Citation Nr: 1501525 Decision Date: 01/13/15 Archive Date: 01/20/15 DOCKET NO. 10-26 480 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased disability rating for right knee chondromalacia in excess of 10 percent from February 1, 2005 to November 21, 2005; February 1, 2006 to February 9, 2009; and April 1, 2009 to February 21, 2012. 2. Entitlement to an increased disability rating for right knee chondromalacia in excess of 20 percent from February 22, 2012. 3. Whether an overpayment of benefits was validly created in the amount of $576.00 due to the removal of the Veteran's daughter as a dependent, effective June 1, 2011. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL The Veteran, L.M., and D.D. ATTORNEY FOR THE BOARD D. Chad Johnson, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1979 to October 1983. This appeal comes to the Board of Veterans' Appeals (Board) from March 2005 and September 2011 decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran and L.M. testified during an August 2014 Travel Board hearing before the undersigned Veterans Law Judge (VLJ). Additionally, the Veteran and D.D testified during a November 2006 hearing before a Decision Review Officer (DRO). Transcripts of the hearings are included in the claims file. A September 2011 RO decision removed the Veteran's daughter as his dependent, and a December 2011 letter notified the Veteran of the resulting overpayment of $576.00. Later that same month, the Veteran submitted a notice of disagreement (NOD) with the September 2011 RO decision. 38 C.F.R. § 20.201 (2014). When a claimant files a timely NOD, the RO must prepare and send to the claimant a statement of the case (SOC). 38 C.F.R. §§ 19.26 , 19.29 (2014). Although this issue was not certified for appeal by the RO, the Board will address it for the sole purpose of ensuring the issuance of an SOC, as it does not appear from the record currently before the Board that an SOC has yet been issued following the Veteran's December 2011 NOD. The issues of entitlement to an increased disability rating for right knee chondromalacia in excess of 20 percent from February 22, 2012, and whether an overpayment of benefits was validly created in the amount of $576.00 due to the removal of the Veteran's daughter as a dependent, effective June 1, 2011, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. From February 1, 2005 to November 21, 2005, the Veteran's right knee chondromalacia was manifested by chronic pain, flexion limited to 85 degrees without pain, and full extension, which required Synvisc injections, use of a knee brace, and some light duty work restrictions; all of which is most closely approximated by the assigned 10 percent disability rating. 2. From February 1, 2006 to February 9, 2009, the Veteran's right knee chondromalacia was manifested by chronic pain, flexion limited to, at worst, 90 degrees (with objective evidence of painful motion beginning at 40 degrees), and full extension with pain, which required the use of a knee brace and some light duty work restrictions; all of which is most closely approximated by the assigned 10 percent disability rating. 3. From April 1, 2009 to February 21, 2012, the Veteran's right knee chondromalacia was manifested by chronic pain, flexion limited to 130 degrees (with objective evidence of painful motion at 90 degrees), full extension with pain, tenderness, and functional loss including less movement than normal, pain on movement, disturbance of locomotion, and interference with sitting, standing, and weight-bearing; additionally, a prior meniscal tear resulted in frequent episodes of joint pain; all of the above, which had no impact the Veteran's ability to work, is most closely approximated by the assigned 10 percent disability rating. CONCLUSION OF LAW The criteria for an increased disability rating for right knee chondromalacia in excess of 10 percent from February 1, 2005 to November 21, 2005; February 1, 2006 to February 9, 2009; and April 1, 2009 to February 21, 2012, have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5010, 5260, 5257 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process VA has statutory duties to notify and assist claimants in substantiating a claim for VA benefits. See, e.g., 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). With respect to increased rating claims, VA must provide generic notice of the evidence needed to substantiate the claim, namely evidence demonstrating a worsening or increase in severity of the disability, and general notice of how disability evaluations and effective dates are assigned. Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 97-103 (2010). The required notice was provided to the Veteran within a March 2005 notice letter. Regarding the duty to assist, the Veteran's service treatment records, VA treatment records, and private treatment records have been obtained and associated with the claims file. The Veteran was afforded relevant VA examinations in March 2005, January 2007, and February 2012. The VA examiners reviewed the claims file, considered pertinent evidence of record, including the Veteran's medical history, interviewed the Veteran, and conducted thorough clinical examinations. Importantly, the examination reports set forth detailed examination findings in a manner that allows for informed appellate review under applicable VA laws and regulations, and the examiners offered the necessary findings to apply the relevant rating criteria. For these reasons, the Board finds the VA examinations to be adequate regarding to the issues decided herein. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the prior medical history and examinations, and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). As noted above, the Veteran and L.M. testified during a September 2014 Travel Board hearing before the undersigned Veterans Law Judge (VLJ). Additionally, the Veteran and D.D testified during a November 2006 hearing before a Decision Review Officer (DRO). Transcripts of these hearings are of record. The DRO and undersigned VLJ fully explained the issues on appeal and suggested the submission of evidence that may have been overlooked. Neither the Veteran nor his representative has asserted that VA failed to comply with hearing duties or identified any prejudice in the conduct of the two hearings. The Board therefore finds that the DRO and undersigned VLJ properly complied with the hearing officer duties as described in Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010). Neither the Veteran nor his representative has identified any additional evidence relevant to the issues decided herein. Hence, no further notice or assistance is required to fulfill VA's duty to assist the Veteran and the Board will proceed with its adjudication. II. Increased Rating - Right Knee Chondromalacia Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4 (2014). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2014). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2014). When an unlisted disease or injury is encountered, it will be rated by analogy under a diagnostic code built up using the first two digits from that part of the Rating Schedule most closely identifying the body part or system affected and by using "99" for the last 2 digits. Id. The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran filed his increased rating claim in January 2005; therefore, the relevant temporal period is from January 2004 to the present. Additionally, the Board must consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Id. The RO has assigned separate rating periods from February 1, 2005 to November 21, 2005; February 1, 2006 to February 9, 2009; and April 1, 2009 to February 21. During these periods, the Veteran's right knee disability was rated as 10 percent disabling following the assignment of a prior temporary 100 percent total evaluation (TTE) under 38 C.F.R. § 4.30 (2014). The periods of time when the Veteran was assigned a TTE are not on appeal before the Board at this time; neither does the Board herein address the Veteran's assertions that he is entitled to an extended period or periods of TTE, as that issue has previously been adjudicated by the Board and is also not currently on appeal. However, the Board will consider herein the appropriateness of the subsequent periods stated above during which time the Veteran's right knee disability was rated as 10 percent disabling, as well as whether any additional staged rating periods are warranted. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40 (2014). Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding, 38 C.F.R. § 4.14 (2014), do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. However, those provisions should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45 (2014). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful, unstable, or malaligned joints, due to healed injury are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2014). With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. For the purpose of rating disability from arthritis, the knee is considered one major joint. 38 C.F.R. § 4.45. Arthritis shown by X-ray studies is rated based on limitation of motion of the affected joint. When limitation of motion would be noncompensable under a limitation of motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each major joint so affected. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2013). The criteria for the evaluation of traumatic arthritis direct that the evaluation be conducted under Diagnostic Code 5003, which states that degenerative arthritis 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, DC 5003, 5010. When, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent; in the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The above ratings are to be combined, not added under DC 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5010, Note 1. Separate ratings may be assigned for limitation of flexion and limitation of extension of the same knee. Specifically, where a Veteran has both a compensable level of limitation of flexion and a compensable level of 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. VAOPGCPREC 9-04 (Sept. 17, 2004), 69 Fed. Reg. 59990 (2005). Moreover, limitation of motion and instability of a knee may also be rated separately; in other words, evaluation of knee dysfunction based on both limitation of motion and instability does not amount to pyramiding under 38 C.F.R. § 4.14. See VAOPGCPREC 23-97 (July 1, 1997) and VAOPGCPREC 09-98 (August 14, 1998). Therefore, limitation of motion and instability of the knee may be rated separately, provided that any separate rating must be based upon additional disability. Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997). As noted above, the Veteran's right knee chondromalacia has been rated as 10 percent disabling during three separate rating periods from February 1, 2005 to November 21, 2005; February 1, 2006 to February 9, 2009; and April 1, 2009 to February 21, with each rating period following the assignment of a prior TTE. As discussed below, the Board finds that the Veteran is not entitled to an increased disability rating for right knee chondromalacia in excess of 10 percent for any of the assigned periods, nor does the evidence of record warrant the assignment of any additional rating periods. The Veteran's right knee chondromalacia has been variously rated under Diagnostic Code (DC) 5099-5257, which indicates an unlisted musculoskeletal disability evaluated by analogy to other impairment of the knee from recurrent subluxation or lateral instability, and DC 5299-5260, which indicates an unlisted musculoskeletal disability evaluated by analogy to limitation of motion of the leg. See 38 C.F.R. § 4.71a, DCs 5257, 5260 (2014). DC 5257 rates on the basis of recurrent subluxation or lateral instability. Id., DC 5257. Slight recurrent subluxation or lateral instability of the knee is rated as 10 percent disabling; moderate recurrent subluxation or lateral instability of the knee is rated as 20 percent disabling; and severe recurrent subluxation or lateral instability of the knee is rated as a maximum 30 percent disabling. Id. The words "slight," "moderate," and "severe" are not defined in the rating schedule. Use of terminology by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2014). Under DC 5260, limitation of flexion of a leg to 60 degrees warrants a noncompensable rating, limitation to 45 degrees warrants a 10 percent rating, limitation to 30 degrees warrants a 20 percent rating, and limitation to 15 degrees warrants a maximum 30 percent rating. See 38 C.F.R. § 4.71a, DC 5260. With regards range of motion, for rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. Id, Plate II. II.A. From February 1, 2005 to November 21, 2005 The Veteran's service-connected right knee chondromalacia is rated as 10 percent disabling from February 1, 2005 to November 21, 2005, under DC 5099-5257. Private treatment records from November 2004 document that the Veteran was seen by an orthopedic surgeon with complaints of knee pain along the medial joint line and a positive McMurray test. X-rays revealed no obvious osseous pathology, no loose bodies, and no significant bone spurs. The surgeon opined that the Veteran probably had a torn meniscus and scheduled him for arthroscopic surgery. The December 2004 operative report documents postoperative diagnoses of severe grade 3 and almost grade 4 chondromalacia, panpatella, articular surface; intraarticular loose body; and intraarticular synovitis. The orthopedic surgeon performed an arthroscopic removal of the loose bodies, with partial synovectomy, and a chondroplasty of the right knee. The Veteran tolerated the procedure well and was prescribed Vicodin for pain. In his January 2005 claim for an increased disability rating, the Veteran reported that his knee pain had increased in severity during 2004, which lead him to pursue several months of pain management treatment and ultimately arthroscopic surgery. He reported that the orthopedic surgeon told him he would require a knee replacement in the future. Additionally, he stated that he had missed three weeks of work and required six weeks of restrictions in his work duties before reevaluation of his condition. U.S. Postal Service employment records confirm that the Veteran returned to work in early February 2005. A March 2005 VA examination reviewed the operative report from the Veteran's December 2004 arthroscopy and noted that the Veteran was four months post-operative and going to physical therapy for rehabilitation once per week. The Veteran reported experiencing pain, some decreased range of motion, and popping in his knee, although he also reported experiencing popping prior to his surgery. The examiner documented the Veteran's use of a knee brace, with no other assistive devices, and that he was able to drive and was not taking any medication. There was no increased limitation with flare ups or repetitive motion, no incoordination, and no excess fatigability. Physical examination revealed edema around the knee, with some mild joint-like tenderness. The Veteran could flex his right knee to 85 degrees without pain, and had full extension of the right knee. There was no weakened movement, although the examiner noted a subpatellar click on flexion and extension. Lachman's and McMurray's tests were also negative. A March 2005 physical therapy progress report notes that the Veteran continued to complain of knee pain, with tightening and stiffness while standing at work, and increased pain when descending stairs. The reported documented that he had good range of motion with improving strength. In his May 2005 NOD, the Veteran reported constant, daily pain in his right knee, and expressed disagreement with the 10 percent disability rating assigned to his right knee disability. He stated that he was prescribed a knee brace to minimize the subluxation and lateral instability of his knee, and that his knee had to be taped during physical therapy due to the subluxation or dislocation of his knee, to provide lateral stability and relieve pain. He also disagreed with the March 2005 VA examiner's finding regarding his range of flexion to 85 degrees without pain, and reported that he could not even walk without pain. Finally, he requested a 20 percent disability rating for his severe chondromalacia and irreversible damage to his right knee. At a May 2005 follow up visit, the Veteran's orthopedic surgeon suggested a series of Synvisc injections, which the Veteran began in July 2005. In July 2005, the Veteran submitted a U.S. Department of Labor Certification of Health Care Provider form completed by his orthopedic surgeon. The surgeon noted the Veteran's diagnosis of chronic right knee chondromalacia with pain. He reported treatment including a course of three weekly Synvisc injections, with nonsteroidal anti-inflammatory drugs (NSAID) for pain management as needed. Finally, he noted there was no current incapacitation and that the Veteran could perform all essential functions of his work, with restrictions on lifting no more than ten pounds and walking or standing no more than six hours in an eight hour day. The Veteran also submitted several disability certificates confirming the orthopedic surgeon's restrictions. Private medical records indicate the Veteran was seen in October 2005 and reported his knee was the same, with difficulty squatting, and no change following his July 2005 Synvisc injections. A handwritten note indicates an x-ray confirming maltracking patella, with recommendations including a uni-compartment replacement (and noting the Veteran was "too young") and arthroscopy with lateral release. The records confirm that the Veteran was scheduled for arthroscopic surgery on November 22, 2005. The November 2005 postoperative report documents a diagnosis of severe patellofemoral arthritis of the right knee. The Veteran continued to report significant anterior knee pain, and it was felt that surgical release of the lateral retinaculum may be sufficient to relieve his symptoms. The surgeon noted significant damage to the underside of the patella, but that it was stable. He stated the remainder of the joint was inspected and found to be very well-preserved. The Veteran tolerated the procedure well, with prescribed pain medication and follow up after surgery. Following surgery, the Veteran was referred for physical therapy on his right knee, to occur three times per week for four weeks. As discussed herein, the Board finds that an increased rating in excess of 10 percent for the Veteran's right knee disability is not warranted from February 1, 2005 to November 21, 2005. As discussed above, x-ray results from November 2004 did not show degenerative arthritis in the Veteran's right knee. To the extent that the November 2005 postoperative report documents a diagnosis of arthritis in the right knee, the Board finds that it is outweighed by the additional medical evidence of record, which includes additional x-ray and MRI evidence that does not confirm a finding of arthritis. In any event, for an increased rating of 20 percent under DC 5003, there must be x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003. (emphasis added). The Board points out that for the purpose of rating disability from arthritis, the knee is considered one major joint. 38 C.F.R. § 4.45. Further, although DC 5003 does not define what constitutes an "incapacitating exacerbation," the term is defined elsewhere in the Rating Schedule for the musculoskeletal system in regards to intervertebral disc syndrome and in the Rating Schedule for the digestive system. See 38 C.F.R. § 4.71a , DC 5243, Note 1; see also 38 C.F.R. § 4.114, DCs 7345 and 7354, Notes (2) (2014). As used therein, an incapacitating episode is a period of acute signs and symptoms that require bed rest prescribed by a physician and treatment by a physician. Id. The Board has thoroughly reviewed the evidence of records in this regard, and finds that at no point does the Veteran allege or the medical record document bed rest specifically prescribed by a physician due to his right knee condition. Therefore, to the extent the November 2005 postoperative finding of arthritis could be construed as highly probative, the evidence is not persuasive in demonstrating that the Veteran's right knee disability resulted in any "incapacitating exacerbations" which would warrant a higher 20 percent rating under DC 5003. Further, a higher rating is not warranted based upon limitation of motion findings under DC 5260. Under DC 5260, limitation of flexion of a leg to 85 degrees warrants a noncompensable rating. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, full extension of a leg to 0 degrees warrants a noncompensable rating. 38 C.F.R. § 4.71a , DC 5261. As documented in the VA examinations discussed above, the Veteran does not have limitation of motion which would result in a compensable rating under DC 5260 or 5261. The Board is mindful of the Veteran's complaints of pain in his knee. As noted above, painful, unstable, or malaligned joints, due to healed injury are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2014). Therefore, the Board finds that the Veteran's current assigned 10 percent disability rating adequately contemplates his complaints of pain in his knee. Id. The Board also recognizes the Veteran's reported in his May 2005 NOD that his prescribed knee brace was to minimize the subluxation and lateral instability of his knee, and that his knee had to be taped during physical therapy due to the subluxation or dislocation of his knee, to provide lateral stability, and relieve pain. While the Board has considered the Veteran's lay statements in considering whether a higher rating is warranted under DC 5257, the Board finds the objective medical findings of record, including those of the March 2005 VA examiner, to be more probative as to the level of severity in this instance. The Veteran is not competent to diagnose complex orthopedic conditions such as instability and subluxation of the knee. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Notably, there are no medical findings during the relevant period of instability or subluxation in the Veteran's right knee. Thus, he is not entitled to a higher disability rating under DC 5257. 38 C.F.R. § 4.71a, DC 5257. The Board has also considered application of DC 5258, under which a 20 percent disability rating is warranted when there is dislocation of the semilunar cartilage (meniscus) with frequent episodes of locking, pain, and effusion into the joint. As these criteria are written in the conjunctive, all three elements must be met. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met); compare Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). The Board notes that while the March 2005 VA examiner noted a subpatellar click on flexion and extension, he did not document any episodes of locking or effusion. Therefore, an increased disability rating is not warranted under DC 5258. Finally, the record does not suggest that the Veteran has ankylosis, symptomatic removal of semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum, therefore DCs 5256, 5259, 5262, and 5263 are not for application. Id., DCs 5256, 5259, 5262, 5263. Thus, the preponderance of evidence of record weighs against the Veteran's claim of entitlement to an increased disability rating in excess of 10 percent for his right knee disability. There is no reasonable doubt to be resolved; therefore, the claim must be denied. See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2014); 38 C.F.R. §§ 3.102, 4.3 (2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II.B. From February 1, 2006 to February 9, 2009 Following his November, 2005 arthroscopic surgery, the Veteran followed up with his orthopedic surgeon in February 2006. At that time, he reported a knot on the lateral side of his knee at the site of the surgical release. His surgeon noted that the Veteran could straighten his leg to 120 degrees, but that there was effusion and decreased strength; he ordered continued physical therapy and certified that the Veteran could return to light duty work, with the following restrictions: no lifting over twenty-five pounds, no repetitive use or bending of the right knee, and no handling of parcels. At a November 2006 DRO hearing, the Veteran testified that, following his second knee surgery, he was issued a knee brace to help with stability and lateral support. He reported symptoms of daily pain in his right knee, with cracking, popping, buckling, and locking. He also reported swelling in his knee requiring daily treatment of ice and elevation, and that he could only walk around the block. Finally, he stated that his orthopedic surgeon told him at his last visit in May 2006 that the only thing that would fix his knee was a total knee replacement, which was not really an option given the Veteran's age, and that his symptoms would continue. The Veteran was afforded a VA knee examination in January 2007. The examiner reviewed the Veteran's claims file and obtained a medical history. The Veteran stated that he was not currently receiving treatment for his right knee. He reported symptoms including chronic knee pain and daily use of a knee brace for support. He stated that his occupation as a clerk required him to stand, which aggravated his knee and caused stiffness. He also reported difficulty with walking on inclines and stairs, running, and getting out of a car. He denied any additional limitations or flare ups. Upon physical examination, there were no deformities of the right knee, with no swelling and no palpable tenderness except medially. Range of motion findings included flexion to 90 degrees with pain beginning at 40 degrees, and full extension with pain medially. There was no weakness, fatigue, or incoordination, and no additional loss of range of motion upon repetition. Ligaments and meniscus were stable, with negative Lachman's and McMurray's tests, and there was no laxity or instability present. The Veteran was noted to walk with a slight limp favoring his right knee. The examiner diagnosed right knee chondromalacia, status post two arthroscopic surgeries for clean out, loose bodies, patella chondroplasty and partial synovectomy, and for lateral, medial, and patellar release, with chronic right knee pain made worse with activity. X-ray and MRI studies showed no evidence of fracture or dislocation, with minimal irregularity of the patella, without other changes to indicate an arthritic process, and mild chondromalacia, that was otherwise unremarkable. In September 2008, the Veteran submitted a VA Form 21-526 claiming a right knee fracture. His subsequent January 2009 statement reported that his knee had given out on some steps and caused him to fall and injure his knee. He sought initial treatment at the emergency room, with follow up by his primary doctor, who reviewed the x-rays and stated he had broken inner bones in his right knee, and an orthopedic surgeon, who provided him with a knee brace and ordered physical therapy. Following lack of improvement, an MRI was ordered in December 2008. At a January 2009 follow up, the MRI revealed a torn meniscus which required arthroscopic surgery in February 2009. Private medical records from September 2008 document the Veteran's complaints of right knee pain following a fall down some stairs. He received x-rays at the emergency room which revealed nondisplaced fractures of the tibial plateau and spine. He displayed marked tenderness but had good range of motion. He was provided non-weight bearing crutches and a hinged knee brace initially. Upon follow up in October 2008, the Veteran reported he was doing better with decreased pain. Upon examination, he had good range of motion and good strength. The plan was to increase weight bearing and begin physical therapy. In November 2008, the Veteran reported some improvement, although with significant discomfort. In December 2008, the Veteran continued to have knee pain. Lachman's and drawer tests were negative; however, and an MRI was ordered. In January 2009, the results of the MRI showed tearing of the medial meniscus after tibial plateau fracture. The physical examination was unchanged from the prior month. His surgeon recommended arthroscopic surgery. In February 2009, the Veteran underwent a right knee arthroscopy with medial and lateral partial meniscectomy, right knee chondroplasty, and right knee synovectomy. Upon follow up in February 2009, the Veteran was doing very well, with well-controlled pain and good range of motion. He was to begin physical therapy and home exercises, and could return to work when he felt confident to do so. The Veteran submitted a March 2009 statement which reported that he was referred for four weeks of physical therapy following his February 2009 surgery. He stated that he returned to limited duty work in March 2009 and that his physical therapy was extended an additional four weeks. As discussed herein, the Board finds that an increased rating in excess of 10 percent for the Veteran's right knee disability is not warranted from February 1, 2006 to February 9, 2009. As discussed above, x-ray and MRI studies during the relevant period showed no evidence of arthritis in the Veteran's right knee. Therefore, DC 5003 is not for application. 38 C.F.R. § 4.71a, DC 5003. Further, a higher rating is not warranted based upon limitation of motion findings under DC 5260. Under DC 5260, limitation of flexion of a leg to 90 degrees warrants a noncompensable rating. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, full extension of a leg to 0 degrees warrants a noncompensable rating. 38 C.F.R. § 4.71a , DC 5261. As documented in the VA examinations discussed above, the Veteran does not have limitation of motion which would result in a compensable rating under DC 5260 or 5261. The Board is mindful of the Veteran's complaints of painful motion in his knee. As noted above, painful, unstable, or malaligned joints, due to healed injury are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2014). Therefore, the Board finds that the Veteran's current assigned 10 percent disability rating adequately contemplates his complaints of painful motion in his knee. Id. The Board also recognizes the Veteran's November 2006 testimony that, following his second knee surgery, he was issued a knee brace to help with stability and lateral support. While the Board has considered the Veteran's lay statements in considering whether a higher rating is warranted under DC 5257, the Board finds the objective medical findings of record, particularly those of the January 2007 VA examiner, to be more probative as to the level of severity in this instance. The January 2007 VA examiner specifically noted that the Veteran's ligaments and meniscus were stable, without any laxity or instability. Moreover, the Veteran is not competent to diagnose complex orthopedic conditions such as instability and subluxation of the knee. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Notably, there are no medical findings during the relevant period of instability or subluxation in the Veteran's right knee, and his lay statements are not competent as to the issue. Thus, he is not entitled to a higher disability rating under DC 5257. 38 C.F.R. § 4.71a, DC 5257. The Board has also considered application of DC 5258, under which a 20 percent disability rating is warranted when there is dislocation of the semilunar cartilage (meniscus) with frequent episodes of locking, pain, and effusion into the joint. As these criteria are written in the conjunctive, all three elements must be met. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met); compare Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). The Board notes that while the Veteran's orthopedic surgeon found evidence of effusion in February 2006, in addition to the Veteran's competent and credible reports of pain, he did not document any episodes of locking. Moreover, while the Veteran testified in November 2006 that he experienced pain, locking, and swelling in his right knee, he is not competent to equate his observed swelling with effusion, which requires medical expertise. See Jandreau, 492 F.3d at 1377. Moreover, his lay statements in this regard are outweighed by the findings of the January 2007 VA examiner, who found no deformities or swelling of his right knee. Additionally, while it is arguable that the Veteran meets the criteria of experiencing symptomatic removal of semilunar cartilage under DC 5259, the Board finds that he is already being compensated for the pain and symptoms contemplated therein, such that any additional compensation under DC 5259 would be impermissible pyramiding. See 38 C.F.R. § 4.14 (2014). Finally, the record does not suggest that the Veteran has ankylosis, impairment of the tibia and fibula, or genu recurvatum, therefore DCs 5256, 5259, 5262, and 5263 are not for application. Thus, the preponderance of evidence of record weighs against the Veteran's claim of entitlement to an increased disability rating in excess of 10 percent for his right knee disability. There is no reasonable doubt to be resolved; therefore, the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. 49. II.C. From April 1, 2009 to February 21, 2012 In December 2009, June 2010, and August 2011 statements, the Veteran reported that his right knee treatment was ongoing and continuous from the time of his first knee surgery, that he was getting no relief from his daily pain, and that his condition continued to deteriorate. The Veteran was most recently afforded a VA knee examination in February 2012. The examiner reviewed the claims file and diagnosed severe right knee chondromalacia patella status post arthroscopy with residual myofascial pain, and right knee tibial plateau fracture and medial meniscal tear secondary to a fall caused by his right knee chondromalacia. The Veteran reported his medical history, including his fall in September 2008, leading to his most recent arthroscopic surgery in February 2009. He required constant use of a knee brace and a cane since the February 2009 surgery and reported increased pain with walking over a half a block, walking down stairs, and standing over two hours. He stated he was unable to squat, kneel, or run. He reported his employment history of over twenty years as a postal clerk and that he was able to tolerate employment. He did not report any flare ups. Range of motion findings of the right knee were as follows: flexion to 130 degrees with objective evidence of painful motion at 90 degrees, and no limitation of extension but with pain throughout. There was no additional loss of range of motion upon repetition; however, functional loss was noted as less movement than normal, pain on movement, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. He also displayed tenderness or pain to palpation of the right knee. Muscle strength testing and stability testing were normal, with no evidence or history of recurrent patellar subluxation or dislocation. The examiner noted the history of meniscal tear requiring surgery, which resulted in frequent episodes of joint pain; however, there were no frequent episodes of locking or effusion, and no residual symptoms from a meniscectomy or his arthroscopic surgeries. Finally, the examiner noted no x-ray evidence of arthritis or subluxation, and stated that the Veteran's right knee condition did not impact his ability to work. An addendum opinion provided by the same VA examiner in August 2012 stated that his previous opinion was unchanged, and that the Veteran was moderately disabled based upon his right knee condition, including the right knee tibial plateau fracture and medial meniscal tear. The Veteran testified at a Travel Board hearing in August 2014. He asserted that his right knee condition warranted a higher disability rating from February 1, 2005. He reported his medical history, including multiple arthroscopic surgeries and a fall resulting in a meniscal tear. He reported pain, swelling, weakness, and buckling in his right knee, but denied any locking. He stated that his job requires him to stand, which causes his knee to swell, and that he has a stool to sit on periodically. He further reported that he has used up nearly all of his sick leave due to his knee condition, including having to use FMLA leave and missing work approximately once a month. He reported problems with straightening and bending his knee going back to his first surgery in 2005 and asserted entitlement to a 20 percent disability rating from that time. L.M. also reported seeing the Veteran stumble due to weakness in his right knee. As discussed herein, the Board finds that an increased rating in excess of 10 percent for the Veteran's right knee disability is not warranted from April 1, 2009 to February 21, 2012. As discussed above, x-ray and MRI studies during the relevant period showed no evidence of arthritis in the Veteran's right knee. Therefore, DC 5003 is not for application. 38 C.F.R. § 4.71a, DC 5003. Further, a higher rating is not warranted based upon limitation of motion findings under DC 5260. Under DC 5260, limitation of flexion of a leg to 130 degrees warrants a noncompensable rating. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, full extension of a leg to 0 degrees warrants a noncompensable rating. 38 C.F.R. § 4.71a , DC 5261. As documented in the VA examinations discussed above, the Veteran does not have limitation of motion which would result in a compensable rating under DC 5260 or 5261. The Board is mindful of the Veteran's complaints of painful motion in his knee. As noted above, painful, unstable, or malaligned joints, due to healed injury are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2014). Therefore, the Board finds that the Veteran's current assigned 10 percent disability rating adequately contemplates his complaints of painful motion in his knee. Id. The Board also recognizes the Veteran's August 2014 testimony that he experienced buckling in his knee, and that he lacked control over his knee joint. While the Board has considered the Veteran's lay statements in considering whether a higher rating is warranted under DC 5257, the Board finds the objective medical findings of record, particularly those of the February 2012 VA examiner, to be more probative as to the level of severity in this instance. The February 2012 VA examiner specifically noted that muscle strength testing and stability testing were normal, with no evidence or history of recurrent patellar subluxation or dislocation. Moreover, the Veteran is not competent to diagnose complex orthopedic conditions such as instability and subluxation of the knee. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Notably, there are no medical findings during the relevant period of instability or subluxation in the Veteran's right knee, and his lay statements are not competent as to the issue. Thus, he is not entitled to a higher disability rating under DC 5257. 38 C.F.R. § 4.71a, DC 5257. The Board has also considered application of DC 5258, under which a 20 percent disability rating is warranted when there is dislocation of the semilunar cartilage (meniscus) with frequent episodes of locking, pain, and effusion into the joint. As these criteria are written in the conjunctive, all three elements must be met. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met); compare Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). While the Veteran testified in August 2014 that he experienced pain and swelling in his right knee, he specifically denied any locking. Moreover, the February 2012 VA examiner noted the history of meniscal tear resulting in frequent episodes of joint pain; however, he also noted that there were no frequent episodes of locking or effusion. Therefore, an increased rating is not warranted under DC 5258. Additionally, while it could be argued that the Veteran meets the criteria of experiencing symptomatic removal of semilunar cartilage under DC 5259, the Board finds that he is alredy being compensated for the pain and symptoms contemplated therein, such that any additional compensation under DC 5259 would be impermissible pyramiding. See 38 C.F.R. § 4.14 (2014). Finally, the record does not suggest that the Veteran has ankylosis, impairment of the tibia and fibula, or genu recurvatum, therefore DCs 5256, 5259, 5262, and 5263 are not for application. Thus, the preponderance of evidence of record weighs against the Veteran's claim of entitlement to an increased disability rating in excess of 10 percent for his right knee disability. There is no reasonable doubt to be resolved; therefore, the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, supra. III. Extraschedular/TDIU Considerations The Board has also considered whether referral is warranted in this case for an extraschedular rating. To accord justice in an exceptional case where the scheduler standards are found to be inadequate, case may be referred to the Chief Benefits Director or the Director of Compensation Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2013). Extraschedular consideration involves a three-step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, the Board or the RO must determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of Compensation Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The Board finds that the schedular evaluations assigned for the Veteran's right knee disability are adequate in this case. The diagnostic criteria adequately describe the severity and symptomatology of the disability based upon limitation of range of motion and painful motion. Moreover, the Veteran has not argued that his symptoms are not contemplated by the rating criteria; rather, he has merely disagreed with the assigned disability rating for his level of impairment. Nor has he alleged or indicated that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. See Johnson v. McDonald, 2013-7104, 2014 WL 3562218 (Fed. Cir. Aug. 6, 2014). Accordingly, referral for consideration of an extraschedular rating is not warranted, as the manifestations of the Veteran's disability are considered by the schedular rating assigned. Finally, although there is evidence of some interference with his employment, the Veteran has not contended, and the evidence does not otherwise indicate, that his right knee disability has rendered him unable to secure or follow a substantially gainful occupation. Moreover, although the Veteran testified in August 2014 that he missed approximately one work day per month, had used up nearly all of his sick leave, and had to use some FMLA leave due to his right knee disability, the February 2012 VA examiner specifically found that the Veteran's right knee disability had no functional impact on the Veteran's ability to work. Consequently, the matter of entitlement to a total disability rating based on individual unemployability (TDIU) is not raised in this instance. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER An increased disability rating for right knee chondromalacia in excess of 10 percent from February 1, 2005 to November 21, 2005; February 1, 2006 to February 9, 2009; and April 1, 2009 to February 21, 2012, is denied. REMAND Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. Specifically, remand is necessary regarding the Veteran's claim of entitlement to an increased disability rating for right knee chondromalacia in excess of 20 percent from February 22, 2012, in order to obtain any current treatment records and to afford him a current VA examination. Remand is also necessary in order for the AOJ to issue an SOC regarding the issue of whether an overpayment of benefits was validly created in the amount of $576.00 due to the removal of the Veteran's daughter as a dependent, effective June 1, 2011. I. Increased rating - right knee chondromalacia in excess of 20 percent from February 22, 2012 VA's duty to assist includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d). VA is required to conduct an accurate and descriptive medical examination based on the complete medical record. 38 C.F.R. §§ 4.1, 4.2; Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA's duty to assist includes "the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one"). The Veteran was last afforded a VA examination regarding his right knee disability in February 2012, and an addendum opinion was rendered in August 2012. The August 2014 Statement of Accredited Representative in Appealed Case asserts that the most recent VA examination is outdated and that it does not reflect the Veteran's current condition. In light of the more than two and a half years that have elapsed since the last VA examination regarding the Veteran's right knee disability, and his reports of a worsening condition, the Board concludes a new VA examination is necessary to determine the current severity of his service-connected right knee disability. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Additionally, upon remand, any recent treatment records, including VA records which are constructively of record, should also be obtained. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2014); 38 C.F.R. § 3.159(c) (2014); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). II. Validity of overpayment from removal of dependent, effective June 1, 2011 A September 2011 RO decision removed the Veteran's daughter as his dependent, and a December 2011 letter notified the Veteran of the resulting overpayment of $576.00. Later that same month, the Veteran submitted a notice of disagreement (NOD) with the September 2011 RO decision. 38 C.F.R. § 20.201. An SOC is required when a claimant protests a determination. 38 C.F.R. §§ 19.26, 19.29. To date, no SOC has been furnished in response to the Veteran's timely NOD, or at least no SOC has been associated with the claims file (physical or paperless) that is now before the Board. Therefore, remand is required for the issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The SOC must be issued unless the Veteran's claims are resolved, such as by a complete grant of the benefit sought, or withdrawal of the NOD. The Board notes it appears that the Veteran's daughter was added back to his award as a dependent child effective September 2014; however, this does not resolve his valid prior NOD. The remanding of this issue must not be read as an acceptance of jurisdiction over the same by the Board. The Board may only exercise jurisdiction over an issue after an appellant has filed both a timely NOD to a decision denying the benefit sought and a timely substantive appeal after issuance of an SOC. 38 U.S.C.A. § 7105; Roy v. Brown, 5 Vet. App. 554 (1993). The AOJ should return the issues to the Board only if the Veteran perfects his appeal in accordance with the provisions of 38 U.S.C.A. § 7105. Accordingly, the case is REMANDED for the following action: 1. Obtain all of the Veteran's relevant private and VA treatment records not already associated with the claims file, with authorization from the Veteran as necessary. All efforts to obtain outstanding treatment records are to be clearly documented, including any negative response received. 2. After completion of the above, schedule the Veteran for a VA examination to assess the current severity of his right knee disability. The entire claims file, including this Remand, must be made available to the examiner, and the examiner must indicate review of such records. Any indicated diagnostic tests and studies must be accomplished and all pertinent symptomatology and findings should be reported in detail. Specifically, the examiner should include a description of all impairment associated with the Veteran's right knee disability, including range of motion testing, observations of any functional loss, and whether the Veteran is precluded from securing or following a substantially gainful occupation (consistent with his education, training, and occupational experience) as a result of his service-connected right knee disability. A complete rationale for all opinions expressed should be provided. 3. Thereafter, readjudicate the issue of entitlement to an increased disability rating for right knee chondromalacia in excess of 20 percent from February 22, 2012. Provide the Veteran and his representative a supplemental statement of the case (SSOC) and an appropriate time to respond, after which the matter should be returned to the Board for further adjudication, if otherwise in order. 4. Issue an SOC addressing the issue of whether an overpayment of benefits was validly created in the amount of $576.00 due to the removal of the Veteran's daughter as a dependent, effective June 1, 2011. The Veteran must be advised of the time limit in which he may file a substantive appeal. 38 C.F.R. § 20.302(b) (2014). If, and only if, the Veteran timely perfects an appeal as to that issue, return the matter to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs