Citation Nr: 1418110 Decision Date: 04/23/14 Archive Date: 05/02/14 DOCKET NO. 10-44 366 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a previously denied claim for service connection for hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the right knee (previously rated under Diagnostic Code 5257 as impairment, right knee, postoperative residuals). 4. Entitlement to service connection for a left knee disorder. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran served on active duty from January 1965 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). In the July 2010 Supplemental Statement of the Case, it appears that the RO reopened the Veteran's claim for bilateral hearing loss on the basis that new and material evidence had been received. However, before the Board may reopen a previously denied claim, it must conduct an independent review of the evidence to determine whether new and material evidence has been submitted sufficient to reopen a prior final decision. See Barnett v. Brown, 8 Vet. App. 1 (1995); 83 F.3d 1380 (Fed. Cir. 1996). Therefore, despite the RO's apparent action determining that new and material evidence has been received, the Board is bound to decide the threshold issue of whether the previously denied bilateral hearing loss claim should be reopened before addressing the merits of the claim. Id. The discussion of whether new and material evidence has been received is contained in the body of the decision below. The Board further notes that the TDIU issue as stated above was not certified for appeal. However, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered "part and parcel" of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). As the Veteran has claimed that he stopped working, in part, due to symptoms of his service-connected right knee disability, the issue of entitlement to a TDIU has been raised. See, e.g., VA examination reports dated in August 2009 and June 2010. Given the foregoing, the Board has recharacterized the appeal to include the issue of entitlement to a TDIU. The Board has reviewed the Veteran's physical claims files as well as the record maintained in the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS). The issues of entitlement to service connection for a left knee disability and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if additional action is required on his part. FINDINGS OF FACT 1. Service connection for hearing loss was denied by the RO in a November 1992 rating decision and was not appealed; the November 1992 rating action is the last final denial decision as to this issue on any basis before the present attempt to reopen the claim. 2. The evidence received since the November 1992 RO decision is redundant of evidence previously considered and does not raise a reasonable possibility of substantiating the claim of service connection for hearing loss; therefore, the evidence is not material. 3. Tinnitus was not manifest during the Veteran's military service; and, the preponderance of the evidence is against a finding that the Veteran's tinnitus is etiologically related to his active service, to include noise exposure. 4. The Veteran's right knee disability is primarily manifested by X-ray evidence of degenerative joint disease with pain on motion, and range of motion limited by no more than 10 degrees of extension or 120 degrees of flexion. CONCLUSIONS OF LAW 1. The November 1992 rating decision that denied service connection for bilateral hearing loss is final; new and material evidence has not been submitted since then to reopen this previously denied and unappealed claim. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.156(a), 20.1103 (2013). 2. Tinnitus was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). 3. The criteria for a disability rating in excess of 10 percent for degenerative joint disease of the right knee are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5003-5260 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist 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; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the 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 his representative has alleged prejudice with respect to notice, as is required. Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in June 2009, of VA's duty to assist him in substantiating his claims and the effect of this duty upon his claims. This letter also informed him of how disability ratings and effective dates are assigned. Dingess, 19 Vet. App. at 484. The June 2009 letter also informed the Veteran of what constituted new and material evidence to reopen the previously denied unappealed claim for service connection for hearing loss. He was informed that evidence is new if it is submitted to the VA for the first time and that material evidence must pertain to the reason the claim was previously denied. This correspondence also met the specificity required under Kent v. Nicholson, 20 Vet. App. 1 (2006), as the Veteran was advised of the exact reason for the previous denial and the evidence needed to reopen the claim for service connection. In addition, this letter notified the Veteran of the types of evidence that may reflect a worsening of his service-connected right knee disability. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Because the letter addressed all notice elements and predated the initial adjudication by the AOJ in October 2009, nothing more is required. VA has also satisfied its duty to assist the Veteran in the development of his claims decided herein. In-service treatment records and pertinent post-service records have been obtained and associated with his claims folder, or are otherwise viewable on the Virtual VA and VBMS electronic file systems. The Veteran has also submitted private treatment records and personal statements in support of his claims. The Board finds that there is no additional existing evidence that is necessary for a fair adjudication of the claims decided herein that has not been obtained. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. Green v. Derwinski, 1 Vet. App. 121 (1991). The Board recognizes that the RO obtained VA audio examinations in August 2009 and October 2011. However, VA need not conduct an examination or obtain a medical opinion with respect to the issue of whether new and material evidence has been received to reopen the previously denied claim of service connection for hearing loss because the duty under 38 C.F.R. § 3.159(c)(4) applies to a claim to reopen only if new and material evidence is presented or secured. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Board does, however, find that these VA examinations are thorough and adequate upon which to base a decision with regard to the Veteran's hearing loss and tinnitus claims. They reflect a full review of all medical and other evidence of record, are supported by sufficient detail, and refer to specific documents and medical history as well as the Veteran's service history to support the conclusions reached. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board has considered that the Veteran has not been afforded a VA examination of his service-connected right knee since June 2010, but finds that the medical evidence of record in this case is not too old to adequately evaluate his disability. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007) [another VA examination is not warranted based on the mere passage of time]. No competent medical evidence, by or on behalf of the Veteran, has been submitted which suggests that his service-connected right knee disability has become worse in the period of time since the last evaluation. See Counts v. Brown, 6 Vet. App. 473, 478-79 (1994) and Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) [VA's duty to assist is not a license for a "fishing expedition"]. Moreover, given the dearth of pertinent clinical findings since the June 2010 VA examination and the fact that the history provided by the Veteran during that examination, and considered by the examiner, is consistent with that reflected in the record, the report of that examination (which reflects not only the Veteran's history, but complaints, clinical findings and diagnoses) provides the information necessary to evaluate his service-connected right knee disability under the applicable rating criteria. 38 C.F.R. § 4.2 (2013); Abernathy v. Principi, 3 Vet. App. 461 (1992). Thus, the Board finds that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claims decided herein under the VCAA. No useful purpose would be served in remanding these matters for yet more development. A remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit to the Veteran. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); & Quartuccio v. Principi, supra. II. Law and Analysis - Hearing Loss In November 1992, the RO denied service connection for hearing loss on the basis that there was no evidence of any complaints, treatment, injury, abnormalities or diagnosis of any hearing problems in service, including at the time of the Veteran's separation examination in November 1968. A post-service VA examination in October 1992 showed bilateral high frequency sensorineural hearing loss at the 4000 Hz level. Although the clinical impression was bilateral high frequency hearing loss consistent with noise exposure, the audiologist did not specifically relate it to military noise exposure. The Veteran did not appeal this adverse determination, nor did he submit any additional evidence within a year following this decision. See 38 C.F.R. § 3.156(b); Buie v. Shinseki, 24 Vet. App. 242 (2010). The decision, therefore, became final based on the evidence then of record. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103. In April 2009, the Veteran filed an informal claim, seeking to reopen the hearing loss claim. The current appeal arises from the RO's October 2009 rating decision that found new and material evidence had not been received to reopen this matter. Regardless of the RO's actions, the Board must still determine whether new and material evidence has been received in this matter. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); see also Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the Veteran's previously and finally denied claims). When an unappealed rating decision by the RO becomes final, that claim may only be reopened by the submission of new and material evidence. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002). When determining whether a claim should be reopened, the Board performs a two-step analysis. The first step is to determine whether the evidence presented or secured since the last final disallowance of the claim is "new" and "material." 38 U.S.C.A. § 5108; Smith v. West, 12 Vet. App. 312 (1999). Also, if VA finds that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of a veteran's claim in light of all evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140 (1991); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510 (1992). VA regulation defines "new" evidence as existing evidence not previously submitted. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) clarified that the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court held that, when evaluating the materiality of newly submitted evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id., at 117. The Board finds that new and material evidence has not been submitted since the last final rating decision. As noted above, the RO essentially determined that the medical evidence in November 1992 did not establish that the Veteran's bilateral hearing loss was related to his military service. Since the November 1992 rating decision, newly-received evidence includes medical opinions from a VA audiologist who concluded that the Veteran's current hearing loss was less likely as not related to military service. She noted that since the Veteran's hearing was within normal limits throughout his military service it would appear that his current hearing loss had occurred subsequent to military service. See VA Audio Exam dated August 17, 2009 and DBQ Hearing Loss and Tinnitus Exam Medical Opinion dated October 25, 2011. Newly-received evidence also consists of the Veteran's continued allegations that he experienced acoustic trauma while in service. The Board finds that, although the additional VA examinations are "new" to the extent that they were not of record previously, they do not offer any probative evidence showing that the Veteran's hearing loss is due to or otherwise related to service. See Cornele v. Brown, 6 Vet. App. 59, 62 (1993). On the contrary, the examinations include a medical opinion to the effect that the Veteran's hearing loss is not related to service or any incident of service. In other words, the newly submitted evidence is not material and does not trigger a reopening. See Villalobos v. Principi, 3 Vet. App. 450 (1992) [evidence that is unfavorable to a claimant is not new and material]. Consequently, none of the newly-received evidence is pertinent to the question of whether the Veteran's bilateral hearing loss is related to his military service, (which is the pivotal issue underlying the claim for service connection). Thus, it does not relate to unestablished facts needed to substantiate the claim and cannot raise a reasonable possibility of substantiating the issue. The record still lacks competent evidence demonstrating that the Veteran's current hearing loss is related to his military service. To the extent that the Veteran has offered lay statements in an attempt to establish service connection, the Board notes that such evidence essentially constitutes reiterations of assertions which were advanced and addressed by the RO in November 1992, and, thus, cannot be considered "new" within the meaning of 38 C.F.R. § 3.156(a). See Reid v. Derwinski, 2 Vet. App. 312, 315 (1992); see also Moray v. Brown, 5 Vet. App. 211, 214 (1993). Rather his assertions in this regard serve only to reinforce a fact that was well known at the time of the November 1992 RO decision, namely that the Veteran has bilateral hearing loss, a fact which was not in dispute. Therefore, the Board concludes that new and material evidence has not been received sufficient to reopen the previously denied claim for service connection for hearing loss. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). III. Law and Analysis - Tinnitus Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Tinnitus is not a qualifying chronic disease under 38 C.F.R. § 3.309(a). Service connection is granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). After considering all information and lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The Veteran contends that he suffers from tinnitus as a result of acoustic trauma sustained in service. He contends that he was exposed to noise from military generators, converters, and radio equipment. See VA examinations dated in August 2009 and October 2011. Tinnitus is defined as "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." Dorland's Illustrated Medical Dictionary, 1956 (31st ed. 2007). Because tinnitus is subjective, its existence is generally determined by whether or not the veteran claims to experience it. Thus, for VA purposes, tinnitus is a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran's service treatment records are negative for complaints, findings or treatment of tinnitus or any specific instances of complaints or treatment stemming from noise trauma, including at separation in November 1968. The Board notes that in his April 2009 claim for service connection, the Veteran did not list any dates of medical treatment or evaluation for tinnitus at any time following service separation. There are also no post-service medical records dated immediately after service referencing hearing or tinnitus problems. In fact, the claims folder is devoid of any pertinent treatment records or other medical documents until a VA audiological consultation in October 1992, 24 years later. The next relevant evidence is an August 2009 VA audiological examination. At that time the Veteran reported exposure to noise from generators, converters, and radio equipment while in the service, but was unsure of the date and circumstances of the onset of tinnitus. He denied any history of occupational or recreational noise exposure. After reviewing the claims file in its entirety, taking a detailed history of the Veteran's military service (including the reports of noise exposure), the examiner concluded that the Veteran's tinnitus was not caused by or a result of military service noise exposure. She explained that since there were no documented complaints of tinnitus in medical records and the Veteran was unsure of the onset of his tinnitus, it was less likely as not related to military service. In an addendum to this opinion the same audiologist indicated additional review of the claims file and reiterated her prior conclusion that it was less likely than not that the Veteran's tinnitus was related to noise exposure during service. The audiologist noted that the Veteran could not be specific, or even general, regarding the onset of his tinnitus. She went on to explain that most often a person has an idea when something that can be debilitating, such as tinnitus, began. There were also no documented complaints of tinnitus in his medical records. Therefore, her opinion regarding tinnitus remained unchanged. In this case, the preponderance of the evidence is against the finding that the Veteran's tinnitus is related to his active service, to include noise exposure. The fact that he may have been exposed to some degree of acoustic trauma during service is conceded, but that fact alone does not establish a basis for the grant of service connection. The service treatment records do not show tinnitus as indicated by the VA audiologist who reviewed such records. There is also a very lengthy period after service discharge in which there is no evidence of tinnitus complaints. While not outcome determinative, the fact remains that decades passed before the Veteran made any complaint of tinnitus. He couldn't even recall the initial onset of his tinnitus. Such clearly undermines any assertion of continuity of symptomatology. Furthermore, the Board finds the VA opinions are highly probative as they are based upon a complete review of the Veteran's entire claims file and supported by detailed rationale. The VA audiologist considered the Veteran's history of noise exposure, the results of the personal clinical evaluation, the relevant history as contained in medical records from service onward, and discussed the Veteran's symptoms in the context of that history. She thus had sufficient facts and data before her. As a result, she was able to address fully the salient question as to the origin of the Veteran's current tinnitus and its relationship to military service. Moreover, the claims folder contains no competent medical evidence refuting this opinion. In Dalton v. Nicholson, 21 Vet. App. 23 (2007), the Court determined that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and, instead, relied on the absence of evidence in the Veteran's service treatment records to provide a negative opinion. The facts here are distinguishable because the VA audiologist clearly recognized that the Veteran had noise exposure while in the military (relevant in-service injury). She instead concluded that the noise exposure in service was not the precipitant of his tinnitus when also considering the lack of continuity of care and the uncertainty as to onset. Therefore, after weighing all the evidence, the Board finds greater probative value in the VA audiologist's conclusions, and, in light of the other evidence of record, the negative nexus opinions are sufficient to satisfy the statutory requirements of producing an adequate statement of reasons and bases where the expert has fairly considered material evidence which appears to support the Veteran's position. Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995). Consideration has been given to the Veteran's contention that his tinnitus is related to his in-service noise exposure. The Board is keenly aware that lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994) Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The United States Court of Appeals for the Federal Circuit has held, however, that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. So, to ultimately have probative value, the Veteran's assertions also have to be credible and judged in relation to the other evidence in the file - including any medical evidence addressing the determinative issue of causation. See Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno, 6 Vet. App. at 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Here, the Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise to attribute tinnitus to a specific cause. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. Moreover, as noted, the record includes competent medical opinions in the record that conclusively found no etiological relationship between the noise exposure in service and the subsequent development of tinnitus. As has been noted, the Veteran has not established that he has experienced continuous tinnitus since his military service, only believing instead there must be some correlation between this condition and his military service - in effect, by logical deduction - because he was exposed to loud noise while in service. But this inductive leap would require ignoring that the Veteran did not report any such difficulties upon separation examination and the significant lapse in time between service and post-service medical treatment, which the VA examiner apparently considered more significant. In this case, the Board finds that the Veteran's statements regarding a relationship between his in-service noise exposure and tinnitus is not sufficient to overcome the evidence of record weighing against such a relationship. Jandreau, supra & Buchanan, supra. Accordingly, the preponderance of the evidence is against the claim, and there is no reasonable doubt to be resolved. 38 U.S.C.A. § 5107(b). IV. Law and Analysis - Right Knee Arthritis In this case, the Veteran contends that his service-connected right knee disability is more disabling than the current disability rating reflects. Disability evaluations are determined by comparing a veteran's present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2013). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). Although a review of the recorded history of a disability is necessary in order to make an accurate evaluation, see 38 C.F.R. §§ 4.2, 4.41, the regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. See Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). However, where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119 (1999). The Court has also held that staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran's degenerative arthritis of the right knee is currently rated as 10 percent disabling under DCs 5003-5260. Arthritis due to trauma, substantiated by X-ray findings, is rated as degenerative arthritis. Degenerative arthritis when established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, DCs 5003 and 5010. Under DC 5260 where flexion is limited to 45 degrees, a 10 percent rating is assigned. When flexion is limited to 30 degrees, a 20 percent rating is assigned; and when flexion is limited to 15 degrees, a 30 percent rating is assigned. 38 C.F.R. § 4.71a. Under DC 5261, limitation of extension of the leg is rated 10 percent disabling at 10 degrees, 20 percent disabling at 15 degrees, 30 percent disabling at 20 degrees, 40 percent disabling at 30 degrees, and 50 percent disabling at 45 degrees. 38 C.F.R. § 4.71a. Normal range of motion in the knee is 0 degrees of extension and 140 degrees of flexion. See 38 C.F.R. § 4.71a, Plate II. Separate ratings may also be assigned for disability of the same joint under DC 5260 (limitation of flexion of the leg) and DC 5261 (limitation of extension of the leg). VAOPGCPREC 9-04 (Sept. 17, 2004), published at 69 Fed. Reg. 59,990 (2006). Specifically, where a veteran has both a limitation of flexion and a limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. Id. Evidence relevant to the severity of the Veteran's service-connected right knee disability includes, in addition to his assertions of increased symptomatology, VA clinical records, and VA examination reports. During VA examination in August 2009, the Veteran's in-service history of right knee problems and medial meniscus surgery was briefly summarized. His current complaints were of daily pain and "lock ups" were noted. The Veteran reported an increase in pain with prolonged walking, sitting, standing, or with changing positions. He wore an elastic support which helped, but did not require any assistive devices. The knee pain interfered with daily activities and his previous occupation in pest control. Examination of the right knee showed no deformity, swelling, or palpable tenderness. During range of motion testing, the Veteran had full extension without pain and flexion to 120 degrees with pain. There was mild crepitus, but no laxity or instability. Lachman's and McMurray's testing were both negative. Active range of motion did not produce any weakness, fatigue or incoordination and there was no additional loss of range of motion with repetitive movements. The diagnosis was narrowing of the medial joint space and moderate tricompartmental degenerative joint disease of the right knee, chronic knee pain with good range of motion. The Veteran was afforded a VA examination most recently in June 2010. At that time his complaints of constant right knee pain remained unchanged. However he did note that he could not safely use stairs due to giving of his knee and that he had difficulty driving for greater than 30 minutes. There were no periods of flare-up. The Veteran had used a brace for a number of years, which had been helpful, but discontinued it after developing a rash. He was able to accomplish his activities of daily living, but it took him longer to do so. On examination the Veteran had normal gait. Range of motion of the right knee was from 10 to 130 degrees with pain and crepitus throughout. There was no instability to varus or valgus stress and a negative Lachman's. There was tenderness but no effusion. There were no additional limitations following repetitive use and no flare-ups. There was no effect of incoordination, fatigue, weakness, or lack of coordination, fatigue, weakness, or lack of endurance on his joint function. X-rays showed degenerative joint disease in all three compartments of the right knee with medial joint line narrowing. The remaining outpatient treatment records from 2009 show continued evaluation and treatment of the Veteran for right knee pain. In general, the clinical findings are not materially different from those reported on VA examinations and show that, while the Veteran continued to report chronic pain and related symptoms, there is no indication of a worsening in range of motion or functional impairment to warrant higher evaluations. Based on the preceding evidence, the criteria for ratings in excess of 10 percent have not been met. The Veteran exhibits appreciable loss of extension in the right knee. However, even with complaints of pain, the results from the VA examinations do not show limitation of flexion (to 45 degrees) or extension (to 15 degrees) sufficient to warrant a separate 10 percent or an increased 20 percent evaluation under DCs 5260 or 5261, respectively. 38 C.F.R. § 4.71a. There is also no credible evidence of pain on use or flare-ups that result in additional limitation of motion to the extent that the right knee would be more than 10 percent disabling under the limitation-of-motion codes. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran's functional loss due to pain is adequately covered by the 10 percent rating. He has not identified any functional limitation, which would warrant a higher or additional rating under any applicable rating criteria. In fact, even with complaints of pain, the clinical record reflects an ability to extend his knee to at least 10 degrees, which still leaves the degree of limitation of motion short of what is required for a rating in excess of 10 percent for limitation of extension (i.e., 15 degrees or more of extension) or a compensable rating for limitation of flexion (i.e., 30 degrees or flexion) under DCs 5260 and 5261. Although the Board is required to consider the effect of the Veteran's pain when making a rating determination, and has done so in this case, the Rating Schedule does not provide for a separate rating for pain. Rather, it provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. Spurgeon v. Brown, 10 Vet. App. 194 (1997). Indeed, the Court clarified that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Court specifically discounted the notion that the highest disability ratings are warranted where pain is merely evident as it would lead to potentially "absurd results." Id. at 43 (limiting the scope and application of its prior holding in Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991)). It was stated that 38 C.F.R. § 4.40 provides that joint pain alone, and even pain throughout the entire range of motion, but without evidence of decreased functional ability, does not warrant the minimum compensable rating. Here, a higher rating based on guarding without any quantifiable loss due to actual pain does not serve as basis for an increased rating. The Veteran is already being adequately compensated for pain. The range-of-motion findings of record do not support the assignment of separate ratings for impairment of flexion and extension, as the documented ranges reported fall outside the criteria. VAOPGCPREC 9-04. Lastly, separate ratings may also be assigned for knee disability under DCs 5257 and 5003 where there is recurrent subluxation or lateral instability in addition to X-ray evidence of arthritis. See generally VAOPGCPREC 23-97 and VAOPGCREC 9-98. These opinions appear to require persuasive evidence that a claimant actually suffers from the symptomatology set forth in the different rating codes before separate ratings may be assigned. Under DC 5257, a 10 percent rating is warranted for slight impairment, including recurrent subluxation or lateral instability of the knee. An evaluation of 20 percent requires moderate impairment, including recurrent subluxation or lateral instability of the knee. An evaluation of 30 percent requires severe impairment, including recurrent subluxation or lateral instability of the knee. 38 C.F.R. § 4.71a. Although the Veteran has repeatedly complained of his right knee giving way and his prior use of a knee brace arguably suggests some level of instability, there is no objective evidence of ligamentous laxity of the right knee in VA clinical records or on VA examination. The objective medical evidence does not establish separate manifestations of recurrent subluxation or lateral instability warranting a separate compensable evaluation under DC 5257. Higher ratings may also be assigned to several other knee disabilities, if shown. Here, the only other possibilities for a higher disability rating would be under DC 5256, for ankylosis; under DC 5258 for dislocation of the semilunar cartilage; under DC 5262, for nonunion of the tibia and fibula; or under DC 5263 for genu recurvatum, none of which is present in this case. 38 C.F.R. § 4.71a. However, the medical evidence does not show that any of these conditions has been demonstrated and shown to be a manifestation of the service-connected right knee disability and the Veteran does not claim that any of them is present. The Board must determine whether the schedular rating is inadequate, requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1). An extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of an award of an extraschedular rating. Otherwise, the schedular rating is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 11. The schedular evaluations are adequate in the present case. Evaluations in excess of the one assigned are provided for certain manifestations of the service-connected right knee disability, but the medical evidence reflects that those manifestations are not present here. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's right knee disorder. As the rating schedule is adequate to evaluate the disability, referral for extra-schedular consideration is not in order. Thus, the current level of disability shown is encompassed by the 10 percent rating assigned and with due consideration to the provision of 38 C.F.R. § 4.7, a higher evaluation is not warranted. Hart, supra. A preponderance of the evidence is against the claim adjudicated herein. There is no reasonable doubt to be resolved. 38 U.S.C.A. § 5107(b) (West 2002). ORDER New and material evidence having not been received, the claim to reopen the issue of entitlement to service connection for hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the right knee is denied. REMAND The Veteran is seeking service connection for a left knee disorder. He contends that his left knee disorder is secondary to his service-connected right knee disability. The Board has determined that additional development is required for the reasons discussed below. A VA examiner concluded that the Veteran's current left knee tricompartmental degenerative joint disease was less likely than not that related to his service-connected right knee disability. However, this opinion does not sufficiently address the question of whether there is additional disability resulting from aggravation of the left knee by the service-connected right knee disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (holding that 38 C.F.R. § 3.310(a) authorizes a grant of service connection not only for disability caused by a service-connected disability, but for the extent of additional disability resulting from aggravation of a non-service-connected disability by a service-connected disability). Consequently, the Board finds the VA examination report is inadequate. See Hayes v. Brown, 9 Vet. App. 67, 73 (1996). Once VA undertakes the effort to provide an examination when developing a service-connection claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As such, the Board has no discretion and must remand this matter for a more definitive medical opinion to include whether the Veteran's left knee disability is aggravated by his service-connected right knee disability. As was briefly noted in the Introduction section of this decision, the issue of entitlement to a TDIU is raised by the record as part and parcel of the Veteran's claim for a higher rating for his right knee disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board notes that this claim is inextricably intertwined with the left knee claim and should be considered on a schedular or extraschedular basis after a decision on that issued is rendered. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Thus, adjudication of the TDIU issue must be deferred until after the issue of service connection for a left knee disability has been adjudicated. In doing so, the RO may decide to pursue further development of the Veteran's employment history, or to obtain additional medical evidence from disability providers or a medical opinion, as is deemed necessary. With regard to whether TDIU is warranted on an extraschedular basis, the RO would have to refer the matter to the Director of the Compensation and Pension Service. 38 C.F.R. § 4.16(b). Accordingly, the case is REMANDED for the following action: 1. Issue to the Veteran a VCAA notice letter pertaining to his TDIU claim. 2. Obtain copies of updated treatment records and add to the claims file. The Veteran should be notified if any private records sought are not received pursuant to the RO's request (and reminded that ultimately it is his responsibility to ensure that private records are received). If any records are unavailable, do not exist, or further attempts to obtain them would be futile, document this fact in the claims file. All such available documents should be associated with the claims folder or Virtual VA/VBMS folders (as appropriate). 3. Then, refer the Veteran for an appropriate VA examination to determine the nature and etiology of any left knee disorder present. The claims file must be made available to the examiner for review of the case, and the examination report should include a notation to the effect that this record review took place. All indicated tests and studies, including X-rays, should be performed, and the examiner should review the results of any testing prior to completing the report. After examining the Veteran and reviewing the relevant evidence in the claims file, the examiner should clearly identify the left knee disability(ies) found. The examiner should then provide an opinion as to whether it is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's current left knee disability is caused or aggravated by his service-connected right knee disability. If aggravation is found, the examiner should identify the baseline level of severity of the left knee disability to the extent possible. In other words, he or she should try to quantify the amount of additional disability the Veteran now has, above and beyond that which he had prior to the aggravation. If no aggravation is found, the examiner should specifically indicate so and explain why that is. Note: The term "aggravated" refers to a permanent worsening of the underlying condition, rather than temporary or intermittent flare-ups of symptoms which resolve with return to the baseline level of disability. If no causation or aggravation is found then provide an opinion to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any diagnosed left knee disability is traceable to any incidents, symptoms, or treatment that the Veteran experienced or manifested during service or is in any other way causally related to his military service. The examiner must discuss the underlying rationale for all opinions expressed, whether favorable or unfavorable, if necessary citing to specific evidence in the file. The examiner should acknowledge and discuss any of the Veteran's statements asserting continuity of left knee problems since service. The examiner should also set forth medical reasons for accepting or rejecting the Veteran's report (lay observations) concerning his left knee problems. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, he/she should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts), by a deficiency in the record (i.e. additional facts are required), or by the examiner himself/herself (because he/she does not have the needed knowledge or training). Merely saying he/she cannot comment will not suffice. 4. Ensure that the requested actions have been completed (to the extent possible) in compliance with this REMAND. If the examination report is deficient, it must be returned to the examiner for necessary corrective action, as appropriate. 5. After completing the requested actions, and any additional notification and/or development deemed warranted, the AOJ should FIRST readjudicate the service connection claim for left knee disability and THEN adjudicate the claim for TDIU in light of all pertinent evidence and legal authority. If the benefits are not granted, the Veteran and his representative must be furnished a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) 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). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs