Citation Nr: 1343358 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 10-22 080 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to a rating in excess of 30 percent for chondromalacia of the left knee. 2. Entitlement to a rating in excess of 30 percent for postoperative left fifth osteotomy with bilateral hallux valgus, hammertoes, and callosities. 3. Entitlement to a rating in excess of 10 percent for degenerative arthritis of the right knee. 4. Entitlement to service connection for recurrent episodes of gastrointestinal bleeding, claimed as secondary to medication taken for service-connected knee disabilities. 5. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD A.M.Clark, Counsel INTRODUCTION The Veteran served on active duty from March 1979 to August 1992. These matters come before the Board of Veterans' Appeals (Board) from February 2009 (left knee, foot, recurrent episodes of gastrointestinal bleeding, and TDIU) and February 2011 (right knee) rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Veteran testified before a Decision Review Officer (DRO) in November 2009 and before the undersigned Veterans Law Judge in July 2012. Transcripts of the hearings are of record. At her July 2012 BVA hearing, the Veteran submitted additional evidence with waiver of RO consideration. The issues of entitlement to a rating in excess of 30 percent for chondromalacia of the left knee, a rating in excess of 10 percent for degenerative arthritis of the right knee, and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if additional action is required on her part. FINDINGS OF FACT 1. The Veteran's postoperative left fifth osteotomy with bilateral hallux valgus, hammertoes, and callosities has not resulted in marked contraction of the plantar fascia with dropped forefoot, all toes hammertoes, very painful callosities, or marked varus deformity; neither foot has resulted in moderately severe disability. 2. The medical evidence of record stands in equipoise as to whether the Veteran's recurrent episodes of gastrointestinal bleeding are attributed to medications taken for her service-connected knee disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for postoperative left fifth osteotomy with bilateral hallux valgus, hammertoes, and callosities have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.71a Diagnostic Code (DC) 5278 (2013). 2. Resolving reasonable doubt in the Veteran's favor, recurrent episodes of gastrointestinal bleeding are proximately due to or the result of medications taken for service-connected bilateral knee disabilities. 38 U.S.C.A. §§ 1110, 1111, 1131, 1132, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Assist and Notify Before addressing the merits of the Veteran's increased rating claim, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant and her representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor her representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. With respect to the Veteran's increased rating claim, the VCAA duty to notify was satisfied subsequent to the initial RO decision by way of a letter sent to the Veteran in March 2009. The letter informed her of what evidence was required to substantiate the claim and of her and VA's respective duties for obtaining evidence. Moreover, in the same March 2009 letter, the RO provided the Veteran with Dingess notice of what type of information and evidence was needed to establish a disability rating. The Board acknowledges that the Veteran was not provided with specific Dingess requirements as to effective dates, nevertheless, as her claim is being denied, information regarding an effective date is not pertinent. Furthermore, the increased claim was readjudicated, and a statement of the case was issued in May 2010. Consequently, the Board finds that the duty to notify has been satisfied as to this claim. Next, VA has a duty to assist the veteran in the development of the claim. This duty includes assisting her in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO obtained the Veteran's service treatment records and VA treatment records. The Veteran also submitted private treatment records and personal statements and testimony in support of her appeal. The Board has additionally reviewed the Veteran's Virtual VA (VVA) claims file and Veterans Benefits Management System (VBMS) file. Discussion of the Veteran's November 2009 DRO and July 2012 Veterans Law Judge (VLJ) hearings are also necessary. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. They were met here. Her increased rating claim was identified as an issue at the hearings. Sources of evidence relevant in this regard were identified during this process. No additional outstanding records were identified. The Board finds that, consistent with Bryant, both the DRO and VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Next, VA examinations and opinions were obtained in October 2008, December 2009 and March 2012 with respect to her claim. The examiners personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and together provide the information necessary to rate her foot disabilities under the applicable rating criteria. The Veteran's most recent foot examination is now over a year old. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. Here, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's postoperative left fifth osteotomy with bilateral hallux valgus, hammertoes, and callosities since the March 2012 VA examination. The Veteran does not contend otherwise. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion concerning the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2013). The Board concludes that all the available records and medical evidence have been obtained in order to make an adequate determination as to this claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). With respect to the Veteran's claim for service connection for recurrent episodes of gastrointestinal bleeding, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2013). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). However, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2013). The Board acknowledges that in evaluating musculoskeletal disabilities, consideration must be given to additional functional limitation due to factors such as pain, weakness, fatigability, and incoordination. See 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The United States Court of Appeals for Veterans Claims (Court) has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). VA regulations require that a finding of dysfunction due to pain must be supported by, among other things, adequate pathology. 38 C.F.R. § 4.40 ("functional loss due to pain is to be rated at the same level as the functional loss when flexion is impeded"); see Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). As is the case here, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, the Veteran has been diagnosed with postoperative left fifth osteotomy with bilateral hallux valgus, hammertoes, and callosities. This service-connected disability is currently rated as 30 percent disabling under 38 C.F.R. § 4.71a, DC 5278, which evaluates impairment from acquired claw foot (pes cavus). Pursuant to DC 5278, a 30 percent rating is warranted for bilateral claw foot with all toes tending to dorsiflexion, limitation of dorsiflexion at ankle to right angle, shortened plantar fascia, and marked tenderness under metatarsal heads. 38 C.F.R. § 4.71a, DC 5278 (2013). A 30 percent rating is also warranted for unilateral claw foot with marked contraction of plantar fascia with dropped forefoot, all toes hammertoes, very painful callosities, marked varus deformity. Id. A 50 percent rating is warranted for bilateral claw foot with marked contraction of plantar fascia with dropped forefoot, all toes hammertoes, very painful callosities, marked varus deformity. Id. Impairment from other foot injuries is evaluated under 38 C.F.R. § 4.71a, DC 5284. Pursuant to DC 5284, a 10 percent rating is warranted for moderate disability. 38 C.F.R. § 4.71a, DC 5284 (2013). A 20 percent rating is warranted for moderately severe disability. Id. A 30 percent rating is warranted for severe disability. Id. Actual loss of use of the foot warrants a 40 percent rating. Id. Based on the evidence of record, the Board concludes that a rating in excess of 30 percent is not warranted at any time during this appeal period. The pertinent evidence of record fails to show that the Veteran's bilateral foot disability meets the rating criteria for a higher rating under the applicable diagnostic codes, to include consideration of whether a higher rating is warranted by evaluating each foot separately and then combining the ratings. The evidence fails to show that the Veteran's postoperative left fifth osteotomy with bilateral hallux valgus, hammertoes, and callosities symptoms include marked contraction of plantar fascia with dropped forefoot, all toes hammertoes, very painful callosities and marked varus deformity such that a higher rating of 50 percent under DC 5278 is warranted. Throughout this appeal, the Veteran's pertinent treatment records reflect her continuous complaints of pain. At an October 2008 VA examination, the Veteran reported painful corns and calluses. Physical examination revealed a well-healed scar over the dorsal lateral aspect of the left fifth metatarsal phalangeal joint. The scar was not tender to palpation. A corn lateral to the fifth metatarsal head left as well as on the plantar of the left fifth metatarsal head was observed. The VA examiner noted a corn over the second, fourth, and fifth proximal phalangeal joints of the left foot; additionally, a small pinched callus on the left great toe was noted. On the right foot the VA examiner observed a corn on the fifth proximal interphalangeal joint dorsally, plantar first metatarsal head and plantar right great toe interphalangeal joint. Palpation of these areas did not elicit pain. On the right foot the VA examiner noted that the third toe was slightly contracted and the rest were straight. On the left foot it was noted that there was contracture of the second through fifth toes with a small bunion and hallux valgus, bilaterally low arches without any tenderness on examination to palpation. Weightbearing was normal, as was gait. The results of this examination clearly show that the Veteran does not meet the criteria for a 50 percent rating under DC 5278. Symptoms such as marked contraction of plantar fascia with dropped forefoot, all toes hammertoes, very painful callosities and marked varus deformity were not shown. As such, the criteria for a 50 percent rating under DC 5278 have not been shown at this examination. At a December 2009 VA examination the Veteran reported that her foot symptoms were about the same as they were in October 2008. She reported some soreness in her calluses, particularly the one over the scar, and that she trims that with a razor blade. She reported some throbbing in her foot and that she cannot do much walking. She additionally reported painful corns and calluses. Physical examination revealed a well healed scar over the dorsal aspect of the left fifth metatarsophalangeal joint. The scar was not tender, but a 1 cm corn on top of the scar was noted. A 1.2 cm corn over the plantar surface of the left fifth metatarsal head, and an 8 mm corn over the second, fourth and fifth proximal phalangeal joints of the left foot were also observed. In addition it was noted that there was a 1.5 by 1.2 cm callus on the underside of the foot just medial to the left great toe. On the right it was noted that she had a corn on the fifth proximal interphalagneal joint on the dorsal surface and also on the plantar first metatarsal head and plantar right great toe interphalangeal joint. It was noted that they had not been trimmed lately and were not tender to palpation. The December 2009 VA examiner indicated that the Veteran's arches were low normal bilaterally. It was noted that there was a small bunion on the right and the third toe on the right was slightly contracted but the others appeared relatively straight. On the left foot slight contracture of the second through the fifth toes with a small bunion and hallux valgus deformity was noted bilaterally. Tenderness to palpation over the feet or pain on manipulation was not detected. The VA examiner indicated that the bunions themselves on the right and left were slightly tender, but tenderness to palpation over the foot or the plantar surface of the foot was not detected. Weightbearing appeared normal. The Veteran was diagnosed with status postop left osteotomy with bilateral hallux valgus and callosities. A slight hammertoe deformity of the second toe on the left was also diagnosed. The VA examiner additionally commented that there was no painful motion, edema, weakness, or instability of the feet. It was also noted that Achilles tendons were in proper alignment and there was no pain on manipulation of the feet. Clearly, the results of this examination also fail to show that the Veteran meets the criteria for a rating in excess of 30 percent. The physical findings shown on this examination do not indicate symptoms such as marked contraction of plantar fascia with dropped forefoot, all toes hammertoes, very painful callosities and marked varus deformity. Therefore, a higher 50 percent rating under DC 5278 is not warranted. The Veteran underwent an additional examination in March 2012. The Veteran was diagnosed with hammertoes and hallux valgus. She reported that her feet continue to collect callouses especially on the left foot and give her pain on long standing or walking long distances due to her arch degenerative joint disease. Physical examination revealed no Morton's neuroma. Hammertoe on the second toe on the left foot was observed. Hallux valgus was observed with mild or moderate symptoms. The VA examiner indicated there was no hallux rigidus. Mild pes cavus with only the left second hammertoe were observed. It was noted that there was no malunion or nonunion of the tarsal or metatarsal bones; other foot injuries were also not observed. The VA examiner indicated that there was no evidence of bilateral weak foot. While a scar was noted, the VA examiner indicated it does not exceed 6 square inches. Also while pes planus was noted, there was no plantar fascial or ligament tenderness. Once again, the results of this examination also fail to show that the Veteran meets the criteria for a rating in excess of 30 percent. The physical findings shown on this examination do not indicate symptoms such as marked contraction of plantar fascia with dropped forefoot, all toes hammertoes, very painful callosities and marked varus deformity. Therefore, a higher 50 percent rating under DC 5278 is not warranted. As all examinations as well as the pertinent treatment records reviewed in the Veteran's claims file, VBMS and the VVA fail to show that a rating in excess of 30 percent under DC 5278 is warranted, the Board will look to other diagnostic codes to determine whether a higher rating can be granted. Specifically, the Board will consider whether an increased rating for other foot disabilities under DC 5284 is warranted. The pertinent medical findings shown on appeal do not support a rating in excess of 30 percent under DC 5284. As noted above, the only higher rating pursuant to that diagnostic code is a 40 percent rating for actual loss of use of the foot, which has not been shown at any time during this appeal period. DC 5284 provides for a 30 percent rating for severe disability. In this case, the pertinent medical evidence shown in the treatment records and on examinations fails to show that the symptomatology associated with each foot equates to severe disability. Although 'severe' is not defined in the rating criteria, a review of what warrants an increased rating of 30 percent for unilateral foot disabilities under other diagnostic codes is particularly instructive. For a 30 percent rating for unilateral flatfoot, the disability must be pronounced with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achilles on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, DCs 5276, 5278. The pertinent medical findings shown during this appeal fail to show that the Veteran has such symptoms. As already noted above, a 30 percent rating for unilateral pes cavus requires marked contraction of plantar fascia with dropped forefoot, all toes hammertoes, very painful callosities, marked varus deformity. The Board has already discussed that the Veteran does not meet these criteria. Therefore, the evidence fails to show that the symptoms associated with each foot meet the criteria for a 30 percent rating for severe disability under DC 5284. In other words, although 'severe' is not defined, as the Veteran's postoperative left fifth osteotomy with bilateral hallux valgus, hammertoes, and callosities has not caused symptoms that would warrant a higher rating under diagnostic codes that list symptoms indicative of 30 percent ratings for unilateral foot disabilities, the Board concludes that a rating of 30 percent rating for each foot is not warranted. The evidence also does not show that separate ratings of 20 percent, which would combine to 40 percent, see 38 C.F.R. § 4.25 (2013), are warranted. A rating of 20 percent under DC 5284 contemplates moderately severe disability. 'Moderately severe' is also not defined in the rating criteria. However, a review of what warrants a rating of 20 percent for unilateral foot disabilities under other diagnostic codes is particularly instructive. For a 20 percent rating for unilateral flatfoot, the disability must be severe with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use and characteristic callosities. A 20 percent rating for unilateral acquired claw foot requires that all toes tend to dorsiflexion, limitation of dorsiflexion at ankle to right angle, shortened plantar fascia and marked tenderness under metatarsal heads. 38 C.F.R. § 4.71a, DCs 5276, 5278. The pertinent medical findings shown throughout the treatment records as well as at VA examinations discussed above indicates that the Veteran does not have symptoms such as that contemplated for a 20 percent rating for unilateral foot disabilities under DCs 5276 and 5278. In other words, although 'moderately severe' is not defined, as the Veteran's postoperative left fifth osteotomy with bilateral hallux valgus, hammertoes, and callosities has not caused symptoms that would warrant a higher rating under diagnostic codes that list symptoms indicative of 20 percent ratings for unilateral foot disabilities, the Board concludes that separate ratings of 20 percent for each foot are not warranted. The Board acknowledges that the March 2012 VA examiner opined that the Veteran's foot disability impacts the Veteran's ability to work and she should not do work which requires walking or long standing on her feet but could do sedentary work. However, the examiner did not indicate that each foot had such impairment; rather, the examiner's opinion seems to indicate that the combined symptoms from both feet together caused such impairment. In any event, the Board reiterates that the symptoms indicative of 20 percent ratings for unilateral foot disabilities were not shown. Therefore, a rating in excess of 30 percent under DC 5284 by combining separate 20 percent ratings for each foot is not warranted. As for other diagnostic codes used to evaluate foot disabilities, the evidence reflects that the Veteran has been diagnosed with pes planus. Although, as she is not service-connected for this disorder, a rating under DC 5276 is not appropriate. The evidence does not show weak foot, rendering DC 5277 inapplicable. The Veteran has not been shown to have Morton's disease, so a rating under DC 5279 is not warranted. Also although hallux valgus has been diagnosed, a rating under DC 5280 would not result in an increased rating, as only a maximum 10 percent can be awarded. The Veteran's current symptomatology has already been accounted for in the rating under DC 5278. Although hammertoes are diagnosed, the Veteran has not demonstrated that all toes are affected, as such at most a noncompensable rating could be awarded. The evidence fails to show hallux rigidus and malunion or nonunion of tarsal or metatarsal bones. Therefore, ratings under DCs 5281 and 5283 are not for application. As such, the Board concludes that a rating in excess of 30 percent under other diagnostic codes available to evaluate foot disabilities is not warranted. 38 C.F.R. § 4.71a, DCs 5276, 5277, 5279, 5280, 5281, 5282 and 5283 (2013) In reaching this conclusion, the Board has also considered whether the Veteran's painful motion contributes to the actual limitation of motion such that an increased rating is warranted. Here, even when taking into account the pain on use experienced by the Veteran, the Board finds that an increased rating under all of the diagnostic codes used to evaluate foot disabilities, to include separate ratings for each foot, based on limitation of motion, is not warranted. See 38 C.F.R. § 4.40 (a little used part of the musculoskeletal system due to pain may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like). None of the VA treatment records or examinations shows that the Veteran has evidence of disuse such as muscle atrophy. The October 2008 VA examiner noted that weightbearing was normal as was gait. The December 2009 VA examiner additionally noted that weightbearing appeared to be normal. The March 2012 VA examiner indicated that there was no functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. For these reasons, the Board finds that the criteria for a rating in excess of 30 percent for postoperative left fifth osteotomy with bilateral hallux valgus, hammertoes, and callosities has not been met. The Board has also considered the statements of the Veteran that her disability is worse. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms of her bilateral foot disability because this requires only personal knowledge as it comes to her through her senses. Layno, 6 Vet. App. at 470. She is not, however, competent to identify a specific level of disability of this disorder-according to the appropriate diagnostic codes. Such competent evidence-concerning the nature and extent of the Veteran's postoperative left fifth osteotomy with bilateral hallux valgus, hammertoes, and callosities -has been provided by the medical personnel who have examined her during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which this disability is evaluated. Based on the evidence, the Board finds that a rating in excess of 30 percent is not warranted for the Veteran's service-connected postoperative left fifth osteotomy with bilateral hallux valgus, hammertoes, and callosities. The Board has also considered whether the Veteran is entitled to a referral for an extraschedular rating, which is a component of a claim for an increased rating under Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The Court has clarified the analytical steps necessary to determine whether referral for such consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). A determination of whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology first must be made by the RO or Board. If the rating criteria are inadequate, the RO or Board must proceed to determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. The Board finds that the first Thun element is not satisfied here. The Veteran's service-connected postoperative left fifth osteotomy with bilateral hallux valgus, hammertoes, and callosities is manifested by signs and symptoms such as pain. 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. Given the variety of ways in which the rating schedule contemplates functional loss for musculoskeletal disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture, which is manifested by impairment in standing and walking for long periods. In short, there is nothing exceptional or unusual about the Veteran's bilateral foot disability because the rating criteria reasonably describe her disability level and symptomatology. Thun, 22 Vet. App. at 115. Given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's postoperative left fifth osteotomy with bilateral hallux valgus, hammertoes, and callosities includes exceptional factors. Referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). III. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Service connection also may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2013). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2013); Allen v. Brown, 7 Vet. App. 439 (1995). Generally, in order to prevail on the issue of entitlement to secondary service connection, there must be: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence, generally medical, establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran has asserted throughout her appeal that her recurrent episodes of gastrointestinal bleeding are the direct result of medications taken for her service-connected left knee disability and now service-connected right knee disability. The Board finds that the requirements for a grant of secondary service connection have been met with respect to her recurrent episodes of gastrointestinal bleeding claim. The medical evidence of record demonstrates that the Veteran is currently diagnosed with recurrent episodes of gastrointestinal bleeding. In this regard, the Board notes that the requirement that a current disability be present is satisfied when a claimant has a disability at the time or contemporary to the time that a claim for VA disability compensation is filed or during the pendency of that claim, even if the disability resolves prior to the adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran is currently service connected for both her right and left knees. Turning to crucial Wallin element (3), various records address the etiology of the Veteran's recurrent episodes of gastrointestinal bleeding. The Board initially considers a February 2008 private treatment record which diagnosed the Veteran with an upper and lower gastrointestinal bleed secondary to arterial venous malformation. No rationale was provided for this diagnosis; as such it is afforded little probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). A July 2008 private treatment record noted a diagnosis of GI bleed probably from angiodysplasia or could be secondary to colitis, colon cancer or polyps. Similarly, a November 2008 VA treatment record noted a diagnosis of lower GI bleeding probably from angioectasias, colon source previously found, small bowel not studied. The Board notes that these opinions are speculative in nature. It is well-established that a speculative opinion cannot be used to establish a claim for benefits. Stegman v. Derwinski, 3 Vet. App. 228 (1992). A December 2008 VA examiner diagnosed the Veteran with recurrent episodes of gastrointestinal bleeding due to angiectasia/AVM of the cecum and ileocecal valve, treated with argon beam coagulation on 12/02/08. The VA examiner indicated that in his opinion her recurrent gastrointestinal bleeding is related to the angiectasia/AVM in the cecum and ileocecal valve that has been treated with argon beam coagulation. He indicated that he did not think there was any relationship between her recurrent bleeding and the naproxen that she has taken for her arthritis. Rationale for this determination was not provided. As such, this opinion is given no probative value for assessing her secondary service connection claim. A May 2009 private treatment record noted that the Veteran had sustained a knee injury while on active duty and was started on Naprosyn (NSAID) for inflammation and pain in 2000 by the VA. The physician noted that this family of drugs is known to cause gastrointestinal bleeding. The private gastroenterologist stated that the Veteran developed significant intestinal bleeding in 2005 while on Naprosyn that was started at the VA hospital clinic. He noted that the drug was discontinued by the VA in 2007 according to her history but since her initial episode of bleeding while on Naprosyn the Veteran has continued to have intermittent intestinal bleeding, anemia, and fatigue. He indicated that the Veteran had undergone a GI endoscopy which revealed gastritis, diverticulosis, and an AVM (arterio-venous malformation) in the colon. He noted that the AVM was cauterized. The private examiner, Dr. J. T. indicated that the Veteran had sustained a service-connected knee injury while on active duty that required Naprosyn which has caused her to have resulting bleeding and anemia. He noted that she is entitled to full disability since her condition more than likely will require lifelong intermittent blood transfusions and iron therapy. He noted that she will not be able to take NSAIDs or anti-inflammatory drugs since they will more than likely result in GI bleeding. The Veteran underwent an additional VA examination in December 2009. She was diagnosed with recurrent episodes of gastrointestinal bleeding felt to be due to angioectasia/AVM of the cecum and ileocecal valve treated with argon beam coagulation on 12/02/08. The VA examiner noted that the evidence points to lower rather than upper gastrointestinal bleeding. He indicated that he had reviewed Dr. J.T.'s opinion that Naprosyn given to her for her left knee had resulted in bleeding and anemia and that she will likely require lifelong intermittent blood transfusions and iron therapy. He stated that it was his opinion there was no evidence in her claims file that would support this opinion. He indicated that he believes the Veteran's bleeding is mainly of the lower gastrointestinal tract, and that the Veteran has a confirmed ateriovenous malformation of the cecum and ileocecal valve that has been treated with argon beam coagulation. He noted that her non-steroidal anti-inflammatory drugs (Naprosyn) were discontinued in November 2007 and she continued to have a rather massive bleed in February 2008 and again in July 2008, all requiring transfusions after she had been off Naprosyn for several months. It was his determination therefore that it was not etiologic in her bleeding, and he thinks her bleeding history is more consistent with it being due to lower gastrointestinal tract bleeding from the angioectasia and AV malformation in the cecum and ileocecal value. An opinion as to aggravation was not provided. In July 2012, the Veteran's private gastroenterologist submitted another etiological opinion. He once again reiterated that the Veteran had a history of intermittent gastrointestinal bleeding which started in 2000 after being started on a NSAID prescribed by the VA hospital. He noted that the Veteran had undergone multiple endoscopies for GI bleeding and that the Veteran had been noted to have angiodysplasia in the colon. He noted that the Veteran had taken Naproxen for a service-connected disability for a long period of time and that this drug more likely than not contributed to her condition. He indicated that this condition has rendered her totally disabled secondary to anemia, GI bleeding and chronic fatigue. An opinion as to aggravation was not provided. To that end, the Board notes that VA will resolve reasonable doubt where the evidence is in equipoise. 38 U.S.C.A. § 5107 (West 2002). VA shall consider all information and lay and medical evidence of record. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA resolve reasonable doubt in favor of the claimant. 38 C.F.R. § 3.102 (2013). Evidence is in approximate balance, or equipoise, when the evidence in favor and opposing the veteran's claim is found to be almost exactly or nearly equal. When the fact finder determines that the positive and negative evidence relating to a veteran's claim are nearly equal, thus rendering any determination on the merits 'too close to call,' reasonable doubt is resolved in favor of the claimant. Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). The Board finds that the evidence in this case is at least in equipoise with regard to the etiology of the Veteran's recurrent episodes of gastrointestinal bleeding, claimed as secondary to medication taken for her service-connected right and left knee disabilities. The Board finds that the evidence of record, both for and against the Veteran's claim, is nearly equal. There can be no doubt that further medical inquiry could be undertaken with a view towards clarifying the medical opinions of the medical reviewers noted above and requesting more detailed studies of whether the Veteran's recurrent episodes of gastrointestinal bleeding are directly caused by or aggravated by medications taken for the Veteran's service-connected left and right knee disabilities. However, the Board finds that would only prolong adjudication of this claim from a veteran whose claim has been pending for five years, especially in view of the fact VA has been unable to secure a comprehensive medical opinion despite various VA examinations. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that this disability is at least as likely as not related to her service-connected right and left knee disabilities, and therefore secondary service connection is warranted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A rating in excess of 30 percent for postoperative left fifth osteotomy with bilateral hallux valgus, hammertoes, and callosities is denied. Service connection for recurrent episodes of gastrointestinal bleeding, claimed as secondary to medication taken for service-connected right and left knee disabilities, is granted. REMAND As noted above the VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. The Board finds that additional development is necessary to satisfy VA's obligations under VCAA. Right and Left Knees- The Veteran was last afforded a VA knee examination in March 2012. A review of the Veteran's July 2012 BVA Hearing testimony suggests that there has been an increase in symptomatology of the Veteran's disabilities since the March 2012 VA examination. Specifically, the Veteran testified that she is now wearing bilateral knee braces. See BVA Hearing testimony (T.) at 4-5. At the Veteran's March 2012 VA examination she did not report the use of knee braces. Therefore, the Board finds that the Veteran should be afforded a new VA knee examination in order to determine the current nature and severity of her right and left knee service-connected disabilities. Snuffer v. Gober, 10 Vet. App. 400 (1997). TDIU- The law provides that a TDIU may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his or her service-connected disabilities. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013). As an initial matter, the Board acknowledges that the Veteran is currently service connected for postoperative left fifth osteotomy with bilateral hallux valgus, hammertoes and callosities (30 percent), chondromalacia of the left knee (30 percent), hypertension (10 percent), degenerative arthritis of the right knee (10 percent), tinnitus (10 percent), and bilateral hearing loss (noncompensable). However, pursuant to this opinion, the Veteran is now additionally service connected for her recurrent episodes of gastrointestinal bleeding. Additionally, adjudication of the TDIU issue must await further examination of the service-connected knee disabilities. Given the evidence of record demonstrating that the Veteran may be unemployable as a result of her service-connected disabilities, the Board has little choice but to Remand this matter to afford the Veteran a VA examination. Accordingly, the case is REMANDED for the following actions: 1. Updated treatment records should be obtained and added to the claims file. 2. Following completion of the above, schedule the Veteran for an examination to determine the current nature and extent of her right and left knee disabilities. The claims folder must be made available to the examiner in conjunction with the examination. The examiner should obtain a detailed clinical history from the Veteran. All pertinent pathology found on examination should be noted in the report of the evaluation. Any testing deemed necessary should be performed, including X-rays and appropriate range of motion studies. The range of motion of the Veteran's right and left knee disabilities should be set forth in degrees. The examiner should further comment as to whether there is any pain, weakened movement, excess fatigability or incoordination on movement, and whether there is likely to be additional range of motion loss due to any of the following should be addressed: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner is asked to describe whether pain significantly limits functional ability during flare-ups. All limitation of function must be identified. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. The examiner must then render an opinion concerning the effect of each of the Veteran's service-connected disabilities on her ordinary activity and her ability to procure and maintain employment. Any opinion(s) offered should be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any part of the requested opinions without resort to pure speculation, he or she should so indicate and provide a rationale as to why such a finding is made. 3. Then, schedule the Veteran for an appropriate VA examination to assess her employability. The examiner should review the claims folder, take a detailed history regarding the Veteran's employment, and education and vocational attainment, and examine the Veteran. The examiner should provide findings that take into account all functional impairments due to her service-connected disabilities - postoperative left fifth osteotomy with bilateral hallux valgus, hammertoes and callosities, chondromalacia of the left knee, hypertension, degenerative arthritis of the right knee, tinnitus, bilateral hearing loss, and recurrent episodes of gastrointestinal bleeding. The examiner is requested to provide a definitive opinion as to whether the Veteran's service-connected disabilities render her unable to secure or follow substantially gainful employment. The opinion should take into account the Veteran's employment history, and her educational and vocational attainment. The examiner must explain the rationale for any opinion(s) given, and if unable to provide the requested opinions without resorting to speculation, it should be so stated and explained. 4. Upon completion of the above, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran and her representative should be provided with a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the Veteran and her representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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). These claims 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). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs