Citation Nr: 1608002 Decision Date: 03/01/16 Archive Date: 03/09/16 DOCKET NO. 04-22 407 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence exists to reopen the claim of service connection for sinusitis. 2. Entitlement to service connection for sinusitis. 3. Entitlement to an initial rating in excess of 10 percent for a right knee condition to include arthritis, valgus deformity and a semilunar cartilage condition. 4. Entitlement to an initial rating in excess of 10 percent for right knee instability. 5. Entitlement to a rating in excess of 10 percent for residuals of a left paraspinal schwannoma (other than muscle cramping). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. VanValkenburg, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1975 to October 1995. These matters come before the Board of Veterans' Appeals (Board) on appeal from the March 2005 (residuals of left paraspinal schwannoma, sinusitis) and May 2008 (right knee) rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Board notes that the March 2005 RO rating decision, in part, denied entitlement to service connection for otitis media; granted service connection for abdominal muscle spasm and cramping (secondary to residuals of excision of left paraspinal schwannoma) evaluated as 10 percent disabling, effective December 1, 2003; and failed to reopen the Veteran's claim of entitlement to service connection for sinusitis. The Veteran expressed disagreement with these issues and a December 2008 statement of the case (SOC) was issued. The Veteran specifically noted on his February 2009 VA Form 9 (accepted by the RO as timely), that he was only appealing denial of service connection for sinusitis and the evaluation of the initial grant of service connection for abdominal muscle spasm and cramping. Thus, the claim for service connection for otitis media is not currently before the Board. The June 2009 Board decision and remand, in part, granted an initial increased rating of 30 percent, but no more, for abdominal muscle spasm and cramping (secondary to residuals of excision of left paraspinal schwannoma) and remanded the issues of entitlement to a rating in excess of 10 percent for residuals of the excision of paraspinal schwannoma (other than muscle cramping) and claim to reopen entitlement to service connection for sinusitis. In taking jurisdiction of the additional non-muscular issues of the paraspinal schwannoma, the Board highlighted the Veteran expressed a disagreement with both the muscle and non-muscle aspects of the paraspinal schwannoma in his June 2005 notice of disagreement. As such, the issues of entitlement a rating in excess of 10 percent for residuals of excision of a paraspinal schwannoma (other than muscle cramping) and whether new and material evidence had been submitted to reopen a claim of entitlement to service connection for sinusitis have returned to the Board for adjudication. The requested development as to the claims adjudicated below has been completed to the extent possible, and no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The issue of entitlement to service connection for residuals of left paraspinal schwannoma (other than muscle cramping) is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. The evidence received since the last final denial of service connection for sinusitis in the March 1996 rating decision, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim; and raises a reasonable possibility of substantiating the claim of entitlement to service connection. 2. The Veteran does not have a current diagnosis of a sinusitis disability, nor has he at any time during the claim and appeal period. 3. The Veteran's right knee condition to include arthritis and valgus deformity has been manifested by pain and limitation of flexion no worse than 60 degrees and limitation of extension to 0 degrees; there is no objective evidence of laxity or recurrent subluxation, ankylosis, genu recurvatum or tibia and fibula impairment. 4. The Veteran's right knee instability is no more than slight. 5. The Veteran's right knee meniscus condition has manifested by episodes of frequent locking, pain and effusion CONCLUSIONS OF LAW 1. Evidence received since the March 1996 rating decision in relation to the Veteran's claim for entitlement to service connection for a sinusitis is new and material, and, therefore, the claim is reopened. 38 U.S.C.A. § 5108 (West 2015); 38 C.F.R. § 3.156 (2015). 2. The criteria for service connection for a sinusitis disability have not been met. 38 U.S.C.A. §§1131, 5107 (West 2015); 38 C.F.R. §§ 3.303 (2015). 3. The criteria for an initial evaluation in excess of 20 percent for a right knee condition with arthritis, valgus deformity, and a meniscus condition, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2015); 38 C.F.R. §§ 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5258, 5260, 5261, 5010-5003 (2015). 4. The criteria for an initial evaluation in excess of 10 percent for right knee instability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2015); 38 C.F.R. §§ 4.14, 4.40, 4.45, 4.71a, Diagnostic Code, 5257 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Assist and Notify VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.326. The Veteran has disagreed with the initial disability rating assigned for his right knee, the Board notes that once an underlying claim is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). With regard to the Veteran's sinusitis claim, letters dated March 2004 and February 2011 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Finally, the Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claims. Service treatment records, post-service treatment records, and lay statements have been associated with the record. The record does not indicate, nor has the Veteran asserted he is in receipt of Social Security Administration (SSA) disability. Additionally, the Veteran was afforded VA sinus and knee examination most recently in May 2012 and August 2013, respectively. The Board has carefully reviewed the VA examinations of record and finds that the examinations, along with the other evidence of record, are adequate for rating purposes. Thus, with respect to the Veteran's claim, there is no additional evidence which needs to be obtained. As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. Claim to reopen Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court recently interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). The Veteran's claim of entitlement of service connection for sinusitis was originally denied a March 1996 RO rating decision. The denial was based on a lack of a current diagnosis of sinusitis. The Veteran did not express disagreement with this decision and the decision became final. The current appeal arises from the Veteran's December 1, 2003 claim to reopen which was denied in the March 2005 RO rating decision. The pertinent evidence submitted since the March 1996 RO rating decision includes lay statements from the Veteran's wife in a correspondence dated February 28, 2011. The Veteran's wife observed that the Veteran had frequent "bouts of sinusitis" while in service which continued since, at least weekly. This included a stuffy or runny nose, clear, thin discharge from the nose or thick yellow or green discharge from the nose, which was at times tinged with blood. He had a history of sneezing, postnasal drip from the nose and itchy eyes and nose. To treat irritated sinus symptoms, the Veteran used water mixed with sea salt as a rise. She reported that VA issued medications helped but had not cured his sinus problems. The lay statements summited since the prior denial suggest the Veteran may have a current disability and a positive relationship between the Veteran's sinusitis and service. The lay statements are new in that are not previously of record. Furthermore, they are material as it suggests the existence of possible sinusitis and a link between the Veteran's sinusitis and service. Consequently, the claim of entitlement to service connection for sinusitis is reopened. Service connection for sinusitis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases may be presumed to have incurred in or aggravated by service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. To prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition, a disability that is proximately due to or the result of a service-connected injury or disease shall be service connected. 38 C.F.R. § 3.310. When service connection is thus established for a secondary condition, the secondary condition shall be considered part of the original condition. Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists, and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id. The Veteran asserts entitlement to service connection for a sinusitis condition. By way of history, service treatment records (STRs) reflect that in January 21, 1984 the Veteran was treated for sinusitis. The Veteran reported sinusitis on his July 1995 report of medical history but in the associated VA exit examination the Veteran had a normal clinical evaluation of his sinuses. In a January 1996 general VA examination, the Veteran's sinuses were indicated as normal. In a July 2008 VA nose, sinus, larynx and pharynx examination, the Veteran denied any sinus infection. A review of medical records did not show any treatment for sinusitis since service. The diagnosis stated there was "no current evidence of sinusitis." It was noted that sinusitis condition in-service had resolved and the Veteran did not have any evidence of sinusitis "at present." The rationale was based on treatment, clinical expertise and the examination showed that the Veteran had not received any sinusitis treatment since getting out of service. The Veteran was diagnosed with allergic rhinitis at this time with a positive nexus opinion provided. The Board notes the Veteran was granted service connection for a separate allergic rhinitis condition in an August 2008 RO rating decision. In a May 2012 VA sinusitis, rhinitis and other conditions of the nose, throat larynx and pharynx examination, the Veteran was diagnosed with rhinitis, date of diagnosis 1999 and sinusitis, resolved, date of diagnosis 1990. The Veteran reported he was treated in the military for sinus problems and currently used medications to clear nasal passages. It was explained that the Veteran had chronic rhinitis caused by inflammation and/or irritation of the nasal mucous membranes. Mucous membranes both swell and produce mucous when irritated or inflamed which produces a sensation of congestion. They can be irritated or inflamed producing a sensation of congestion. They can be irritated or inflamed mechanically by drying or exposure to environmental inhalants and could develop an acute or chronic allergic response to environmental allergens, also producing membrane irritation or inflammation with swelling and congestion. The Veteran used a CPAP/BIPAP nightly which could be a chronic nasal irritant. The Veteran's upper respiratory infection treated while in military was an acute episode that resolved with treatment. Sinusitis was only a symptom of that acute episode. Other symptoms could have been cough, sore throat, and/or headaches. The Veteran has submitted multiple statements supporting the existence of a sinus condition. For instance, he reported he used a prescribed nasal rinse to clear nasal passages and that sinus medication had been changed. See Veteran's statement 21-4128 received May 9, 2013. The Veteran's wife, as noted above, observed the Veteran have frequent "bouts of sinusitis" while in service which continued since, at least weekly. This included a stuff or runny nose, clear, thin discharge from the nose or thick yellow or green discharge from the nose, and at times tinged with blood. He had a history of sneezing, postnasal drip from the nose and itchy eyes and nose. To treat irritated sinus symptoms, the Veteran used water mixed with sea salt as a rise. She reported that VA issued medications helped but had not cured his sinus problems. The Board observes that the Veteran does not have a current sinusitis disability and is not eligible for service connection for a sinusitis condition. See Brammer v. Derwinski, supra. The Board has reviewed VA and private treatment records and they are absent a diagnosis of a sinusitis condition, despite complaints of sinus congestion. See e.g., March 19, 2013 VA treatment record of sinus congestion. The Veteran and his wife, while competent to report the Veteran's symptoms, are not competent to diagnose such a sinusitis condition or attribute his symptoms to sinusitis, as this requires specialized knowledge and training. The accuracy of the Veteran's reports of symptoms is better assessed by a medical professional, here the VA examiners. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Under applicable regulations, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995). Thus, there is no current disability manifested by sinusitis. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability"); see also Sanchez- Benitez v. West, 13 Vet. App. 282, 285 (1999) (recognizing that a symptom of pain is not a disability). It is unnecessary to proceed by considering whether the other requirements for establishing entitlement to this benefit are met since doing so would not alter this determination. Based on the preponderance of the evidence, the Veteran does not have a current liver disability, service connection is not warranted, and the benefit of the doubt is inapplicable. 38 U.S.C.A. § 1110, 1111, 5107(b); Gilbert v. Derwinski, supra. Increased rating right knee The General Rating Formula for Diseases and Injuries of the knee are governed under 38 C.F.R. 4.71a. The Veteran's right knee disability is currently rated as 10 percent disabling under Diagnostic Codes (DCs) 5260-5010 for a right knee condition to include arthritis with valgus deformity and 10 percent for right knee instability under DC 5257. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. DC 5620 pertains to limitation of flexion of the leg, DC 5010 pertains to arthritis and DC 5257 pertains to instability. Under DC 5010, traumatic arthritis is rated under the same criteria as DC 5003, which addresses degenerative arthritis. Under DC 5003, arthritis is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved. When there is some limitation of motion, but which is noncompensable under a limitation-of-motion code, a 10 percent rating may be assigned with involvement of a major joint. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Under DC 5260, limitation of flexion of the knee warrants a noncompensable rating if extension is limited to sixty degrees; a 10 percent rating is extension is limited to 45 degrees; and a 20 percent rating is flexion is limited to 30 degrees. Under DC 5261, limitation of extension of the knee warrants a noncompensable rating if extension is limited to five degrees; a 10 percent rating is extension is limited to 10 degrees; and a 20 percent rating is flexion is limited to 15 degrees. Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. In addition, separate ratings may be assigned for compensable limitation of both flexion and extension. See VAOPGCPREC09-04 (separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint). Under DC 5257, knee impairment with recurrent subluxation or lateral instability warrants a 10 percent evaluation if it is slight; a 20 percent evaluation if it is moderate; or a 30 percent evaluation if it is severe. The Board observes that the words "slight," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Under DC 5258, dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint warrants a 20 percent evaluation. Under DC 5259, the removal of semilunar cartilage warrants a 10 percent rating if it is symptomatic. VA's General Counsel has provided guidance concerning increased rating claims for knee disabilities. In VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997), it was held that a veteran who has arthritis and instability of the knee might be rated separately under DCs 5003 and 5257, provided that any separate rating must be based upon additional disability. When a knee disorder is already rated under DC 5257, the veteran must also have limitation of motion under DC 5260 or DC 5261 in order to obtain a separate rating for arthritis. In VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998), the VA General Counsel clarified that when a veteran has a knee disability evaluated under DC 5257, to warrant a separate rating for arthritis based on X-ray findings, the limitation of motion need not be compensable under DC 5260 or DC 5261; rather, such limited motion must at least meet the criteria for a zero-percent rating. More recently, the VA General Counsel held that separate ratings could be provided for limitation of knee extension and flexion under DCs 5260 and 5261. VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). Factual background The Veteran was granted service connection for his right knee in May 2008, evaluated as 10 percent disabling for moderate to servare arthritis with valgus deformity and 10 percent for instability, effective January 29, 2007, discussed in further detail below. The appeal arises from disagreement with this decision. By way of history, the Veteran had right knee arthroscopic surgery in December 2006 by a private orthopedist, reported as a partial medial meniscectomy/partial lateral meniscectomy/abrasion arthroplasty of the patella and trochlea/grade 4 chondromalacia by a VA staff physician in a June 26, 2012 VA treatment record. A January 3, 2007 letter from the Veteran's private physician notes the Veteran was doing well status post arthroscopy and his sutures were taken out. They let him do range of motion and strengthening of the knee. VA treatment records in 2007 regarding the Veteran's weight management program discuss that the Veteran continued to exercise. For example, a July 3, 2007 record reflects that the Veteran reported he was able to walk approximately 4 miles, 3 times per week. He didn't feel he could do much more as repetitive motion aggravated his knee. An April 17, 2007 record reflects that the Veteran's exercise was limited secondary to right knee surgery. However, he did walking two days per week and biking on the weekend. In an undated statement from the Veteran on a VA Form 21-4138 the Veteran attached a VA imaging study of his right knee dated February 22, 2008. The Veteran reported his knee swelled up consistently with use and that he had very painful motion. The impression of the imaging study was significant degenerative changes on the lateral aspect of the right knee. The Veteran was afforded a VA examination in February 2008. The Veteran endorsed pain, weakness, swelling, fatigability and lack of endurance with instability or giving way. There was no stiffness, heat, redness or locking. The Veteran was treated with surgery, physical therapy and medication. The Veteran reported there were no flare-ups because the knee hurt all the time. Precipitating factors were activity and alleviating factors were rest. There was no need for assistive devices. There were no episodes of dislocation or recurrent subluxation. There was no history of inflammatory arthritis. The joint problem did not affect the Veteran's usual occupation at a desk job or daily activities. There was no prothethesis. Upon physical examination, range of motion of the right knee, in degrees, resulted in forward flexion to 100, with pain beginning at 60. There was no change after repetitive motion. The Veteran had a normal gait and posture. There was no ankylosis. There was pain with motion, weakness, lack of endurance and instability. There was no fatigue, incoordination, or additional limitation following repetitive use. Lachman's test was positive and McMurray's tests were negative with a note that he had meniscus surgery. There were functional limitations on some distance for walking. There was no evidence of abnormal weight bearing. There was no effusion, redness, heat or guarding. X-rays showed a narrowing of the lateral compartment and the patellofemoral joint to the right knee. He had valgus to the right knee deformity with standing. The diagnosis was moderate to severe arthritis to the right knee with valgus deformity when weight bearing. Degrees lost due to pain were 40 with no degrees lost due to fatigue, lack of endurance or incoordination. A private treatment record from May 20, 2009 reflects that the right knee showed tenderness with palpation of the medial and lateral joint line spaces, crepitus noted with palpation over the patellar region. The impression was right knee arthritis. The private records reflect that the Veteran had three injections into his right knee to help with pain from May through August 2009. He had not seen any change in his knee symptoms at the third injection. VA treatment records from 2009 through 2010 reflect ongoing right knee pain, knee arthralgia, internal derangement of the right knee and medial meniscus. A March 9, 2009 right knee x-ray indicated stable mild degenerative changes of the knee as compared to a February 22, 2008 x-ray. In a March 17, 2009 VA treatment record the Veteran complained of right knee pain. The Veteran had a constant knee pain reported as a level 5-6 out of 10 which was worse with weightbearing and strenuous activity and also aggravated the knee. When aggravated, pain would radiate from the knee to ankle. The Veteran had joint swelling immediately above the right knee and medially. The kneecap did not seem out of place. He was able to straighten the knee and the knee did not suddenly "lock up," there was no intermittent knee locking and the knee joint did not feel unstable or out of place. There was effusion but not induration, edema, warmth, deformity or patellofemoral lateral tracking. The lateral aspect of the knee was tender on palpation and tender at the joint line. McMurray test was positive. Tenderness was observed on ambulation. The assessment was internal derangement of the knee medial meniscus. An April 3, 2009 MRI noted that the findings were consistent with an acute or subacute fracture of the fibular head. They were to correlate with any clinical history of recent trauma or repetitive injury. There was moderate tricompartmental osteoarthritis present. There was progression of the arthritic changes since comparison study of October 2006. An April 16, 2009 VA imaging study found findings consistent with an acute or subacute fracture of the fibular head and moderate tricompartmental osteoarthritis present. There was a progression of arthritic changes since comparison study of October 2006. The Veteran was afforded a VA knee examination in April 2010. The problem being detailed was arthritis, valgus deformity and instability of the right knee. The course since onset was progressively worse and current treatment involved medication with a fair response. The Veteran had surgery in December 2006 for a meniscus repair in the right knee. There was no history of trauma to the joints or neoplasm. The dominant hand was right. The summary of joint symptoms included giving way, instability, stiffness, weakness, swelling and tenderness. The condition affected the motion of the joint. There was no deformity, incoordination, and decreased speed of joint motion, episodes of dislocation or subluxation, locking episodes or effusions. No flare-ups of joint disease were reported. There were no constitutional symptoms or incapacitating episodes of arthritis. The Veteran was unable to stand for more than a few minutes and was able to walk 1/4 of a mile. He used a brace always. Upon physical examination, the Veteran's weight bearing joint was affected with an antalgic gait. There was other evidence of abnormal weight bearing but no callus formation or skin breakdown. There was an abnormal shoe wear pattern and there was increased wear on the outside edge of heel bilaterally. The summary of knee findings included crepitus, edema, tenderness, weakness, abnormal motion, and guarding of movement. There was grinding, crepitation but no instability, mass behind the knee or patellar/meniscus abnormality. Range of motion, in degrees, resulted in flexion to 110 and extension to 0 (normal). There was objective evidence of pain following repetitive motion. Pain started at 90 degrees and ended at 110 degrees flexion. There were no additional limitations after three repetitions of range of motion. There was no joint ankylosis. The Veteran had an administrative occupation for the prior 5 to 10 years, which was full time employment. He had lost 0 time from work during the last 12 month period. The diagnosis was right knee arthritis with instability, and problems associated with the diagnosis was arthritis, valgus deformity, and instability of the right knee. Functional effects were described as significant due to decreased mobility and pain. The resulting work problem was that he was assigned different duties. Effects on usual activities were none on traveling, feeding, toileting and grooming; mild effect on shopping, recreation, traveling, bathing, dressing; and moderate effects on chores, exercise and driving. The Veteran was afforded a VA knee examination in August 2013. The diagnosis indicated with degenerative joint disease of the right knee. The Veteran reported his knee was worse. He could not walk long distances. His right knee locked up three times per week. He took medication for pain if needed. The Veteran reported flare-ups described as swelling and more pain if he did something wrong and this happened twice a week. Range of motion, in degrees, resulted in right knee flexion to 140 or greater, with objective evidence of painful motion at 140 or greater; extension to 0 (normal) with no objective evidence of painful motion. Range of motion in degrees remained unchanged upon repetitive use. The Veteran had tenderness or pain to palpation for joint line or soft tissue of the right knee. Muscle strength testing resulted in 5/5 for right knee flexion and extension. Joint stability testing was normal for anterior, posterior and medial-lateral instability. There was no evidence of recurrent patellar subluxation/dislocation. The Veteran did not have shin splints (medial tibial stress syndrome) at any time or any other tibial and/or fibular impairment. The Veteran had a meniscus condition with frequent episodes of locking, joint pain and effusion. The Veteran had a meniscectomy with residual signs and symptoms on the right resulting in pain with a locking sensation. The Veteran had not had a total knee joint replacement. There were no scars related to any of the conditions or to the treatment of any conditions listed in the diagnosis section. Imaging studies were performed and documented degenerative or traumatic arthritis in the right knee. There was no X-ray evidence of patellar subluxation. The Veteran's knee condition impacted his ability to work because it would be difficult for the Veteran to perform jobs requiring prolonged walking, heavy weight lifting and climbing. Analysis As noted, the Veteran's asserts entitlement to a rating in excess of 10 for a right knee condition to include arthritis and valgus deformity and a rating in excess of 10 percent for right knee instability. As an initial matter, with respect to higher ratings under Diagnostic Code 5260 and Diagnostic Code 5261 for limitation of flexion and extension of the knee, the record does not show that the criteria for a compensable rating for either knee are met. In this regard, the Veteran's right knee flexion was at worst, 60 degrees and extension was at worst, 0 degrees. The Veteran does have X-ray evidence of degenerative arthritis in his right knee, see March 9, 2009 X-ray, and has subjective complaints of pain. In light of these findings, the Board observes that the criteria for a 10 percent evaluation under Diagnostic Code 5003 or 5010 are warranted. However, these findings would warrant no more than a 10 percent disability evaluation as there is X-ray limitation of motion with evidence of involvement or only one major joint group (the right knee). In determining that the Veteran does not meet the criteria based on limitation of motion, the Board has considered the evidence that the Veteran's complaints of pain and the clinical findings as to where the pain began during range of motion testing. However, it is significant that the clinical evidence is against a finding of additional limitation of motion after repetitive motion. Pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. at 43; see 38 C.F.R. § 4.40. As the Court noted in Mitchell, a Veteran is not entitled to the maximum disability ratings under DCs 5260 and 5261 simply because the Veteran exhibits pain throughout range of motion. The Veteran reported no flare ups as he had pain all the time during his February 2008 examination. Despite complaints of pain, weakness, lack of endurance and instability, the Veteran was able to forward flex his knee to 60 degrees with pain with no change in range of motion after repeated use. Subsequent examination in April 2010 revealed range of motion to 110 degrees with pain starting at 90 degrees. Again, the examiner noted that there were no additional limitations after repetition of range of motion testing. Most recent examination in August 2013 revealed range of motion to 140 degrees with no objective evidence of painful motion and no change in range of motion after repetitive use. Based on the Veteran's complaints of pain and limitation of motion, and the VA clinical objective findings, with consideration of DeLuca factors, the Board finds that a rating in excess of 10 percent is not warranted for any time during the course of the appeal for arthritis with limitation of motion. While the Board notes that the Veteran does not warrant a higher evaluation based on arthritis with limitation motion, the Board observes that the Veteran has a meniscus condition with frequent episodes of locking, pain and effusion into the joint, as indicated by the most recent 2013 VA examiner. As such, a maximum rating of 20 percent under Diagnostic Code 5258 is warranted for the Veteran's meniscus condition. The Veteran cannot receive ratings for his right knee disability under both Diagnostic Code 5258 and Diagnostic Codes 5261 and/or 5260 without violating the rule against pyramiding. A precedential opinion of VA Office of General Counsel, which is binding on the Board, has determined that limitation of motion is a relevant consideration under Code 5259, which also addresses disability of semilunar cartilage. See VAOPGCPREC 9-98. By analogy, limitation of motion is also a consideration under Diagnostic Code 5258. Separate ratings under Diagnostic Code 5258 and Diagnostic Codes 5260 and/or 5261 (the Diagnostic Codes which address limitation of flexion and extension of the leg) are therefore precluded due to the prohibition against pyramiding. 38 C.F.R. § 4.14. Therefore, it would be impermissible to assign separate ratings under Diagnostic Code 5258 and Diagnostic Codes 5003, 5010, 5261 and/or 5260. The Board also notes that rating the Veteran disability under 5258 is more favorable to the Veteran given the clinical findings particular to his case. Neverthless, it was permissible for the RO to have assigned a separate disability evaluation in this case based on instability as such symptomatology does not contemplate painful motion. With respect to a rating under Diagnostic Code 5257 for instability or subluxation of the knee, the Board notes that the record supports no more than a 10 percent evaluation for mild instability. The Veteran has provided subjective complaints of instability, he wears a knee brace and instability was noted by the February 2008 VA examiner upon physical examination, which indicates some evidence of instability. However, in VA examinations from April 2010 and August 2013, there was no objective evidence of instability found upon physical examinations. Significantly, the most recent 2013 VA joint stability examination revealed normal findings for anterior, posterior and medial lateral testing. There have been no indications of subluxation or dislocation. As such, the record does not show that the Veteran has suffered from moderate, recurrent subluxation or lateral instability as required for a higher 20 percent rating and the Veteran's right knee disability picture more nearly approximates no more than "slight" instability under Diagnostic Code 5257. As such, moderate instability or recurrent subluxation has not been shown. A higher rating is not available for removal of semilunar cartilage with symptoms under DC 5259, and it is therefore inapplicable. In addition, no higher or alternative rating under a different DC can be applied. The Veteran did not exhibit ankylosis, thus a rating under DC 5256 is not appropriate. The Veteran's right knee is condition is not manifested by nonunion or malunion of the tibia and fibula under DC 5262, or genu recurvatum under DC 5263. The Board notes an April 2009 MRI indicates some evidence of a fractured tibia, however, there was no indication of any tibial or fibula condition in subsequent VA examinations in 2010 or 2013. Notably, the most recent 2013 VA examiner specifically indicated there was no fibular condition. The Board also notes the Veteran is currently service connected for a distal fibula under DC 5271 related to his right ankle. Extra-schedular consideration Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extraschedular disability rating would be warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). The discussion above reflects that the rating criteria reasonably describe and contemplate the severity and symptomatology of the Veteran's service-connected right knee disabilities. The Veteran's complaints, to include pain, weakness, tenderness, swelling, have been considered as they relate to limitation of motion. The Board has also considered the Veteran's complaints of instability in providing an appropriate rating. Therefore, referral for consideration of an extraschedular rating is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008). ORDER The previously denied claim of entitlement to service connection for sinusitis is reopened on the basis of new and material evidence; to that extent only, the appeal is granted. Entitlement to service connection for sinusitis is denied. Entitlement to a 20 percent rating right knee condition to include arthritis, valgus deformity, and residuals of a meniscectomy is granted. Entitlement to a rating in excess of 10 percent for right knee instability is denied. REMAND Upon a review of the record, the issue of entitlement a rating in excess of 10 percent for residuals of excision of a left paraspinal schwannoma (other than muscle cramping) must be remanded for further evidentiary development. The Veteran was last afforded a VA brain and spinal cord examination addressing the Veteran's residuals of excision of left paraspinal schwannoma in July 2008. The VA examiner indicated there were findings of dysesthesias described as superficial cutaneous pain of the left side of abdomen. It was further indicated that the sensory function of a nerve or group of nerves were not affected. The diagnosis was neuropathic pain secondary to left paraspinal T8 swanoma excision. There were residuals of nerve damage indicated as radicular pain in the left T8 area. The summary of effect on occupational and daily activities indicated thoracic T8 radiculopathy from swanomma resection with no obvious abdominal muscle pathology and the problem associated with the diagnosis as muscle damage from swannoma resection. Despite a diagnosis of radiculopathy, the nerves involved, if any, and the severity of such have not been clearly identified. Further, the Veteran has provided statements which suggest a worsening of his condition and he has challenged the adequacy of his July 2008 VA examination. For example, in the Veteran's VA Form 9 dated March 09, 2011, the Veteran reported "excruciating" pain. As such, an updated VA examination to adequately address the severity of the Veteran's residuals of a left paraspinal schwannoma (other than muscle cramping) condition is required. Accordingly, the case is REMANDED for the following action: 1. Arrange for the Veteran to undergo an appropriate VA examination in order to assist in determining the current nature and extent of the Veteran's residuals of a left paraspinal schwannoma (other than muscle cramping) condition to include associated neurological manifestations including any radiculopathy and scars. Any testing deemed necessary should be performed. All pertinent pathology associated with the service-connected disorder should be noted in the examination report. The examiner must provide detailed findings regarding any neurological impairment and scars associated with the Veteran's residuals of a left paraspinal schwannoma (identifying the nerves involved or seemingly involved) and fully describe the extent and severity of those symptoms. A complete rationale for any opinion expressed should be provided in a legible report. In doing so, the examiner should reconcile any contrary medical evidence of record. 2. Thereafter, the issue on appeal should be readjudicated. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate opportunity to respond thereto. The matter should then be returned to the Board, if in order, for further appellate review. The Veteran 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). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs