Citation Nr: 1613841 Decision Date: 04/05/16 Archive Date: 04/13/16 DOCKET NO. 08-16 696 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a right elbow disability. 2. Entitlement to service connection for pharyngitis. 3. Entitlement to service connection for a left shoulder disability. 4. Entitlement to service connection for a right knee disability. 5. Entitlement to service connection for a right foot disorder. 6. Entitlement to an initial rating in excess of 10 percent for degenerative changes of the left knee status post meniscectomy (left knee disability). 7. Entitlement to an initial rating in excess of 10 percent for right shoulder strain (right shoulder disability). 8. Entitlement to an initial rating in excess of 10 percent for sinusitis. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services WITNESSES AT HEARING ON APPEAL Appellant and Dr. C.B. ATTORNEY FOR THE BOARD E. Tamlyn, Counsel INTRODUCTION The Veteran served on active duty from November 1978 to March 1990. These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2007, July 2007, and August 2007 rating decisions issued by the Department of Veterans Affairs Regional Office (RO) in Roanoke, Virginia. The Veteran testified before the undersigned at an April 2011 Board hearing. A transcript of the hearing is in the file and has been reviewed. In August 2011, the Board, in pertinent part, denied service connection for a right elbow disability, pharyngitis, and a low back disability and denied higher initial ratings for left knee and right shoulder disabilities and sinusitis. The issues of service connection for left shoulder disability, right knee disability, hypertension, right foot disorder, and bowel and bladder impairment were all remanded for additional development. In September 2011, the Veteran submitted a request for reconsideration, which was subsequently withdrawn and dismissed by the Board in November 2011. The Veteran appealed the portion of the August 2011 Board decision that denied the right elbow, pharyngitis, low back, sinusitis, left knee, and right shoulder claims to the United States Court of Appeals for Veterans' Claims (Court). Before the Court issued a decision, the Veteran and the Secretary of VA filed a Joint Motion for Partial Remand (Joint Motion), which was granted by the Court in January 2012. The Joint Motion vacated the August 2011 Board decision to the extent that it denied service connection for a right elbow disability, pharyngitis, and a low back disability, and denied higher initial ratings for sinusitis, left knee, and right shoulder disabilities. The matters have been returned to the Board for adjudication consistent with the Joint Motion. A remand then ensued in November 2012. Since the last remand, the Agency of Original Jurisdiction (AOJ) has granted service connection for the following: lumbar sprain; hypertension; and irritable bowel syndrome (IBS). As a result, these issues are no longer before the Board. In October 2015, the Veteran submitted a VA Form 9 (appeal) for the issues listed on a September 2015 Statement of the Case (SOC). This includes claims for an earlier effective date for the grants of service connection for detrusor hyperactivity, lumbar sprain, hypertension, and IBS; and initial ratings for lumbar sprain, hypertension, and IBS. No VA Form 8 (certification to the Board) is located in the file. The Board declines jurisdiction of these issues at this time, to complete development, including arranging for a Central Office hearing, per the Veteran's request. The last Board remand listed sinusitis as 10 percent disabling; this rating was awarded in the August 2011 Board decision (the confusion may stem from an error in the ORDER of that decision- a corrected Order will be separately issued to address this.) The JMR and approving January 2012 Court Order did not disturb this rating. While the recent code sheets list this rating as noncompensable (see March 2012 and March 2015 code sheets), this is in error and should be fixed by the AOJ immediately. The issues of entitlement to service connection for pharyngitis, a right knee disability and a right foot disability are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. The weight of the evidence is against a finding that a right elbow disability was manifested during service or is otherwise related to the Veteran's active service. 2. Resolving doubt in the Veteran's favor, a left shoulder disability is related to the service-connected right shoulder disability. 3. The left knee disability is not manifested by ankylosis, compensable limitation of motion, tibia/fibula impairment or genu recurvatum; it is manifested by dislocated semilunar cartilage and episodes of locking, pain, and effusion into the joint. 4. The left knee is also manifested by slight subluxation and instability. 5. The right shoulder disability (major) is not manifested by ankylosis, limitation of motion to the shoulder level (or worse), or with impairment of the humerus or scapula. 6. Sinusitis has not been incapacitating with required prolonged antibiotic treatment, or manifested by more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain and purulent discharge or crusting. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for a right elbow disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2015). 2. The criteria for an award of service connection for a left shoulder disability have been met. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. 3. The criteria for an increased rating for the left knee disability to 20 percent have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Part 4, Diagnostic Codes (DCs) 5256-5263 (2015). 4. The criteria for a separate rating of 10 percent for the left knee instability have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Part 4, DC 5257. 5. The criteria for a compensable rating beyond 10 percent disabling for the right (major) shoulder disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a (& Plate I), Diagnostic Codes (DCs) 5003, 5200-5203 (2015). 6. The criteria for an increased rating for sinusitis in excess of 10 percent disabling have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.96, 4.97 DCs 6510-14 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA In an October 2006 letter, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2014) and 38 C.F.R. § 3.159(b) (2015). The RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the he was expected to provide. The Veteran was informed of the process by which initial disability ratings and effective dates are assigned, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was also sent information regarding individual DCs in January 2008. The "duty to assist" contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim. 38 C.F.R. § 3.159 (2015). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2014) and 38 C.F.R. § 3.159(c) (2015). Relevant service treatment and VA medical records have been associated with the claims file. The Veteran reported treatment from many private or non-VA sources and the Board finds that information from each source has already been requested and a response has been received. The Veteran was given VA examinations in 2013 and 2014 which are fully adequate, as explained further below. In general, the examiners fully addressed rating criteria and were fully responsive to the questions at issue.) See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Court has held that the provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). Here, the transcript of the April 2011 Board hearing shows the Veteran gave information regarding her claims and responded to questions aimed at determining whether further information was needed to substantiate the claim. The Veteran, who is represented, has not raised complaints regarding the conduct of the hearing. In November 2010, the Board remanded this claim for updated treatment records, VA orthopedic examinations (right elbow, shoulder, knee) and respiratory examinations (sinusitis). The Board finds that there has been substantial compliance with the remand regarding the issues adjudicated in this decision. See Stegall v. West, 11 Vet. App. 268 (1998). The Board finds the duties to notify and to assist have been met. Service Connection Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303(a) (2015). Service connection generally requires evidence of (1) a current disability; (2) lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease; such diseases are listed in 38 C.F.R. § 3.309(a) and does not include epicondylitis although it does include arthritis. See, Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). This avenue of entitlement is only applicable for the left shoulder claim. The Board must determine the value of all pertinent lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The evaluation of evidence generally involves three steps: competency, credibility and weighing the evidence as a whole. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2) (2015). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372, 1377, Footnote 4 (Fed. Cir. 2007). The Board must then determine if the evidence is credible; in determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza, 7 Vet. App. 498. The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Right Elbow This issue was remanded pursuant to a January 2012 Order of the Court. The August 2011 Board decision stated there was no present disability besides a right upper extremity nerve disability (which was granted in the August 2011 decision). In January 2012, the Court approved a JMR which stated that the August 2011 decision failed to account for the fact that Dr. C.B. diagnosed "a right elbow problem." The Veteran contended in her August 2006 claim that she suffered a right elbow injury in November 1983 and referenced her service treatment records. In an August 2007 email to Dr. C.B. she stated that she had nerve-related right elbow complaints. She listed no other elbow problems. In a May 2008 notice of disagreement and at her April 2011 hearing she asserted a right elbow injury was documented in medical treatment received for the 1984 and 1979 motor vehicle accidents (MVAs) she had in service. In October 2006 M.T., her former boss and coworker, addressed her decline in health generally. In September 2012, her representative (now former representative) noted that Dr. C.B. had diagnosed a right elbow disability but acknowledged there was still no nexus to service in the file. The Veteran is currently service-connected for cervical strain, mild incomplete neuralgia of the right upper extremity, and right shoulder strain (see March 2015 rating decision code sheet). R.C. records indicate she has carpal tunnel syndrome. In any case, nerve-related complaints are already being compensated and are not applicable here. The service treatment records contain a November 1983 entry showing an assessment of "trauma to right elbow last night." Meanwhile, records regarding a MVA in 1979 only reference back strain (see May 5 and 21 1979 records) and the MVA documented in 1984 similarly does not show treatment for, complaints of or diagnoses for a right elbow problem (see June 1984 records). A November 1985 Report of Medical Examination (RME) stated a clinical evaluation of the upper extremities was normal. It related that the Veteran was involved in a MVA, and was treated for back and neck problems. She still complained of back pain, but there was no other significant history. Here, the Veteran is competent to state that she injured her right elbow in service. 38 C.F.R. § 3.159(a)(2). The November 1983 service treatment record does support that an injury occurred that month, and to that extent she is credible. However, regarding a right elbow injury (other than nerve-related) in either of the MVAs, the Board finds the Veteran to be not credible because she referenced the November 1983 treatment record, not the MVAs in her initial claim. Also, in the August 2007 email to Dr. C.B. she described her elbow pain as actually emanating from the right shoulder and as being largely neurologic in nature. Finally, the MVA records do not support that she had any elbow problems. The Board assigns the assertions the right elbow was injured in an MVA in service less weight. Caluza, 7 Vet. App. 498. In December 2007, Dr. C.B. opined, after examining the Veteran, that she had problems with "this organ system." He stated: It is my opinion that her current [right] elbow (see attached lay statements) problems are due to his experiences (sic) and problems that the patient had with this elbow during military service for the following reasons. 1 She entered the service fit for duty. 2 She had problems with her elbow in service which is likely due her auto accident. 3 She has daily pain in this joint. 4 Her record does not contain a more likely etiology to explain her elbow problems and she should be assigned high level medical diagnostic codes for this condition as service connected. This opinion is problematic for several reasons besides the fact that the Veteran has initially only complained of nerve problems with respect to the upper extremity (this disability is already service-connected). The first and third points do not relate anything specific as to the etiology of the right elbow disability. The second point is rebutted by November 1983 service treatment record which states the problem was due to "trauma to right elbow last night" and not due to any accident in 1979. The 1984 accident, obviously, came after November 1983. Further, the treatment records regarding the accident do not reference elbow problems, to include the November 1985 RME. The Board may weigh a claimant's lay statements against the absence of contemporary medical evidence. Fountain v. McDonald, 27 Vet. App. 258, 272 (2015); Buchanan v. Nicholson, 451 F.3d 1331, 36-37 (Fed. Cir. 2006). However, it must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation. See Horn v. Shinseki, 25 Vet. App. 231, 239 (2012). The absence of a record of an event which would ordinarily have been recorded gives rise to a legitimate negative inference that the event did not occur. AZ v. Shinseki, 731 F.3d 1303, 1315 (Fed. Cir. 2013) (internal citations omitted). For example, a foundation may be laid by establishing a medical reason for why a doctor would make a particular entry in regular treatment records. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). Here, the service treatment and MVA records appear complete; several symptoms were mentioned but not right elbow complaints. Further, the November 1985 RME did not show right elbow problems after the last MVA. Finally, given the context of how the history of a right elbow disability has been reported, it makes more since to rely on documentary evidence as it was created closer to the time to when the events (here, the MVA and November 1983 injury) occurred and was made during the course of treatment. At the April 2011 Board hearing, the Veteran asserted that her elbow disability was the result of in-service accidents. (Transcript, p 10.) Dr. C.B. essentially stated that the accidents caused a neck injury which caused hand weakness and so "she's developed arthritis into those joints of her elbow and shoulders." (Transcript, p 11.) The elbow had crepitus. Id. At an April 2013 VA examination, the Veteran was diagnosed with medial tendonitis of the right elbow. The Veteran asserted that she injured it during in-service MVAs, but that there was no fracture. She was symptomatic over the years and stated the last treatment for it was 2009. Imaging, however, showed a normal right elbow. The examiner noted that in addition to an elbow condition she had carpal tunnel and cervical degenerative joint disease with radiculopathy; her elbow condition was worsened if she leaned on it or used a key board for a long time. Unfortunately, no opinion could be provided because the claims file was unavailable. At a February 2014 VA examination, the prior diagnosis was given, the Veteran related her contentions and the examiner again noted negative X-rays. The Veteran stated she was shoved under dashboard in a MVA in service and her elbow went into some part of car, but there was no fracture. The Veteran presently had recurrent bilateral epicondylitis. The examiner stated the right elbow disabilities were less likely as not caused by or related to car accidents in service. The examiner noted that in November 1983 the Veteran was seen for trauma to right elbow and no specific diagnosis was made. After reviewing the claims file, no other in-service evaluations for right elbow were found. There was no documented chronic right elbow disorder made while in active duty. Here, the Board finds the February 2014 VA examiner opinion more probative than Dr. C.B.'s December 2007 opinion. Dr. C.B. relied on the Veteran, whose testimony is assigned less weight for the reasons explained above. He also stated there was elbow arthritis, which is not supported by the evidence in the file. Also, the examiner reviewed the file and accounted for the lack of chronicity. The Board assigns the February 2014 opinion greater weight. Nieves-Rodriguez v Peake, 22 Vet. App. 295 (2008). As a competent and credible nexus opinion is lacking, service connection for a right elbow disability is denied. Shedden, 381 F.3d at 1167. Left Shoulder A left shoulder disability has been established; there are diagnoses of degenerative joint disease and rotator cuff tendinopathy (see April 2013 and February 2014 VA examination reports). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran has provided (and the file also corroborates) competent and credible evidence of in-service incurrence of automobile accidents in service (see, for example, a June 1984 emergency room (ER) treatment record showing decreased left hand grip and left shoulder complaints); an in-service injury is demonstrated. See 38 U.S.C.A. § 1154(b) (West 2014); Shedden, 381 F.3d at 1167. Dr. C.B. also provided a positive nexus opinion in September 2011 relating the left shoulder disability to the service-connected right shoulder. While the February 2014 VA examination report provided a negative nexus opinion as to direct service connection, the examiner could not resolve the secondary service connection and secondary aggravation questions without resorting to speculation because there was not enough medical data. Under the circumstances, the Board finds the evidence to be at least in equipoise as to whether the Veteran has a left shoulder disability that is related to active service and/or other service-connected disabilities. Resolving reasonable doubt in the Veteran's favor, service connection for left shoulder degenerative joint disease and rotator cuff tendinopathy is granted. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013). Increased Ratings When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2014). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board may decide whether an issue should be referred for extraschedular consideration. An extraschedular disability rating is warranted if 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 application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. The Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Id. For the orthopedic ratings, there are other factors which must be considered in addition to those contained in the applicable rating code. In this regard, the Board recognizes that the disability of the musculoskeletal system is primarily the inability due to damage or an infection in parts of the system to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. Factors to be considered include pain on movement, weakened movement, excess fatigability, and incoordination. 38 C.F.R. §§ 4.40, 4.45 (2015). Functional impairment due to pain must be considered. 38 C.F.R. § 4.59 (2015). Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (2015) (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, however, should only be considered in conjunction with the DCs predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7, 11 (1996). Also, functional loss due to pain must be supported by pathology and shown through objective observation. Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997) (citing 38 C.F.R. § 4.40); See Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011) (examination reports should address any range of motion loss specifically due to pain and any functional loss due to pain during flare ups). Left knee The August 2011 Board decision and remand sustained the 10 percent rating in place for the left knee disability (it also found a knee scar to be noncompensable, however that issue is no longer before the Board). The January 2012 Order by the Court approved a JMR, which stated that the Board failed to provide a staged rating for when Dr. C.B. stated the Veteran had instability signs and symptoms. The history of the Veteran's left knee disability shows that in May 2007 the RO granted service connection for a left knee disability and assigned a noncompensable rating under DC 5010 (arthritis due to trauma which refers to DC 5003, degenerative arthritis). In July 2007, the RO increased the rating 10 percent effective August 25, 2007. Several DCs for rating the knees are not applicable here. Ankylosis of the knee is addressed under 38 C.F.R. § 4.71a, DC 5256, however, the evidence shows the left knee is not ankylosed. There is also no evidence of any impairment of the tibia or fibula or genu recurvatum to allow for application of DCs 5262 or 5263. 38 C.F.R. § 4.71a. Turning to the DCs at issue, under 38 C.F.R. § 4.71a, DC 5257, pertaining to "other impairment of the knee," a 20 percent rating is assigned when there is moderate recurrent subluxation or lateral instability and a 30 percent evaluation is assigned for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257 (2014). The words "slight," "moderate," and "severe" as used in the various DCs 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 (2015). DCs 5258 and 5259 address the meniscus, or semilunar cartilage. When there is removal of semilunar cartilage and the knee is symptomatic a 10 percent rating is warranted under DC 5259. When there is dislocated semilunar cartilage with locking, pain, and effusion into the joint, a 20 percent rating is warranted under DC 5258. DC 5260 provides for the evaluation of limitation of flexion of the knee. 38 C.F.R. § 4.71a. (Standard motion of a knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II.) A 10 percent rating is warranted when flexion is limited to 45 degrees. A 20 percent rating is warranted when flexion is limited to 30 degrees. A 30 percent rating contemplates limitation to 15 degrees. DC 5261 provides for the evaluation of limitation of extension of the knee. 38 C.F.R. § 4.71a. A 20 percent rating is warranted when extension is limited to 15 degrees. Extension limited to 20 degrees warrants a 30 percent evaluation, extension limited to 30 degrees warrants a 40 percent evaluation, and a 50 percent evaluation contemplates extension limited to 45 degrees. Traumatic arthritis, under DC 5010, is to be rated under degenerative arthritis (DC 5003). Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. See 38 C.F.R. § 4.71a, DCs 5003. Note (1) states that the 20 and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. Absent X-ray findings of arthritis, limitation of motion should be rated under DCs 5260 and 5261. The claimant's painful motion may add to the actual limitation of motion so as to warrant a rating under DC 5260 or 5261. The Veteran contended at the April 2011 Board hearing that her knee was painful (Transcript, p 29). She wore knee braces (Transcript, p 31). She was well-accommodated at work (Transcript, p 32). The knee gives out, locks up, freezes and cracks (Transcript, p 35). She used a cane in public. Id. (See also October 2006 lay statements submitted regarding the Veteran's physical condition and August 2007 email from the Veteran to Dr. C.B.) The history of the left knee reveals that in February 1994 (prior to the time period on appeal) the Veteran underwent surgery at WWHMC for a left knee medial meniscus tear. The Board has reviewed the entire record and concludes that the Veteran does not have compensable limitation of motion under DCs 5260 or 5261, even when considering painful motion. (See June 2007, April 2010, April 2013 and February 2014 contract VA and VA examination reports as well as an October 2011 R.C. record.) This is why the arthritis code was assigned originally-neither limitation of motion code was applicable. In reviewing the symptoms and reports of flare ups and other symptoms in addition to the range of motion measurements in the record, the Board concludes there is insufficient showing of functional loss supported pathology and objective observation to warrant an increased rating for either flexion or extension. See DeLuca, 8 Vet. App. 202; Johnston, 10 Vet. App. at 84-85; and Mitchell, 25 Vet. App. at 37. In February 2014, the VA examiner was given the opportunity to comment on further changes in functionality of range of motion but could not do so without resorting to speculation because the Veteran was not currently having a flare up. The examiner was given the opportunity to comment on such functionality as required by Mitchell, 25 Vet. App. at 44. The Board does find that the Veteran has dislocated semilunar cartilage with frequent episodes of locking, pain and effusion into the joint. This is supported by an October 2011 MRI which noted a degenerative tear involving the anterior horn of lateral meniscus and posterior horn of medial meniscus. The February 2014 VA examination report also supports this rating (noting a past meniscal tear with frequent episodes of locking, pain and effusion into the joint). Additionally, the Veteran has reported such symptoms since the filing of her initial claim so the rating should be increased since the date of claim (no staged rating is necessary). The Veteran may not be assigned separate ratings under both DCs 5010/5003 and 5258. The Veteran's knee disability has been manifested by joint locking, painful motion, effusion, and osteoarthritis. Both DCs contemplate based on pain and locking as forms of limitation of motion; therefore, assigning separate ratings under both DC 5003/5010 and Diagnostic Code 5258 would violate the prohibition against pyramiding. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261 (1994) (the critical element is that none of the symptomatology for any condition is duplicative of or overlapping with the symptomatology of the other condition). As noted above, the Veteran is currently in receipt of a 10 percent rating (the highest available rating in this case) under DC 5010 for osteoarthritis with painful motion; however, DC 5258 allows for a higher (single and maximum) 20 percent disability rating for dislocation of semilunar cartilage with frequent episodes of joint locking, pain, and effusion. The assignment of a particular DC is "completely dependent on the facts of a particular case" and the Board can choose the diagnostic code to apply so long as it is supported by reasons and bases as well as the evidence. Butts v. Brown, 5 Vet. App. 532, 538 (1993). One DC may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in DC by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). It is permissible to switch DCs to reflect more accurately a claimant's current symptoms. Read v. Shinseki, 651 F. 3d 1296, 1302 (Fed. Cir. 2011) (holding that service connection for a disability is not severed when the DC associated with it is changed to determine more accurately the benefit to which a veteran may be entitled). The Veteran's knee disability has been manifested by dislocation of the semilunar cartilage (meniscus) and by symptoms of joint pain, effusion, and locking, which the Board finds more closely approximates the criteria for a 20 percent rating under DC 5258. As such, the Board finds that a 20 percent rating under DC 5258 is warranted as use of DC 5258 is more favorable. As noted above, in any case involving knee pain or locking, separate ratings may not be assigned under DC 5010 and 5258 because to do so would constitute pyramiding; therefore, because the Board is granting a higher rating of 20 percent under DC 5258, the 10 percent rating under DC 5010 will be discontinued. Moreover, this change in DC does not amount to a reduction, as the rating of the Veteran's knee disability increases from 10 percent to 20 percent as a result of this decision. The Veteran may not be assigned a separate rating under DC 5259, as she has already being assigned a rating under DC 5258 for the residual symptoms associated with the left knee. Under DC 5259, a maximum 10 percent rating is assigned for removal of semilunar cartilage which is symptomatic. 38 C.F.R. § 4.71a. That is, there are only two requirements for a compensable rating under DC 5259. First, the semilunar cartilage or meniscus must have been removed. Second, it must be symptomatic. Looking to the plain meaning of the terms used in the rating criteria, "symptomatic" means indicative, relating to or constituting the aggregate of symptoms of disease. STEDMAN'S MEDICAL DICTIONARY, 1743 (27th ed., 2000). A symptom is any morbid phenomenon or departure from the normal in a structure, function, or sensation, experienced by a patient and indicative of disease. Id. at 1742. Thus, the second DC 5259 requirement of being "symptomatic" is broad enough to encompass all symptoms, including pain, limitation of motion (including as due to joint "locking"), and effusion. The rating criteria under DCs 5258 and 5259 differ from each other only in that the semilunar cartilage is dislocated in DC 5258 and surgically absent in DC 5259. DC 5258 requires dislocation of the semilunar cartilage with symptoms of frequent joint locking, pain, and effusion and DC 5259 requires removal of the semilunar cartilage that is symptomatic; therefore, DCs 5258 and 5259 overlap with each other in symptoms of pain, effusion, and locking, but not as to dislocation or surgical absence. Esteban v. Brown, 6 Vet. App. 259, 261 (1994) (stating that the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition). Granting a separate rating for the same overlapping manifestations of the Veteran's knee disability under DC 5259 would constitute impermissible pyramiding. 38 C.F.R. § 4.14. Moreover, the highest available rating under DC 5259 in this case is 10 percent; thus, DC 5259 does not allow for a higher rating than DC 5258 (which provides a single, maximum rating of 20 percent). In addition to the symptoms described above, Dr. C.B. states that there is instability. In November 2007, Dr. C.B. stated the Veteran asserted her knees buckled and caused her to fall; therefore, she had instability signs and symptoms. A September 2011 R.C. record stated that the Veteran injured her left knee recently and noted the kneecap felt unstable. This record stated that an MRI showed severe patellar chondromalacia with associated lateral patellar subluxation; otherwise, it was a limited study with no discrete meniscal or ligamentous injury. The April 2013 VA examination reported noted that functional loss included instability. There were several examination reports that noted no objective evidence of instability (see June 2007, April 2010, and February 2014 VA examination reports). As a result, the Board finds the evidence regarding whether there has been consistent subluxation and instability to be in equipoise and will grant the separate rating for the time period on appeal. See 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015). VA General Counsel has interpreted that, if a musculoskeletal disability is rated under a specific DC predicated upon limitation of motion - DC 5258, as applicable here, in that it contemplates limitation of motion in the form of joint "locking" ("locking" is the sudden loss of ability to extend the knee) - assigning a separate rating under another diagnostic code that does not appear to involve limitation of motion (e.g., DC 5257) would not constitute pyramiding. See VAOPGCPREC 23-97, 9-98. Here, the Veteran is currently in receipt of a 20 percent rating (the maximum and only rating available) under DC 5258 for a medial meniscus tear (i.e., dislocation of the semilunar cartilage) with symptoms of joint locking, pain, and effusion. Review of the evidence of record reflects that the Veteran's left knee disability has also been manifested by lateral instability and subluxation. The Board finds that a separate rating is warranted under DC 5257 and does not violate the prohibition against pyramiding. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261 (1994) (the critical element is that none of the symptomatology for any condition is duplicative of or overlapping with the symptomatology of the other condition). The Board finds that instability is not contemplated by the 20 percent disability rating currently assigned under DC 5258. As such, the Board finds that a separate 10 percent rating under DC 5257 that is manifested by occasional symptoms of instability and subluxation and more nearly approximates slight instability is supported by the evidence of this case. VAOPGCPREC 23-97, 9-98; 38 C.F.R. § 4.71a. Regarding Thun and extraschedular ratings, the Board finds the rating schedule adequately addresses the symptoms of the service-connected left knee disability, as described above. For example, the evidence shows the Veteran has pain, locking and instability due to her symptoms. Such impairment is accounted for in the schedule. 38 C.F.R. § 4.71a. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture and no further analysis is necessary. Thun, 22 Vet. App. at 115-16. The Board has concluded that the evidence of record shows a rating of 20 percent for dislocated semilunar cartilage and 10 percent for instability is warranted for the entire time period on appeal. Hart, 21 Vet. App. 505. The reasonable doubt rule is not for application and the claim is denied. See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015) (stating any reasonable doubt is to be resolved in favor of the Veteran). Right shoulder In July 2007, the RO granted right shoulder strain at 10 percent effective August 25, 2006 under DC 5099-5010. In August 2011, the Board decision found that right shoulder strain was characterized by full range of motion and pain; a 10 percent rating was sustained. The JMR, approved by the Court in January 2012, found that the Board relied on an inadequate VA examination report under Mitchell. As noted above, the Veteran is already receiving a separate 20 percent rating for the mild incomplete neuralgia of the right upper extremity associated with service-connected cervical strain under DC 8514; this issue is not on appeal. The normal range of motion of shoulder for flexion and abduction is from 0 degrees at the side to 180 degrees over head. 38 C.F.R. § 4.71, Plate I (2015). Shoulder level is at 90 degrees, and exactly midway between the side and shoulder level is at approximately 45 degrees. The right shoulder, shown throughout the record to be the major extremity, is currently rated at 10 percent under DC 5099-5010 (please see above regarding the requirements of traumatic/degenerative arthritis). See 38 C.F.R. § 4.27 (regarding use of DCs and rating by analogy). Under DC 5201, a 20 percent rating is assigned for limitation of the minor or major arm to shoulder level. If there is limitation of the shoulder midway between side and shoulder level a 20 percent rating is also assigned for the minor arm, but a 30 percent rating is assigned for the major arm. If the limitation is 25 degrees from the side, a 30 percent rating is assigned for the minor arm; 40 percent for the major arm. Id. In determining whether a veteran has limitation of motion to shoulder level, it is necessary to consider reports of forward flexion and abduction. See Mariano v. Principi, 17 Vet. App. 305, 314-16 (2003); see also 38 C.F.R. § 4.71, Plate I. Ankylosis of the scapulohumeral articulation is addressed under DC 5200 and other impairment of the humerus is covered under DC 5202. 38 C.F.R. § 4.71a. Finally, impairment of the scapula is addressed under DC 5203. Id. However, the record does not show such DCs are relevant for the Veteran's right shoulder disability. The Veteran contended in an August 2007 email to Dr. C.B. that she had pain, stiffness, freezing, lifting problems, and soreness. In a December 2007 opinion, Dr. C.B. stated the right shoulder should be assigned more than a 10 percent rating. Several 2006 records showed full or normal range of motion in the right shoulder (see October and December private and NNMCB records). All VA examinations showed full (April 2010 VA contract examination report) or only slightly reduced range of motion, even after taken into account additional limiting factors (see June 2007, April 2013, and February 2014 VA and contract VA examination reports). At no point has the range of motion approached the 90 degree level. At several points in time the Veteran reported flare ups (April 2010 VA contract examination report and April 2013 VA examination report). In February 2014, the VA examiner was given the opportunity to comment on further changes in functionality of range of motion during flare ups, but could not do so without resorting to speculation. At that time, the Veteran stated she did not have flare ups and was not currently experiencing a flare up. The opportunity to comment on such functionality is all that is required under Mitchell, 25 Vet. App. at 44. The examiner did note, in response to some of the Veteran's complaints, that she was already service-connected for cervical disc disease and the neurological residuals of that problem. In reviewing the symptoms and reports of flare ups and other symptoms in addition to the range of motion measurements in the record, the Board concludes there is insufficient showing of functional loss supported pathology and objective observation to warrant an increased rating for either flexion or extension beyond the 10 percent rating that the Veteran is already receiving. See DeLuca, 8 Vet. App. 202; Johnston, 10 Vet. App. at 84-85; and Mitchell, 25 Vet. App. at 37. Regarding Thun and extraschedular ratings, the Board finds the rating schedule adequately addresses the symptoms of the service-connected right shoulder disability, as described above. For example, the evidence shows the Veteran has pain due to her symptoms. Such impairment is accounted for in the schedule. 38 C.F.R. § 4.71a. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture and no further analysis is necessary. Thun, 22 Vet. App. at 115-16. The Board has concluded that the evidence of record shows a rating of 10 percent is warranted for the entire time period on appeal. Hart, 21 Vet. App. 505. The reasonable doubt rule is not for application and the claim is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Sinusitis In May 2007 the RO granted service connection for sinusitis as noncompensable under DC 6513, chronic maxillary sinusitis. In August 2011, the Board determined that sinusitis was characterized by up to six non-incapacitating episodes per year with headaches, pain, purulent discharge, or crusting. (She is also service-connected for allergic rhinitis and the decision also denied septal deviation; these issues are no longer on appeal.) The Board granted a 10 percent rating for sinusitis. The JMR, approved by the Court in January 2012, that noted an inconsistency in the Board's analysis of sinusitis, at one point noting a report of eight occurrences of sinusitis per year, each for one week, while later finding she had not alleged more than six episodes per year. The two assertions required reconciliation. Sinusitis is rated pursuant to the General Rating Formula for Sinusitis (General Rating Formula). The General Rating Formula provides for a noncompensable rating where sinusitis is detected by X-ray only. A 10 percent rating requires (1) one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment or (2) three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating requires (1) three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment or (2) more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. The maximum disability rating of 50 percent is assigned (1) following radical surgery with chronic osteomyelitis or (2) for near constant sinusitis characterized by headaches, pain and tenderness of the affected sinus, and purulent discharge or crusting after repeated surgeries. 38 C.F.R. § 4.97, Diagnostic Codes 6510 to 6514, General Rating Formula. An incapacitating episode of sinusitis is defined as an episode that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97, DCs 6510 to 6514, General Rating Formula, Note. The Board has reviewed the entire record and does not find evidence of radical sinus surgery or repeated surgeries (see February 2012 R.C. record where the Veteran underwent endoscopy and a possible septoplasty was planned in relation to allergic rhinitis). As a result, the Board does not find that a 50 percent rating is warranted. In determining the number of episodes per year regarding sinusitis, the Board has reviewed the record and considered the Veteran's report of sinus surgery. On an October 1998 life insurance form (prior to the appeal period), the Veteran stated that she regularly had sinusitis, which was treated with antibiotics and she had 4-5 attacks per year. At the June 2007 VA contract examination, the Veteran reported nonincapacitating sinusitis which occurred eight times per year and each episode lasted for one week; she was not incapacitated during the attacks but required antibiotic treatment. At the April 2010 VA contract examination, she stated sinus problems happen six times per year and each episode lasts for one week and she was incapacitated, with headaches and antibiotics for four to six weeks. At the April 2011 Board hearing, Dr. C.B. repeated what the Veteran told the VA examiner (six times per year). At the April 2013 VA examination report, the examiner noted the Veteran's report of one incapacitating episode of sinusitis requiring prolonged (4-6 weeks) of antibiotics treatment in the past 12 months. As noted in the discussion of service connection above, the Board must discuss competence and credibility of the Veteran. The Board finds the Veteran competent to report her symptoms and episodes of her sinusitis disability. 38 C.F.R. § 3.159(a)(2). However, as detailed above, the reports have varied. In reviewing the record as a whole, the Board finds Veteran is not hesitant to visit her doctor for treatment and that she has done so frequently, for all health-related issues to include sinusitis. One of the reasons that the Veteran reports to the doctor for treatment, as she asserted in the June 2007 VA contract examination and on her October 1998 life insurance form, is that she often requires antibiotics (such medication must be prescribed by a physician). As a result, in this case, the Board finds that the voluminous medical record is the most probative evidence of how many sinusitis episodes per year the Veteran actually experiences as opposed to memory, which has been shown to vary. Caluza, 7 Vet. App. 498. The Board has reviewed the entire file and has not found evidence of incapacitating episodes as described by 38 C.F.R. § 4.97; i.e., bedrest prescribed by a physician. In fact, throughout the time period on appeal the records show the Veteran was released without limitations, not prescribed bed rest (See, for example, May 2008, June 2008, October 2009, March 2010, and May 2012 R.C. records). Turning to how many episodes per year were supported by the record during the time period on appeal, the Board finds: one episode in 2006 (December AHA note), two in 2007 (April AHA note and August Tricare problem list), two in 2008 (May and June R.C. record), two in 2009 (January and October R.C. records), two in 2010 (March 9 to 26, 2010 and November 2010 R.C. records), one in 2011 (July R.C. note), and two in 2012 (February and December R.C. records). Some of these episodes noted headaches and discharge while others did not; pain was nearly always reported. Considering the totality of the evidence, the Board does not find that that record supports a finding of more than six non-incapacitating episodes a year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. 38 C.F.R. § 4.97. As a result, a 30 percent rating is not warranted for any time period on appeal. Regarding Thun and extraschedular ratings, the Board finds the rating schedule adequately addresses the symptoms of the service-connected sinusitis disability, as described above. For example, the evidence shows the Veteran has sinus pain due to her symptoms. Such impairment is accounted for in the schedule. 38 C.F.R. § 4.71a. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture and no further analysis is necessary. Thun, 22 Vet. App. at 115-16. The Board has concluded that the evidence of record shows a rating of 10 percent is warranted for the entire time period on appeal. Hart, 21 Vet. App. 505. The reasonable doubt rule is not for application and the claim is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Extraschedular Rating for Multiple Disabilities Finally, the Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. In this case, however, after applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. ORDER Service connection for a right elbow disability is denied. Service connection for left shoulder degenerative joint disease and rotator cuff tendinopathy is granted. An initial increased rating to 20 percent for dislocated semilunar cartilage of the left knee is granted. A separate 10 percent rating for recurrent subluxation or lateral instability of the left knee is granted. An initial rating in excess of 10 percent for the right shoulder is denied. An initial rating in excess of 10 percent for sinusitis is denied. REMAND The November 2012 Board remand requested clarification and/or etiology opinions from a VA examiner regarding the claims of service connection for pharyngitis, a right knee disability and a right foot disability. Regarding pharyngitis, the 2013 VA examination reports only state it was not a present problem and do not explain if this reoccurring problem is related to service or secondarily caused or aggravated by SC sinusitis or rhinitis. In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that where a disability resolves prior to the adjudication of a service connection claim, service connection may still be granted. The Board found that pharyngitis or a sore throat, was noted throughout the record since 2001 and was sometimes present with episodes of sinusitis and sometimes not (see, for example, November 2001 WAMC, April 2007 AHA, November 2010 R.C., and June 2011 R.C. records). Regarding the right knee, the examiner stated that she could not resolve this issue without resorting to speculation; there was no documentation of a right knee disability in service and stated that degenerative joint disease was a common finding with age. The examiner did not state why the issue could not be resolved; documentation of a knee injury is not required. The examiner must explain what facts must be determined before an opinion may be given and why. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010) Regarding the right foot, the examiner failed to address the etiology of a 1997 diagnosis of a calcaneal bone spur in the right foot. Consequently, the Board finds that there has not been substantial compliance with the remand as to these issues. See Stegall, 11 Vet. App. at 271. Accordingly, the case is REMANDED for the following action: 1. Send the file to a VA examiner for a medical opinion regarding whether the reoccurring pharyngitis is related to service or a service-connected disability. The opinion writer should reflect that the file was reviewed. The opinion should state all diagnoses after a full review of the file, to include all relevant submitted medical literature. Then the examiner should state: • whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran has pharyngitis that is related to service; • whether it is at least as likely as not that pharyngitis was caused or aggravated by any current service-connected disability, to include allergic rhinitis and sinusitis. o If aggravated, the examiner should clarify whether there is medical evidence created prior to aggravation or at any time between the aggravation and the current level of disability that shows a baseline of the disability prior to aggravation. The examiner should reference the records noted above. A clear and complete rationale shall be provided for each opinion regarding diagnosis and nexus. 2. Send the file to a VA examiner for a medical opinion regarding the right knee. With respect to the right knee disability, the examiner must answer the following questions as definitively as possible: • whether it is at least as likely as not that the current right knee disability had its onset in service, in the case of arthritis within a year of separation (by March 1991), or is otherwise the result of a disease or injury in service, to include in-service motor vehicle accidents. • whether it is at least as likely as not that the current right knee disability was caused (in whole or in part) or aggravated by her service-connected left knee disability. • If aggravated, the examiner should clarify whether there is medical evidence created prior to aggravation or at any time between the aggravation and the current level of disability that shows a baseline of the disability prior to aggravation. The examiner is also directed to review Dr. C.N.B.'s September 2011 opinion. 3. Send the file to a VA examiner for a medical opinion regarding the diagnosis of a right foot calcaneal bone spur in 1997. The examiner should state whether it is at least as likely as not that the right foot calcaneal bone spur was incurred in or related to service. Any specific symptomatology of the bone spur should be noted. A complete rationale for any opinion expressed and conclusion reached should be set forth in a legible report. 4. Readjudicate the claims. If the determination remains adverse to the Veteran, she and her representative should be furnished with a supplemental statement of the case and given an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs