knee disability since he was last examined in November 2010. See 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the mere passage of time since an otherwise adequate VA examination was performed. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007); VAOPGCPREC 11-95 (April 7, 1995). Accordingly, VA's duty to assist with respect to obtaining a VA examination has been met. 38 C.F.R. § 3.159(c)(4); Barr, 21 Vet. App. at 312. In sum, VA's duties to notify and assist under the VCAA have been satisfied. The Veteran has had ample opportunity to participate effectively in the development of this claim. See Arneson v. Shinseki, 24 Vet. App. 379, 389 (2011) (citing Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that any error depriving a claimant of "a meaningful opportunity to participate effectively in the processing of his or her claim . . . must be considered prejudicial")). Any defect in the notice or assistance provided will not affect the outcome of this claim or compromise the "essential fairness of the adjudication," and no such defect has been shown. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). To the contrary, he has received all essential notice and assistance, has had a meaningful opportunity to participate effectively in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Thus, any error in the notice or assistance provided was harmless, again, meaning nonprejudicial. See Shinseki v. Sanders, 556 U.S. 396, 407, 410 (2009) (holding that the "rule of prejudicial error" requires a case-by-case determination as to whether the error in question was harmless, and that it is the burden of the claimant to show the error was harmless by at least providing an explanation as to how the error caused harm); see also 38 U.S.C.A. § 7261(b)(2) and 38 C.F.R. § 20.1102. Accordingly, the Board may proceed with appellate review of this claim. II. Legal Criteria Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2013). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. The evaluation of the same disability under various diagnoses is to be avoided, as this would contravene VA's anti-pyramiding regulation. See 38 C.F.R. § 4.14. However, this does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The provisions of 38 C.F.R. § 4.40 state that the disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. According to this regulation, it is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the Veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. The Court has held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See, in general, DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss due to pain is rated at the same level as functional loss where motion is impeded. See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). See also Burton v. Shinseki, 25 Vet. App. 1 (2011) (The provisions of § 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.). A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Moreover, although pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (emphasis added). In Mitchell, the Court held that the evaluation of painful motion as limited motion only applies when limitation of motion is noncompensable under the applicable diagnostic code. The Court further explained that, although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), when read together with DC 5003, it does not follow that the maximum rating is warranted under the applicable DC pertaining to range of motion simply because pain is present throughout the range of motion. See id. Rather, the pain "must actually affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance' [under] 38 C.F.R. § 4.40 in order to constitute functional loss" warranting a higher rating. See id. at 43. DC 5010 refers to arthritis, due to trauma (i.e., post-traumatic arthritis), substantiated by X-ray findings. This code provides that consequent disability should be rated as degenerative arthritis under DC 5003. Under DC 5003, degenerative arthritis (hypertrophic/osteoarthritis) in turn will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate DCs, a rating of 10 percent is warranted for each major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion but X-ray involvement of two or more major joints or minor joint groups, a 10 percent rating is assigned. A 20 percent rating is assigned where the above is present as well as occasional incapacitating exacerbations. DC 5003 indicates these 20 and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. In addition, these ratings will not be utilized in rating conditions listed under DCs 5013 to 5024, inclusive. The intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. VA's General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257, respectively, while cautioning that any such separate rating must be based on additional disabling symptomatology. VAOPGCPREC 23-97, 62 Fed. Reg. 63, 604 (July 1, 1997; revised July 24, 1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (August 14, 1998). Diagnostic Code 5257 provides ratings for "other" impairment of the knee that includes recurrent subluxation or lateral instability. Slight consequent disability is rated as 10-percent disabling; moderate as 20-percent disabling; and severe as 30-percent disabling. These descriptive terms of "slight," "moderate," and "severe are not specifically defined in this DC. Rather than applying a mechanical formula, the Board must evaluate all of the evidence so that its decisions are "equitable and just." 38 C.F.R. §§4.2, 4.6. VA's General Counsel also has held that separate ratings are permissible under DC 5260 (limitation of flexion of the leg) and DC 5261 (limitation of extension of the leg) for disability of the same joint. VAOPGCPREC 9-2004 (September 17, 2004). According to DC 5260, flexion of the leg limited to 60 degrees warrants a noncompensable (0 percent) disability rating; flexion of the leg limited to 45 degrees warrants a 10 percent disability rating; flexion of the leg limited to 30 degrees warrants a 20 percent disability; and flexion of the leg limited to 15 degrees warrants a 30 percent disability rating. According to DC 5261, extension of the leg limited to 5 degrees warrants a noncompensable (0 percent) disability rating; extension of the leg limited to 10 degrees warrants a 10 percent disability rating; extension of the leg limited to 15 degrees warrants a 20 percent disability rating; extension of the leg limited to 20 degrees warrants a 30 percent disability rating; extension of the leg limited to 30 degrees warrants a 40 percent disability rating; and extension of the leg limited to 45 degrees warrants a 50 disability rating. Other DCs relating to the knee are DC 5256 (ankylosis), DCs 5258 and 5259 (symptomatic dislocation and/or removal of semilunar cartilage), DC 5262 (impairment of tibia and fibula) and DC 5263 (genu recurvatum). As noted below, however, the Veteran is not shown to have the types of impairments necessary for application of these other codes. III. Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2013) and Schafrath, 1 Vet. App. 589, the Board has reviewed all of the evidence of record pertaining to the history of this service-connected left knee disability. The Board has found nothing in the historical record that would lead to the conclusion that the existing 20 percent rating is inadequate. A review of this record shows the Veteran received VA treatment for his left knee in August and September 2006, so just some 6 months prior to filing his increased-rating claim in February 2007. In claims for increased ratings, so such as the one before the Board, the present level of disability is the primary concern and past medical reports do not take precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in assessing the present level of disability, the relevant temporal focus is from one year immediately preceding the filing of the increased-rating claim, so, here, since February 2006, therefore inclusive of that VA treatment in August and September 2006. See 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). See also Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010) (explaining that the legislative history of 38 U.S.C.A. § 5110(b)(2) was to provide Veterans a one-year grace period for filing a claim following an increase in the severity of a service-connected disability). If there have been occasions since when the disability has been more severe than at others, the rating must reflect this, that is to say, the rating must be "staged" to compensate the Veteran for this variance. See Hart v. Mansfield, 21 Vet. App. 505 (2007). When seen for VA treatment in August 2006, an X-ray revealed moderate degenerative joint disease (i.e., arthritis) of the left knee. In September 2006, the Veteran presented with chronic pain in this knee that he said was progressively worsening. He stated that squatting, kneeling, and climbing that he did in his job as a plumber gave him considerable difficulty. A physical examination of his knee revealed a hypermobile patella, pain with patellofemoral compression, and tenderness under the medial patellar facet and the lateral facet. He had no joint line tenderness, effusion in the knee, or ligamentous instability. The diagnosis based on X-rays was patellofemoral arthritis. In January 2007 he had a social work consultation during which he reported that his left knee pain was becoming overwhelming; he consequently was looking into a career change. He later transitioned into a position as a respiratory therapist with VA. In March 2007 he was afforded a VA compensation examination for his left knee disability. He reported prior knee surgeries in 1986 and 1998, no history of trauma or neoplasm, no assistive aids needed for walking, and no constitutional symptoms of arthritis or incapacitating episodes of arthritis. He reported being able to stand up to one hour and walking more than 1/4 mile but less than one mile. On objective physical examination, the examiner noted the Veteran's gait was normal with no evidence of abnormal weight bearing. He had left knee active flexion to no less than 125 degrees with pain beginning at 120 degrees, and passive flexion to no less than 130 degrees with pain beginning at 120 degrees. There was no additional loss of motion on repetition. The examiner noted there was no loss of a bone or part of a bone, no recurrent dislocations, no inflammatory arthritis, and no joint ankylosis. In summary, the examiner noted there was effusion, tenderness, and painful movement in the Veteran's left knee, as well as crepitation. There was no grinding or instability. The Veteran had subpatellar tenderness, but no meniscus abnormality or other knee abnormality. The prior August 2006 X-rays, as well as even earlier November 2004 X-rays, were reviewed, and the examiner made a diagnosis of degenerative joint disease of the left knee with chondromalacia patella that had significant general occupational effects. The examiner noted that the Veteran had decreased mobility, problems with lifting and carrying, and pain, and he had missed three months of work over the past twelve months due to his left knee disability. That VA compensation examiner's findings were the reason the RO subsequently increased the rating for the Veteran's left knee disability under DC 5003 from 10 to 20 percent in the April 2007 decision at issue. In effect, although the Veteran's left knee flexion was limited to 120 degrees, which, according to DC 5260, would have warranted just a 0 percent (noncompensable) rating, the fact that he had arthritic pain and limitation of mobility were considered reason enough to increase the rating for his left knee disability from 10 to 20 percent. As already explained, in application of DC 5003, which refers the rater to DC 5260, the Court has held that "painful motion of a major joint... caused by degenerative arthritis, where the arthritis is established by X-ray, is deemed to be limited motion and entitled to a minimum 10 percent rating...." See again Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991) (indicating this results from reading 38 C.F.R. § 4.59 in combination with DC 5003). For the purpose of rating disability from arthritis, the knee is considered a major joint. See 38 C.F.R. § 4.45(f). With any form of arthritis, painful motion is an important factor of disability. See id. The intent of the Rating Schedule is to recognize painful motion with joint or particular pathology as productive of disability. As also already explained, joints that are actually painful, unstable, or malaligned should be entitled to at least the minimum compensable rating for the joint, therefore special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. 38 C.F.R. § 4.59. But also to reiterate, in the case of Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011), the Court clarified its holding in Lichtenfels, explaining that the evaluation of painful motion as limited motion only applies to the evaluation of arthritis under DC 5003, as mandated by the express language in that provision, and only when limitation of motion is noncompensable under the applicable DC (here, DC 5260). The Court further explained that, although painful motion is entitled to a minimum 10 percent rating under Lichtenfels and DC 5003, it does not follow that the maximum rating is warranted under the applicable DC pertaining to range of motion simply because pain is present throughout the range of motion. After continuing to maintain that his left knee disability had worsened, even since that March 2007 VA compensation examination, the Veteran was provided another VA compensation examination in November 2010 to reassess the severity of this service-connected disability. During that additional evaluation he reported that his left knee was still getting progressively worse, which he treated with activity limitation with a fair response. He also said he occasionally wore a knee brace. He reported giving way, pain, stiffness, decreased speed of joint motion, popping and grinding, and severe flare-ups of joint disease occurring every one to two months and lasting three to seven days. He reported being unable to stand for more than a few minutes, and that he could walk more than 1/4 mile but less than 1 mile. On physical examination, the examiner observed the Veteran had an antalgic gait, but no other evidence of abnormal weight bearing. There was also no evidence of loss of a bone or part of a bone or inflammatory arthritis. The examiner did notice crepitus, tenderness, abnormal motion, and guarding of motion, as well as grinding and patellar abnormality in the form of abnormal tracking and subpatellar tenderness. The examiner did not make a finding of instability of the left knee. He did note the Veteran had flexion from 4 to 115 degrees with pain beginning at 105 degrees, and extension limited to 4 degrees. The examiner noted there was objective evidence of pain with active motion, but found no evidence of additional limitation with repetitive motion. The examiner also noted there was no ankylosis; passive range of motion was unchanged from active range of motion; and no pain, fatigue, weakness, or incoordination was noted. The prior X-rays were again reviewed, and the examiner made a diagnosis of left knee patellofemoral arthritis with a hypermobile left patella. The examiner noted the Veteran reported missing no time during the last twelve months in his job as a respiratory therapist, but his left knee disability still had significant effects in his occupation due to decreased mobility and pain. He also had some difficulties performing his usual daily activities, including exercising, household chores, and some recreational activities. For the reasons and bases already discussed, as summarized in Mitchell, even the results of that additional VA compensation examination do not provide the means to warrant again increasing the rating for the left knee disability. The existing 20 percent rating, absent indication of greater functional loss on account of the pain, is the highest possible rating that may be assigned in the circumstances presented. This 20 percent rating under DCs 5003-5260 concedes the Veteran has limited or painful motion of a major joint, that being his left knee. He already has the highest rating he can be given under DCs 5010 and 5003 for the arthritis. Moreover, a rating exceeding 20 percent also is not warranted under DC 5260, on referral, without evidence of limitation of flexion to 15 degrees or less, which also has not been indicated, again, even when considering the extent of his pain. He has had, at worst, extension of his left knee limited to 4 degrees, so not to the level required for a compensable or separate rating under DC 5261 or VAOGCPREC 9-2004, respectively. See also 38 C.F.R. § 4.71, Plate II, indicating normal range of knee motion is from 0 degrees of extension to 140 degrees of flexion. As to rating his left knee disability under another rating code, the assignment of a particular DC is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One DC may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a DC by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In order to warrant a higher rating under a different DC or a separate rating, as examples there must be evidence of recurrent subluxation or lateral instability of the left knee causing "slight" or "moderate" or "severe" impairment (DC 5257), dislocated semilunar cartilage that results in frequent episodes of "locking," pain, and effusion into the joint (DC 5258), or malunion of the tibia and fibula with moderate knee or ankle disability (DC 5262). But there is no suggestion the Veteran has the type of impairment contemplated by DCs 5258 and 5262, so they are inapplicable. As concerning DC 5257, the Board sees the Veteran was formerly rated at 10 percent under this code, but in the April 2007 rating decision the RO noted he had no lateral instability, so his knee condition would only be evaluated under the code (and referral codes) for degenerative joint disease, i.e., arthritis and the consequent limitation of motion, so under DCs 5003-5010 and 5260 and 5261. The Veteran contends that he does, in fact, have left knee instability, and during a March 2010 videoconference hearing before the undersigned Veterans Law Judge he reported that he had dislocated his knee several times in the past, for which he had sought medical treatment. But during the March 2007 VA examination, the examiner noted there was no instability of the left knee. During the more recent November 2010 VA examination, the Veteran again reported that his knee often gave way (so was unstable) and that he occasionally wore a knee brace to try and compensate for this failing. However, again, after objective physical examination of this knee, although his diagnosis was left knee patellofemoral arthritis and hypermobile left patella (i.e., kneecap), the VA examiner also explicitly indicated that he did not observe any instability of the joint. And, during both VA compensation examinations, the Veteran denied a history of recurrent patellar subluxation/dislocation. Therefore, the Board finds that there simply is not enough evidence to show he experiences recurrent subluxation or lateral instability of this knee to in turn warrant assigning a separate rating under DC 5257. See again VAOGCPRECs 23-97 and 9-98. There equally is no objective clinical evidence of any left knee ankylosis to warrant consideration of a higher rating under DC 5256. Ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996), citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999). See, too, Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. While the Veteran has slight, noncompensable limitation of motion of his left knee, including on account of his pain, it cannot be said that his motion is so restricted as to amount to ankylosis, which essentially contemplates absolutely no motion at all. There also is no indication he has met the requirements for a rating higher than 20 percent at any time since one year prior to filing this increased-rating claim, so the Board cannot "stage" his rating either. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, the preponderance of the evidence is against his claim, so it must be denied. IV. Extra-Schedular Consideration The Board also has considered whether the Veteran's claim should be referred for extra-schedular consideration. See 38 C.F.R. § 3.321(b)(1) (2013). The threshold factor for extra-schedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the disability is inadequate. 38 C.F.R. § 3.321(b)(1). See also Fisher v. Principi, 4 Vet. App. 57, 60 (1993); VA Adjudication Procedural Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). According to the VA regulation, an extra-schedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). See also Fanning v. Brown, 4 Vet. App. 225, 229 (1993). The question of an extra-schedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). And although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). As held in Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extra-schedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. Because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual Veteran's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability. Thun, 22 Vet. App. at 114. Here, though, referral for extra-schedular consideration is unwarranted. The Veteran's left knee disability is manifested by symptoms and functional impairment expressly addressed by the schedular rating criteria, including arthritis and consequent pain and its effect on his range of motion. He does not have symptoms associated with his left knee disability that have been left uncompensated or unaccounted for in the assignment of his schedular rating. See Thun, 22 Vet. App. at 115. With regards to his functional impairment, including reported difficulties with prolonged standing and walking, these limitations are expected concomitants of a knee disability and thus fall within the province of the schedular criteria. Indeed, DeLuca's express reference to 38 C.F.R. §§ 4.40, 4.45 and 4.59 accepts as much. As noted in Thun, the rating criteria are averages and need not account for each individual circumstance in order to be adequate for evaluation purposes. Rather, the disability must be "exceptional" or "unusual." The Veteran has not described any functional impairment beyond what would reasonably be contemplated by the rating criteria. But even going one step further, there also is no evidence that he has missed time from work recently or been hospitalized for his left knee disability, much less frequently. So even if he managed to satisfy the first tier of the Thun test, he does not satisfy the second, so the third becomes moot. See 38 C.F.R. § 3.321(b)(1). Accordingly, a comparison of his left knee disability and the rating criteria does not show "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards." Id. Consequently, the available schedular evaluation is adequate to rate this disability. In the absence of this threshold finding, there is no need to consider the second step of the inquiry, namely, whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization, much less, as mentioned, the third and final step of the inquiry. See Thun, 22 Vet. App, at 118-19 (holding that the Board's finding that the rating criteria were adequate to evaluate the claimant's disability was a sufficient basis for denying extra-schedular consideration without regard to whether there was a marked interference with employment). Nevertheless, as explained, such additional factors have not been shown either. Therefore referral for extra-schedular consideration is not warranted. See id. ORDER The claim of entitlement to a rating higher than 20 percent for the left knee disability is denied. REMAND The Board sincerely regrets the additional delay that inevitably will result from this additional remand of the claim for service connection for PTSD, but it is necessary to ensure there is a complete record and so the Veteran is afforded every possible consideration. As already alluded to, a remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. See Stegall, 11 Vet. App. at 271. In Stegall, the Court held that "where . . . the remand orders of the Board . . . are not complied with, the Board itself errs in failing to insure compliance." Id. There are times when substantial, even if not total or exact, compliance with a remand directive is sufficient. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (another remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Such is not the case here, however. The Board's April 2010 remand directed the AMC to obtain an opinion from a VA medical examiner as to the likelihood the Veteran's asserted in-service personal assault stressor had occurred, prior to making a determination as to whether the asserted stressor was objectively confirmed. Instead, in October 2010 there merely was a formal finding of lack of information required to corroborate the Veteran's claimed stressor; however, there is no suggestion a VA medical examiner's opinion was ever obtained concerning this. And, as already explained, there is an exception to the general rule of Moreau when the claim for PTSD is predicated on personal or sexual assault (MST), allowing for after-the-fact medical nexus evidence to both establish the occurrence of the claimed stressor and to indicate its consequent relationship with a subsequent diagnosis of PTSD. See again YR and Patton. In light of this failing, this claim must be remanded again to ensure compliance with the original remand directives. If a VA medical examiner determines it is likely or as likely as not that the Veteran's asserted personal assault service in service occurred, then the Veteran must be afforded a VA psychiatric examination to determine the likelihood he has PTSD as a result of the assault. Accordingly, the claim is REMANDED for the following additional development and consideration: 1. Obtain all outstanding, pertinent, medical treatment records, including those from the Bay Pines VA Health Care System since January 2008. All additional treatment records the Veteran identifies should be obtained, as well, and associated with the claims file for consideration. The amount of effort needed to be expended depends on who has custody of the records. If they are not in the custody of a Federal department or agency, then 38 C.F.R. § 3.159(c)(1) controls, whereas subpart (c)(2) controls if they are. If these efforts yield negative results, a notation to that effect must be made in the file and the Veteran appropriately notified. 38 C.F.R. § 3.159(e)(1). 2. Upon receipt of all additional records, obtain an opinion from a VA compensation examiner (a psychiatrist or other mental health care provider such as a psychologist) as to the likelihood (very likely, as likely as not, or unlikely) the Veteran's asserted in-service personal assault stressor occurred. The person making this important after-the-fact determination should specifically note and comment on the Veteran's in-service knee injury (a hematoma) that he states occurred during the alleged personal assault. 3. If the asserted stressor is objectively confirmed, have this VA compensation examiner also comment on the likelihood (very likely, as likely as not, or unlikely) the Veteran has consequent PTSD. In making this critical determination, only a verified in-service stressor is to be considered. *To facilitate making these important determinations, have the designated examiner review the claims file for the Veteran's pertinent medical and other history. The examiner should address all credibility questions raised by the evidence and must discuss the rationale of the opinion, whether favorable or unfavorable. 4. Then readjudicate this claim in light of this and all other additional evidence. If this claim continues to be denied, send the Veteran another supplemental statement of the case (SSOC) and give him an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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. 2013). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs