Citation Nr: 1605845	
Decision Date: 02/17/16    Archive Date: 03/01/16

DOCKET NO.  12-32 563	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to service connection for a qualifying chronic disability manifested by shortness of breath, to include as a result of an undiagnosed illness. 

2.  Entitlement to a higher initial rating for right shoulder tendonitis with right upper extremity radiculopathy, evaluated as 20 percent disabling prior to May 7, 2012 and as 40 percent disabling from May 7, 2012.  

3.  Whether reduction of the disability rating for service-connected cervical spine herniated disc status post fusion from 20 percent to 10 percent effective September 14, 2012, was proper. 

4.  Entitlement to a higher initial rating for the service-connected cervical spine herniated disc status post fusion. 

5.  Entitlement to a compensable disability rating prior to January 21, 2010 and in excess of 10 percent from January 21, 2010 for right knee degenerative joint disease.  

REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

C. L. Krasinski, Counsel

INTRODUCTION

The Veteran served on active duty from March 1982 to October 1995, January 1986 to January 1993, and June 2005 to April 2008.  

This matter came before the Board of Veterans' Appeals (Board) on appeal from rating decisions from the Atlanta, Georgia, Department of Veterans Affairs (VA) Regional Office (RO).  A February 2009 rating decision granted service connection for herniated disc of the cervical spine status post fusion and assigned a 20 percent rating from April 4, 2008.  Service connection was granted for right shoulder tendonitis and a 20 percent rating was assigned.  Service connection was also assigned for right knee degenerative joint disease and a zero percent rating was assigned from April 4, 2008.  Service connection was denied for a disability manifested by shortness of breath.  The Veteran perfected an appeal of these issues.  

An October 2012 rating decision assigned a 10 percent rating to the right knee disability from January 21, 2010.  The RO reduced the disability rating assigned to the cervical spine disability from 20 percent to 10 percent from September 14, 2012.  The Veteran expressed disagreement with the rating reduction at the hearing before the Board in October 2015.  

The Board notes that the Veteran's claim which led to the reduction at issue in this appeal, was a claim for a higher initial rating for the service-connected cervical spine disability and the Veteran properly perfected an appeal of that issue.  Considering that the reduction appeal arose from the claim for a higher initial rating, the Board will take jurisdiction of the reduction claim as part and parcel of the claim for a higher initial rating for the cervical spine disability because the claim of increased rating covers the period prior to, during, and after the reduction.  See Hart v. Mansfield, 21 Vet. App. 505, 509 (2007) (holding that a review of an increased rating claim may take into account varying and distinct disability ratings throughout the entire time period the increased rating claim has been pending, to account for the dynamic nature of the disorder at issue).  Accordingly, the Board takes jurisdiction of the issue of whether the reduction was proper.

A May 2015 rating decision granted entitlement to a total rating due to individual unemployability based upon service-connected disabilities (TDIU) from December 15, 2014.   

In October 2015, a hearing was held before the undersigned Veterans Law Judge.  A transcript of this hearing is of record.  In November 2015, the Veteran submitted a waiver of initial consideration of additional evidence by the agency of original jurisdiction (AOJ).  38 C.F.R. § 20.1304(c) (2015).

The issue of entitlement to a higher initial rating for the cervical spine disability is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.  

FINDINGS OF FACT

1.  The Veteran had active service in the Southwest Asia theater of operations during the Persian Gulf War.
 
2.  The Veteran's diagnosable chronic multi-symptom illness, manifested by shortness of breath, has a partially explained etiology. 

3.  On October 20, 2015, prior to the promulgation of a decision by the Board, the Veteran indicated in a written statement that he was withdrawing the appeal as to the claim of entitlement to an initial higher rating for the right shoulder tendonitis with right upper extremity radiculopathy, evaluated as 20 percent disabling prior to May 7, 2012 and as 40 percent disabling from May 7, 2012.  

4.  The October 2012 rating decision reduced the disability rating for the service-connected cervical spine disability from 20 percent to 10 percent effective September 14, 2012, resulting in a decrease in the Veteran's combined disability rating from 60 percent to 50 percent and a reduction in compensation payments.  
 
5.  Prior to the October 2012 reduction, the Veteran was not provided with a rating decision proposing to reduce the disability rating for the service-connected cervical spine disability or notice of the 60 day period to submit evidence and of the right to request a predetermination hearing.

6.  Prior to January 21, 2010, the service-connected right knee degenerative joint disease has been manifested by pain, full range of motion, and normal gait, with no instability, fatigability, incoordination, or weakness of the knee joint, arthritis, or functional loss or impairment.

7.  From January 21, 2010, the service-connected right knee degenerative joint disease has been manifested by pain, noncompensable limitation of flexion, objective evidence of painful flexion from 100 degrees, full extension, functional loss manifested by painful movement, x-ray evidence of mild arthritis in 2012, and normal gait, with no objective evidence of instability, fatigability, incoordination, or weakness of the knee joint. 


CONCLUSIONS OF LAW

1.  The criteria for the establishment of service connection for a chronic qualifying disability manifested by shortness of breath to include as due to an undiagnosed illness, are not met.  38 U.S.C.A. §§ 1110, 1131, 1117, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317 (2015).

2.  The criteria for the withdrawal of the Substantive Appeal as to the appeal of the claim of entitlement to a higher initial disability rating for the service-connected right shoulder tendonitis with right upper extremity radiculopathy, evaluated as 20 percent disabling prior to May 7, 2012 and as 40 percent disabling from May 7, 2012have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). 

3.  The reduction of the 20 percent rating assigned for the service-connected cervical spine disability was not proper and is void ab initio.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.105(e), 3.344, 4.71a, Diagnostic Code 5243 (2015).

4.  Prior to January 21, 2010, the criteria for an initial compensable disability rating for the service-connected right knee degenerative joint disease have not been met or more nearly approximated.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40. 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5003, 5020, 5257, 5260, 5261 (2015).

5.  From January 21, 2010, the criteria for an initial disability rating in excess of 10 percent for the service-connected right knee degenerative joint disease have not been met or more nearly approximated.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40. 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5003, 5020, 5257, 5260, 5261 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

1.  Entitlement to service connection for a qualifying chronic disability manifested by shortness of breath, to include, as a result of an undiagnosed illness.

Under applicable criteria, VA has certain notice and assistance obligations to claimants.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  VA has met its duty to notify for the claim.  See March 2008 letter.  Neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development.  See Shinseki v. Sanders, 129 U.S. 1696 (2009) (clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination).  Thus, adjudication of the claim at this time is warranted. 

The Board finds that all relevant evidence has been obtained with regard to the Veteran's claim being decided herein, and the duty to assist requirements have been satisfied.  Service treatment records have been obtained and are associated with the file.  VA treatment records are associated with the claims file.  Private treatment records are associated with the file.  Additionally, Social Security Administration records are associated with the claims file.    

The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claims.  In August 2009, May 2013, and January 2015, the Veteran indicated that he had no additional evidence or information to submit in support of his claim.   

VA provided an examination in September 2012 to obtain medical evidence as to the nature and likely etiology of the claimed undiagnosed illness.  The examination was performed by a medical professional based on a review of claims file, a solicitation of history and symptomatology from the Veteran, and a thorough examination of the Veteran.  The examination and medical opinion are adequate because the examiner issued a medical opinion based on review of claims file, solicitation of history and symptomatology from the Veteran, and an examination of the Veteran.  The VA examiner provided a medical opinion as to the nature and etiology of the claimed disability.  The Board finds that the Veteran has been afforded an adequate examination.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  

In Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that that the Veterans Law Judge (VLJ) who conducts a Board hearing fulfill duties to (1) fully explain the issue and (2) suggest the submission of evidence that may have been overlooked.  At the October 2015 hearing, the Veteran was assisted by a representative.  The undersigned VLJ fully explained the appealed issues and suggested the submission of evidence that may have been overlooked.  The VLJ explained that the evidence needed to substantiate the claim.  Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing.  The Board finds that, consistent with Bryant, the VLJ who conducted the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) , and that any error provided in notice during the Veteran's hearing constitutes harmless error.  As the duties to notify and assist the Veteran have been met, no further notice or assistance to him is required to fulfill VA's duty to assist in the development of the claim. 

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may be 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). 

As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996).

Under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317, presumptive service connection is warranted for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than not later than December 31, 2016.  See 38 C.F.R. § 3.317(a)(1)). 

For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A 1117(d) warrants a presumption of service-connection.

An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis.  In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.117, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service.  Gutierrez v. Principi, 19 Vet. App. at 8-9. 

A medically unexplained chronic multi symptom illnesses is one defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome, as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multi symptom illness.  A "medically unexplained chronic multi symptom illness" means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities.  Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained.  38 C.F.R. § 3.317(a)(2)(ii). 

Lay persons are competent to report objective signs of illness.  To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar.  See 38 C.F.R. § 3.317(a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006).

There are currently no diagnosed illnesses that have been determined by the Secretary to warrant a presumption of service connection under 38 C.F.R. § 3.317(a)(2)(C). 
"Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification.  38 C.F.R. § 3.317(a)(3).  Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multi symptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders.  38 C.F.R. § 3.317(b). 

For purposes of section 38 C.F.R. § 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic.  The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest.  38 C.F.R. § 3.317(a)(4).

The Veteran contends that he has a qualifying chronic disability manifested by shortness of breath that is due to his Persian Gulf War service.  The Veteran stated that he served in Kuwait from May 1991 to August 1991 and was exposed to burning oil fields.  He stated that he currently has shortness of breath and he first noticed it in 1992 when he was still on active duty.  See the Board Hearing Transcript dated in October 2015, pages 3 to 6.  

Service treatment records show that the Veteran had service in Kuwait from June 1991 to August 1991 and he was awarded the Southwest Asia Service Medal.  Thus, the Veteran is a "Persian Gulf veteran" and can avail himself of the provisions relating to qualifying chronic disabilities pursuant to 38 U.S.C.A. § 1117 and the implementing regulation at 38 C.F.R. § 3.317. 

Under the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 that relate to Persian Gulf veterans' qualifying chronic disability (including undiagnosed illness) presumptions, the pertinent questions are whether the Veteran has signs and symptoms that are manifestations of an undiagnosed illness that have manifested to a compensable degree (10 percent).  

In this Veteran's case, there is competent and credible evidence of objective indications of shortness of breath that have manifested to a degree of 10 percent or more by December 31, 2016.  The September 2012 VA Gulf War examination report indicates that the Veteran claimed service connection for shortness of breath due to an undiagnosed illness incurred in the Gulf War.  He reported the onset of shortness of breath about 12 to 13 years ago around 1998 or 1999.  He stated that initially he thought it was just exertion from working out or running.  The Veteran indicated that it comes and goes about 4-5 times a week and lasts about 5 minutes.  He stated that at times he could be lying in bed and get short of breath.  He denied wheezing, history of asthma, seasonal allergies, sinus problem, or tobacco use disorder.  He denied a history of chest trauma.   He endorsed a history of reflux disease of which he used to take omeprazole.  It was noted that the Veteran had a history of sleep apnea diagnosed in 2011 and reported an incident of sinus infection.  The Veteran stated that he mentioned shortness of breath to his VA primary care but no work-up was done.  He stated that he had chest pain in 2011 and underwent stress test which was normal.  It was noted that his current symptoms were occasional shortness of breath.  The precipitating factors were unknown and the alleviating factors were to settle down and control his movement. 

There is competent and credible evidence that the Veteran has a diagnosable chronic multi-symptom illness.  The September 2012 VA examiner indicated that the Veteran has claimed a disability pattern related to shortness of breath.  However, significantly, the VA examiner stated that the Veteran has a diagnosable chronic multi-symptom illness with a partially explained etiology.  The VA examiner noted that shortness of breath can be a symptom of anxiety disorder and attacks.  The VA examiner opined that it was less likely as not that the Veteran's shortness of breath is related to a specific exposure event experienced by the Veteran during service in Southwest Asia.  38 C.F.R. § 3.317(a) indicates that chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained.  

The Board finds that the weight of the competent and credible evidence establishes that the symptom of shortness of breath is attributed to a chronic multi-symptom illness with a partially explained etiology.  Thus service connection is not warranted under the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317.  The Board further notes that service connection is in effect for PTSD and a 50 percent rating is assigned from May 21, 2013 under Diagnostic Code 9411.  Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for a qualifying chronic disability manifested by symptoms of shortness of breath and the appeal is denied.  38 C.F.R. § 5107; 38 C.F.R. § 3.102.

2.  Withdrawn Appeal

The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary.  38 U.S.C.A. § 7104 (West 2014); 38 C.F.R. § 20.101 (2015).  Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed.  A Substantive Appeal may be withdrawn in writing or on the record at a hearing at any time before the Board promulgates a decision.  Withdrawal may be made by the Veteran or by his authorized representative.  38 C.F.R. § 20.204.

On October 20, 2015, prior to the promulgation of a decision by the Board, the Veteran noted in a written statement that he was withdrawing the appeal as to the claim of entitlement to an initial higher disability rating for the service-connected right shoulder tendonitis.  There is no allegation of error of fact or law remaining for appellate consideration at this time.  Accordingly, the appeal is dismissed. 

3.  Whether reduction of the disability rating for service-connected cervical spine herniated disc status post fusion was proper.

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  If a Veteran has an unlisted disability, it will be rated under a disease or injury closely related by functions affected, symptomatology, and anatomical location.  38 C.F.R. § 4.20; see 38 C.F.R. § 4.27 (providing specific means of listing diagnostic code for unlisted disease or injury).  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58(1994).  In Fenderson v. West, 12 Vet. App. 119(1999), the Court held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder.  Cf. Francisco v. Brown, 7 Vet. App. 55, 58(1994).  

In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period.  Id. at 126-127.  See also Hart v. Mansfield, 21 Vet. App. 505 (2007) (where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible).

It is the policy of VA to afford assigned evaluations the greatest degree of stability possible.  Special protections are afforded ratings which have stabilized, or which have been in place for extended periods of time.  38 C.F.R. §§ 3.344, 3.951.  The protections are not, however, absolute.  If improvement in a condition is shown, or error or fraud is evident, reduction of evaluation or even severance of service connection is possible.  Such revisions must be undertaken in accordance with specific due process protections.  38 C.F.R. § 3.105.

When a rating reduction is warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating decision proposing the reduction must be prepared, setting forth all of the material facts and reasons for the proposed reduction.  38 C.F.R. § 3.105(e).  The Veteran must then be notified of the contemplated action and the detailed reasons therefor, and given 60 days to present additional evidence showing that compensation should be continued at the present level.  Id.  The Veteran must be informed of the right to a predetermination hearing, if requested within 30 days.  38 C.F.R. § 3.105(i)(1).  If additional evidence is not received and a predetermination hearing is not requested, written notice of the final action, including the reasons for the decision and the supporting evidence, must be issued to the Veteran.  38 C.F.R. § 3.105(e), (i).

These are such important safeguards that the Court has held that where VA has reduced a Veteran's rating without observance of applicable law and regulation, such a rating is void ab initio.  Brown v. Brown, 5 Vet. App. 413, 422 (1993).  Thus, to remedy such cases, the decision must be reversed as unlawful.  Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992).

Under 38 C.F.R. § 3.344(c), when a disability rating has been in effect for less than five years, reexaminations disclosing improvement will warrant a rating reduction.

In a line of cases addressing staged ratings, the Court and U.S. Court of Appeals for the Federal Circuit (Federal Circuit) have held that, where ratings are changed in a single decision that does not effectuate an actual decrease in the compensation the Veteran receives each month, there is no reduction.  In O'Connell v. Nicolson, 21 Vet. App. 89 (2007) the Court examined a claim in which the Board, in assigning staged ratings for a disorder, simultaneously increased the base rating assigned by the RO for a period of time, and then decreased it.  The Court explained that there was no diminished expectation with which to be concerned, and no reduction in benefits to contest.  Id. at 93.  The Federal Circuit agreed with this reasoning in Reizenstein v. Shinseki, 583 F.3d 1331, 1337-38 (Fed. Cir. 2009), noting that benefits for past periods of disability are distributed in a lump sum that is paid on top of the Veteran's ongoing disability compensation (As would be the case here, where the Veteran was found retroactively entitled to a combined 100 percent rating until the effective date of the reduction.)  In Hamer v. Shinseki, 24 Vet. App. 58 (2010), the Court explained that the purpose behind 38 C.F.R. § 3.105(e) is to enable veterans to adjust to the diminished expectation.  Id. at 61-62.

In this case, the reduction of the evaluation of the service-connected cervical spine disability from 20 percent to 10 percent effective September 14, 2012 resulted in an overall reduction in the Veteran's combined disability rating from 60 percent to 50 percent and a reduction in compensation payments.  See the October 2012 rating decision and the November 2012 VETSNET Compensation and Pension Award.  As such, VA was required to comply with the due process procedures governing rating reductions.  38 C.F.R. § 3.105(e).  

Prior to the RO's reduction, the Veteran's service-connected cervical spine disability was evaluation was 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2015).  The Veteran had appealed the initial disability rating assigned to the cervical spine disability and disagreed with the reduction of the disability rating.  See the October 2015 Board Hearing Transcript, page 12.  

However, the RO failed to issue a rating decision proposing the reduction and did not provide proper notice of the 60 day period to provide evidence or the right to have a predetermination hearing.  38 C.F.R. § 3.105(e), (i)(1).  As the RO failed to comply with the due process requirements governing rating reductions, the reduction is void ab initio.  Greyzck v. West, 12 Vet. App. 288, 292 (1999).  Therefore, restoration of the 20 percent evaluation for the service-connected cervical spine disability is warranted from September 14, 2012 forward.  The appeal is granted to that extent.  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  To the extent that the action taken below is favorable to the Veteran, further discussion of VA's duties is not required.

4.  Higher Initial Rating for Right Knee Degenerative Joint Disease.  

Under applicable criteria, VA has certain notice and assistance obligations to claimants.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The Veteran's claim for a higher initial evaluation for the right knee disability is a downstream issue, which was initiated by the notice of disagreement.  The Court has held that, as in this case, once a notice of disagreement from a decision establishing service connection and assigning the rating and effective date has been filed, the notice requirements of 38 U.S.C.A. §§ 5104 and 7105 control as to the further communications with the appellant, including as to what "evidence [is] necessary to establish a more favorable decision with respect to downstream elements..."  Goodwin v. Peake, 22 Vet. App. 128, 137 (2008).  Therefore, there is no duty to provide additional notice.

The Board finds that all relevant evidence has been obtained with regard to the Veteran's claim, and the duty to assist requirements have been satisfied.  VA treatment records and private medical records identified by the Veteran are associated with the claims file and the virtual file.  The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claims.  

The Veteran underwent VA examinations in 2008 and 2012 to obtain medical evidence as to the nature and severity of the service-connected right knee disability.  At the hearing before the Board in October 2015, the Veteran stated that the knee symptoms were the same.  See the October 2015 Board Hearing Transcript, page 10.  The Board finds that the VA examinations are adequate for adjudication purposes.  The examinations were performed by medical professionals based on a review of claims file, a solicitation of history and symptomatology from the Veteran, and a thorough examination of the Veteran.  The examination reports are fully descriptive, and provide the information necessary to effectively evaluate the Veteran's service-connected right knee disability.  The Board finds that for these reasons, the Veteran has been afforded an adequate examination.  See Barr; supra.  The Board finds that the duties to notify and assist the Veteran have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. 

The Veteran was afforded a hearing before the Board in October 2015.  The undersigned VLJ fully explained the issue on appeal and suggested the submission of evidence that may have been overlooked.  The VLJ explained that the evidence needed to substantiate the claim.  Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing.  The Board therefore finds that, consistent with Bryant, the VLJ who conducted the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error provided in notice during the Veteran's hearing constitutes harmless error.  As the duties to notify and assist the Veteran have been met, no further notice or assistance to him is required to fulfill VA's duty to assist in the development of the claim. 

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities.  38 C.F.R. Part 4.  The Board determines the extent to which a veteran's service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10.  

Where there is a question as to which of two ratings should 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.  It is not expected that all cases will show all the findings specified.  However, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances.  38 C.F.R. § 4.21.  Under 38 C.F.R. § 4.20, evaluation by analogy is permitted where the rating schedule does not provide a specific diagnostic code to rate the disability.  38 C.F.R. § 4.20.

In deciding this appeal, VA has specifically considered whether separate ratings for different periods of time are warranted, assigning different ratings for different periods of the Veteran's appeal.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008).   

Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved.  When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate Diagnostic Codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined and not added, under Diagnostic Code 5003.  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.  Arthritis due to trauma is rated as degenerative arthritis.  38 C.F.R. § 4.71a, Diagnostic Code 5010.

Under Diagnostic Code 5257 (other impairment of the knee), a 10 percent disability evaluation requires slight recurrent subluxation or lateral instability.  A 20 percent evaluation requires moderate recurrent subluxation or lateral instability.  A 30 percent evaluation requires severe recurrent subluxation or lateral instability.  

Under Diagnostic Code 5258, dislocated semilunar cartilage, with frequent episodes of locking, pain, and effusion is rated at 20 percent, whereas Diagnostic Code 5259 provides that the removal of semilunar cartilage that remains symptomatic is rated at 10 percent.  Semilunar cartilage is synonymous with the meniscus.  

Diagnostic Codes 5260 and 5261 are utilized to rate limitation of flexion and extension of the knee joint.  38 C.F.R. § 4.71a.  Under Diagnostic Code 5260, limitation of flexion of the knee to 60 degrees warrants a noncompensable evaluation, limitation of flexion to 45 degrees warrants a 10 percent rating, limitation of flexion to 30 degrees warrants a 20 percent evaluation and limitation of flexion to 15 degrees warrants a 30 percent evaluation, the highest schedular evaluation under this diagnostic code.  38 C.F.R. § 4.71a.   

Under Diagnostic Code 5261, limitation of extension of the knee to 5 degrees warrants a noncompensable evaluation, limitation of extension of the knee to 10 degrees warrants a 10 percent evaluation, limitation of extension to 15 degrees warrants a 20 percent evaluation, and limitation of extension to 20 degrees warrants a 30 percent evaluation.  Limitation of extension of the knee to 30 degrees warrants a 40 percent evaluation and limitation of extension of the knee to 45 degrees warrants a 50 percent evaluation, the highest schedular evaluation under this diagnostic code.  38 C.F.R. § 4.71a.  

The Schedule provides that the normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion.  38 C.F.R. § 4.71, Plate II.  

VA's General Counsel has determined that a veteran who has arthritis and instability of the knee may receive separate ratings under Diagnostic Codes 5003 and 5257.  VAOPGCPREC 23-97.  When a knee disorder is already rated under Diagnostic Code 5257, the veteran must also have limitation of motion under Diagnostic Code 5260 or Diagnostic Code 5261 in order to obtain a separate rating for arthritis.  If the veteran does not at least meet the criteria for noncompensable rating under either of those codes, there is no additional disability for which a rating may be assigned.  

In VAOPGCPREC 9-98, the VA General Counsel further explained that, when a veteran has a knee disability evaluated under Diagnostic Code 5257, to warrant a separate rating for arthritis based on X-ray findings, the limitation of motion need not be compensable under Diagnostic Code 5260 or Diagnostic Code 5261; rather, such limited motion must at least meet the criteria for a zero-percent rating.  In the alternative, a compensable rating may be granted by virtue of 38 C.F.R. § 4.59.  

In VAOPGCPREC 9-2004, the VA General Counsel held that, when considering Diagnostic Codes 5260 and 5261 with 38 C.F.R. § 4.71, a veteran may receive a rating for limitation of flexion only, limitation of extension only, or separate ratings for limitations in both flexion and extension under Diagnostic Code 5260 (leg, limitation of flexion), and Diagnostic Code 5261 (leg, limitation of extension).  

Here, the Veteran filed a claim for service connection for a right knee disability in March 2008.  His claim was granted in a February 2009 rating decision and a noncompensable rating was assigned from April 4, 2008 under Diagnostic Code 5010 to the service-connected right knee degenerative joint disease.  The Veteran disagreed with the initial rating assigned, and this appeal ensued.  An October 2012 rating decision assigned a 10 percent rating to the right knee disability from January 21, 2010 based upon painful or limited motion of a major joint. 

Based upon a review of the evidence, the Board concludes that initial ratings in excess of zero percent prior to January 21, 2010 and in excess of 10 percent from January 21, 2010 for the service-connected right knee disability are not warranted.  The record does not demonstrate the requisite objective manifestations for a compensable disability evaluation for the right knee disability under Diagnostic Code 5260, limitation of flexion of the leg, prior to January 21, 2010.  The weight of the competent and credible evidence shows that prior to January 21, 2010, the service-connected right knee degenerative joint disease was manifested by pain, full range of motion, and normal gait, with no instability, fatigability, incoordination, or weakness of the knee joint, arthritis, or functional loss or impairment.

The October 2008 VA examination report indicates that the Veteran reported having a right knee condition since May 2005; he stated that the condition was due to injury incurred when running in June 2005 and the Veteran started to feel a burning pain in the right knee.  The Veteran reported having stiffness, giving way, and fatigability.  He did not have weakness, swelling, heat, redness, lack of endurance, locking, or dislocation.  He reported having pain in the right knee area which occurs 1 time per day and each time lasts for 1 hour.  The pain traveled to under the knee cap; the pain was aching and from 1 to 10 (10 being the worst pain) the pain level was a 7.  The pain was elicited by physical activity and prolong bending.  It was relieved by rest by Naproxen and by heating pad.  The Veteran reported having additional symptoms of pain constantly with prolonged sitting.  The treatment in the past has been physical therapy and shots.  He did not have a joint replacement.  The Veteran reported having functional impairment problems with squatting or bending at the knee and with prolonged sitting. 

Physical examination revealed normal gait.  Examination of the right knee showed no sign of edema, effusion, weakness, tenderness, redness, heat, subluxation, or guarding of movement.  There was no locking pain, genu recurvatum, or crepitus.  The range of motion of the right knee joint was flexion to 140 degrees and extension to zero degrees.  The right knee joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use.  The anterior and posterior cruciate ligaments stability test and the medial and lateral collateral ligaments stability test of the right knee was within normal limits.  X-ray examination of the right knee was normal.  The examiner indicated that there was no diagnosis of a right knee disability because there was no pathology to render a diagnosis.  The examiner indicated that the right knee had a normal exam with normal range of motion and x-ray.  An August 2009 VA spine examination report indicates that the Veteran had normal gait.     

A January 21, 2010 VA physical medicine rehabilitation consult indicates that the Veteran reported having right knee pain and he had pain mostly with activities or prolonged sitting and he was now having popping sensations.  He did not have buckling or giving way.  He reported that he may have a locking sensation but he was unsure.  He reported that the pain ranges from 2 to 5 during the day with stiffness and pain.  Examination revealed full range of motion of the right knee with pain with palpation at lateral joint line.  There was pain with palpation and pain with full flexion.  There was crepitus palpation with range of motion.  There was pain with right ACL testing but no laxity was noted.  Right knee valgus/varus were okay.  Gait was normal.  The assessment was right knee pain possible intraarticular source.  MRI of the right knee revealed no evidence of meniscal abnormality.  

The RO assigned a 10 percent initial rating from January 21, 2010 under Diagnostic Code 5260 based upon the findings of objective painful motion and pain on use.  See the October 2012 rating decision.  

The record does not demonstrate the requisite objective manifestations for a compensable disability evaluation for the right knee disability under Diagnostic Code 5003 or Diagnostic Code 5260 prior to January 21, 2010.  The weight of the competent and credible evidence shows that prior to January 21, 2010, the service-connected right knee degenerative joint disease has been manifested by pain, full range of motion, and normal gait, with no instability, fatigability, incoordination, or weakness of the knee joint, arthritis, or functional loss or impairment.  There is no evidence of x-ray evidence of arthritis of the right knee during the time period in question.  There is no evidence of limitation of flexion of the right knee during that time period. 

The Board finds that a disability evaluation in excess of zero percent under Diagnostic Code 5261, pertaining to limitation of extension of the knee, is not warranted prior to January 21, 2010.  The evidence shows that there is full extension of the right knee.  See the October 2008 VA examination report.  

The Board has considered the degree of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination, lack of endurance or pain on movement of a joint under 38 C.F.R. § 4.45 in assessing the actual limitations of motion and function, but finds that, even with such considerations, a compensable disability rating is not demonstrated for either knee extension or knee flexion.  See DeLuca, supra.  As noted, for the time period in question, there is no evidence of limitation of motion of the right knee and VA examination in October 2008 showed full range of motion.  The Veteran reported having pain in the right knee but objective evidence shows full range of motion and a normal gait.  There was no evidence of any functional loss or limitation of motion due to pain, or evidence of swelling, effusion, tenderness, muscle spasm, joint laxity, or muscle atrophy.  The objective evidence does not demonstrate compensable functional loss or impairment of the right knee, including as due to pain for the time period in question.  Based on the evidence of record, there is no basis for the assignment of additional disability due to pain, weakness, fatigability, or incoordination, and the Board finds that the assignment of additional disability pursuant to 38 C.F.R. §§ 4.40, 4.45, 4.59 is not warranted.  

The Board had considered the other diagnostic codes pertinent to rating a knee disability.  Ankylosis of the right knee is not shown; Diagnostic Code 5256 is not for application.  Moreover, there is no current finding reflective of a dislocated cartilage manifested by episodes of pain, locking, or effusion; thus, a higher rating under Diagnostic Code 5258 is also not warranted.

For these reasons, the Board finds that the preponderance of the evidence is against the assignment of an initial rating in excess of zero percent for the right knee disability prior to January 21, 2010.  

The record does not demonstrate the requisite manifestations for a rating in excess of 10 percent for the service-connected right knee disability from January 21, 2010.  As noted, the RO assigned a 10 percent initial rating from January 21, 2010 under Diagnostic Code 5260 based upon the findings of objective painful motion and pain on use upon physical examination on January 21, 2010.  See the October 2012 rating decision.  

As noted, the January 21, 2010 VA physical medicine rehabilitation consult indicates that the Veteran reported having right knee pain and he had pain mostly with activities or prolonged sitting.  He reported that the pain ranges from 2 to 5 during the day with stiffness and pain.  Examination revealed full knee range of motion with pain with palpation at lateral joint line.  There was pain with palpation and pain with full flexion.  There was crepitus palpation with range of motion.  There was pain with right ACL testing but no laxity noted.  Gait was normal.  The assessment was right knee pain possible intraarticular source.  MRI of the right knee revealed no evidence of meniscal abnormality.  

March 2013 VA treatment records indicate that the Veteran underwent a physical therapy consult for right knee pain.  He was instructed in right knee exercises.  In October 2013, the Veteran was evaluated by VA prosthetic lab for knee instability. 

An August 2014 VA new patient evaluation record indicates that the Veteran reported having chronic bilateral knee pain, since active duty in the military. He reported that it was worsening and he took pain medications for severe pain.  He explained that he took the pain medications once every two to three months and that the pain score that day was 2 out of 10.  He reported having muscle cramps, stiffness, and joint pain.  Gait was steady on exam.  Range of motion was intact. 

A September 2012 VA examination report shows a diagnosis of right knee patellofemoral degenerative joint disease.  The Veteran reported having a burning pain in the knee with squatting and bending.  He walked for exercise.  The Veteran denied a history of right knee fracture, dislocation, subluxation, or surgery.  His current symptoms included achy pain in the morning and occasional burning-type pain with bending and stiffness.  He denied swelling.  Aggravating factors were squatting, bending, and prolonged standing over 15 to 20 minutes.  Alleviating factors were a brace and ibuprofen.  The Veteran did not have flare-up  that impacted the function of the leg.    

Range of motion of the right knee was zero degrees of extension to 130 degrees of flexion with objective evidence of painful motion beginning at 100 degrees.  There was no evidence of objective pain on motion on extension.  The Veteran was able to perform repetitive use testing with 3 repetitions.  Right knee range of motion post test was to 140 degrees on flexion.  Extension was to zero degrees.  There was no additional limitation in range of motion of the knee and lower leg following repetitive-use testing.  There was functional loss and/or functional impairment of the right knee and lower leg manifested by pain on movement.  There was tenderness or pain to palpation for joint line or soft tissues of either knee.  Muscle strength in the right lower extremity was 5/5.  Joint stability tests (Lachman test, Posterior Drawer test) and medial-lateral instability were normal.  There was no evidence or history of recurrent patellar subluxation or dislocation.  The Veteran did not have a meniscal condition and he did not have semilunar cartilage.  He did not have a total knee replacement.  It was noted that the Veteran used a brace on occasion.  There was effective function remaining in the right knee.  

The record does not demonstrate the requisite objective manifestations for a disability evaluation in excess of 10 percent for the right knee disability under Diagnostic Code 5260, limitation of flexion of the leg.  In order for a disability evaluation in excess of 10 percent to be assigned under Diagnostic Code 5260, flexion of the knee must be limited to 30 degrees or less.  38 C.F.R. § 4.71a, Diagnostic Code 5260.  Here, the Board finds no basis for assigning a rating in excess of 10 percent under Diagnostic Code 5260.  The weight of the evidence shows that the Veteran has demonstrated flexion of the right knee well beyond 30 degrees on every occasion range of motion has been tested during the course of his appeal.  See the VA examination reports dated in October 2008 and September 2012.  The September 2012 VA examination report indicates that range of motion of the right knee was zero degrees of extension to 130 degrees of flexion with objective evidence of painful motion beginning at 100 degrees.  There was no evidence of objective pain on motion on extension.  The Veteran was able to perform repetitive use testing with 3 repetitions.  Right knee range of motion post test was to 140 degrees on flexion.  

Under Diagnostic Code 5261, a 10 percent or higher disability evaluation is warranted for extension limited to 10 degrees or more.  The evidence shows that during the course of the appeal, there was full extension of the right knee.  Thus, on this record, a higher disability evaluation under Diagnostic Code 5261 is not warranted.  See 38 C.F.R. § 4.71a , Diagnostic Code 5261. 

The Board has considered whether a higher rating may be assigned on the basis of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination, lack of endurance or pain on movement of a joint under 38 C.F.R. § 4.45.  See DeLuca, supra.  The weight of the evidence shows no additional limitation of flexion or extension of the right knee due to pain or other symptoms.  The VA examination reports indicate that the Veteran reported having daily pain in the right knee.  The weight of the competent and credible evidence shows that the Veteran has noncompensable limitation of flexion of the right knee and functional loss due to pain on movement.  There is x-ray evidence of mild arthritis.  Flexion was normal after repetitive motion.  

The Board finds that the Veteran's current 10 percent disability rating for the right knee disability takes into consideration and incorporates any additional functional loss or impairment due to pain, crepitus, tenderness, stiffness, and intermittent flare-ups.  The right knee disability has not been shown to produce additional impairment of extension or flexion due to pain or functional loss that would warrant a rating higher than 10 percent.  See DeLuca; supra.  As noted, the Veteran has full extension in the right knee and the flexion of the knee is well beyond 30 degrees when considering pain and functional loss.  The current functional impairment of the right knee and the symptoms of pain are encompassed in the current 10 percent rating under Diagnostic Codes 5260-5010.
Based on the objective medical evidence of record, there is no basis for the assignment of additional disability due to pain, weakness, fatigability, weakness, or incoordination, and the Board finds that the assignment of additional disability pursuant to 38 C.F.R. §§ 4.40 and 4.45 is not warranted.  The Veteran is already receiving the minimum compensable rating for pain pursuant to 38 C.F.R. § 4.59.  

The Board has also considered the other rating criteria for knee disabilities.  The Board finds that no other diagnostic code provides for a higher rating.  There is no evidence of ankylosis of the right knee; thus Diagnostic Code 5256 is not for application.  There are no findings of moderate or severe instability or recurrent subluxation in the right knee.  Thus, a rating in excess of 10 percent is not warranted under Diagnostic Code 5257. 

The Board also finds that a higher rating is not warranted under either Diagnostic Code 5258 or 5259.  Diagnostic Codes 5258 and 5259 address meniscus injuries and symptoms.  The weight of the medical evidence indicates that the Veteran did not have a current meniscus condition.  See the September 2012 VA examination report and the January 2010 VA consult record.  As such, Diagnostic Code 5259 is not for application.

The evidence also fails to show that Diagnostic Code 5258 is for application.  There is lay evidence that the Veteran believed he may have a locking sensation in his knee.  However, the medical evidence does not establish objective findings of locking or effusion of the knee.  Locking was not detected on examination.  See the September 2012 VA examination report. 

In summary, for these reasons, the Board concludes that an initial disability evaluation in excess of 10 percent for the service-connected right knee disability is not warranted at any time from January 21, 2010, and the claim for a higher initial rating must be denied. 

The Board has considered VAOPGCPREC 23-97 and VAOPGCPREC 9-98.  The Board finds that a separate 10 percent rating is not warranted for the right knee under Diagnostic Code 5257 because the weight of the evidence fails to establish instability or subluxation of the right knee in additional to the findings of arthritis.  The VA examinations in 2008 and 2012 did not detect instability or subluxation of the knee.  There are no objective findings of instability or subluxation in the right knee at any time during the entire appeal period.  A separate compensable rating for limitation of extension of the right knee pursuant to VAOPGCPREC 9-2004 is not for application at any time during the appeal period because there has been full extension of the right knee for the entire appeal period. 

In conclusion, the Board finds that the assignment of an initial compensable disability rating prior to January 21, 2010 and a rating in excess of 10 percent from January 21, 2010 are not warranted for the right knee disability, and the claim for higher initial ratings is denied.  The Board also concludes that a separate 10 percent rating under Diagnostic Code 5257 or under Diagnostic Code 5261 are not warranted at any time during the appeal period.  The preponderance of the evidence is against the Veteran's claims for higher initial evaluations for the right knee disability and the claim is denied.

The Board has also considered whether referral for an extraschedular rating is warranted for the service-connected right knee disability.  See 38 C.F.R. § 3.321 and Thun v. Peake, 22 Vet. App. 111 (2008).  Here the schedular rating criteria used to rate the Veteran's right knee disability reasonably describe and assess the Veteran's disability level and symptomatology. 

As discussed, the Veteran's symptoms and functional limitations due to the right knee disability are contemplated by the rating schedule, and the assigned schedular evaluations, therefore, are adequate.  The service-connected right knee disability is manifested by arthritis, noncompensable limitation of motion, and pain.  The level of severity of the Veteran's right knee disability is adequately contemplated by the applicable diagnostic criteria.  The diagnostic codes pertinent to rating a knee disability rate the knee disability based upon symptoms of limitation of motion, instability or subluxation, ankylosis, and dislocation or removal of knee cartilage.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5256 to 5261.  Separate ratings are possible for knee symptoms such as instability in addition to a rating for limitation of motion.  The rating criteria reasonably describe his disability level and symptomatology and provide for higher ratings for additional or more severe symptoms than currently shown by the evidence.  In view of the adequacy of the disability rating assigned under the applicable diagnostic criteria, consideration of the second step under Thun is not for application in this case.  Accordingly, the claim will not be referred for extraschedular consideration.

According to Johnson  v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b)] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations."  Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities. 

In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate.  In this case, there is neither allegation nor indication 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.


ORDER

Entitlement to service connection for a qualifying chronic disability manifested by shortness of breath, to include as a result of an undiagnosed illness, is denied. 

The appeal as to the claim of entitlement to a higher initial disability rating for right shoulder tendonitis with right upper extremity radiculopathy, evaluated as 20 percent disabling prior to May 7, 2012 and as 40 percent disabling from May 7, 2012, is dismissed.  

The reduction to 10 percent being void, restoration of a 20 percent rating for service-connected cervical spine herniated disc status post fusion effective September 14, 2012 is granted, subject to the statutes and regulations governing the payment of monetary benefits.

Entitlement to a compensable disability rating prior to January 21, 2010 and a disability rating in excess of 10 percent from January 21, 2010 for right knee degenerative joint disease is denied.   


REMAND

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) (West 2014). 

The Veteran was afforded a VA examination of the service-connected cervical spine disability in September 2012.  However at the Board Hearing in October 2015, he indicated that his service-connected cervical spine disability had worsened since the last VA examination and that he has undergone neck surgery.  He submitted medical evidence which indicates that he underwent an anterior cervical diskectomy and fusion at C5-C6 and C6-C7.  As the evidence reflects a possible worsening, a new examination is needed to determine the current level of severity of this disability.  Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994).

The AOJ should also contact the Veteran by letter and request that he provide sufficient information, and if necessary authorization, to enable the AOJ to obtain the pertinent VA and non-VA treatment records showing treatment of the service-connected cervical spine disability.  The AOJ should make an attempt to obtain any treatment records identified by the Veteran. 
Accordingly, the case is REMANDED for the following action:

1.  Contact the Veteran and ask him to identify all VA and non-VA medical treatment rendered for the service-connected cervical spine disability.  If the Veteran adequately identifies the health care providers and provides the completed authorizations, request legible copies of all pertinent clinical records that have not been previously obtained, and incorporate them into the Veteran's claims file. 

2.  Schedule the Veteran for a VA examination to determine the current severity of the service-connected cervical spine disability.  In conjunction with the examination, the examiner should review the Veteran's claims folder and should acknowledge such review in the evaluation report.  

The examiner should discuss the following:

(a)  the range of motion of the Veteran's cervical spine in degrees including forward flexion, extension, left and right lateral flexion, and left and right rotation.  

(b)  the presence (including degree) or absence of painful motion, weakened movement, excess fatigability, or incoordination.  These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any painful motion, weakened movement, excess fatigability, or incoordination. 

(c) any other symptom or manifest, including any spasm, severe guarding, abnormal gait, abnormal spine contour, or ankylosis.  
(d) whether the degenerative disc disease of the cervical spine has required periods of doctor prescribed bed rest.  

The examiner should set forth the complete rationale underlying any conclusions drawn or opinions expressed, to include, as appropriate, citation to specific evidence in the record, in a legible report.

3.  Thereafter, readjudicate the Veteran's claim remaining on appeal-entitlement to an initial rating greater than 20 percent for the service-connected cervical spine herniated disc status post fusion.  If the benefit sought on appeal remains denied, the Veteran and his representative should be issued a supplemental statement of the case, and given an opportunity to respond before the case is returned to the Board.


No action is required of the Veteran until he is notified by VA.  However, he is advised of his obligation to cooperate in ensuring that the duty to assist is satisfied.  Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood v. Derwinski, 1 Vet. App. 190 (1991).  His failure to help procure treatment records, or to report for a scheduled VA examination, may impact the decision made.  38 C.F.R. § 3.655 (2015).  He is advised that he has the right to submit additional evidence and argument, whether himself or through his representative, with respect to this matter.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  It must be afforded prompt treatment.  The law indeed requires that all remands by the Board or the Court be handled in an expeditious manner.  38 U.S.C.A. §§ 5109B, 7112 (West 2014).  



______________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs