Citation Nr: 1635767 Decision Date: 09/13/16 Archive Date: 09/20/16 DOCKET NO. 11-21 200 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado THE ISSUES 1. Entitlement to an increased disability rating in excess of 40 percent for degenerative joint disease, status post capsule shift/Bankart repair, right shoulder with history of tendinitis with subluxation. 2. Entitlement to an increased disability rating in excess of 10 percent for left knee patellofemoral pain syndrome. 3. Entitlement to an increased disability rating for residual scar status post right shoulder surgery in excess of 10 percent prior to August 19, 2011, and in excess of 0 percent (noncompensable) from August 19, 2011. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD E. Blowers, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from August 1995 to March 1998. This matter came before the Board of Veterans' Appeals (Board) on appeal from March 2010 and June 2011 rating decisions of the RO in Denver, Colorado. During the course of this appeal, in a May 2015 supplemental statement of the case (SSOC), a Decision Review Officer (DRO) found that sustained improvement had been shown in two examinations and reduced the disability rating for the service-connected right shoulder scarring from 10 percent to noncompensable. The DRO noted in the SSOC that due process right would not be given as the combined schedular rating remained the same. The Veteran testified from Denver, Colorado, at a May 2016 Board videoconference hearing before the undersigned Veterans Law Judge (VLJ), who was seated in Washington, D.C. The hearing transcript has been associated with the record. Since the issuance of the last SSOC, additional evidence has been received by the Board for which a waiver of initial RO consideration was provided. 38 C.F.R. § 20.1304 (2015). The instant matter is a Veterans Benefits Management System (VBMS) appeal. The Board has reviewed both the VBMS and the "Virtual VA" files so as to insure a total review of the evidence. An appellant is presumed to be seeking the maximum possible benefit for the rating appealed. See A.B. v. Brown, 6 Vet. App. 35 (1993). In A.B., the U.S. Court of Appeals for Veterans Claims (Court) recognized that a claimant may limit the claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum allowed by law for a particular service-connected disability. Id. at 39. At the May 2016 Board videoconference hearing, the undersigned VLJ noted the symptoms advanced by the Veteran concerning the left knee disability and right shoulder scarring. As to the left knee, considering the symptoms advanced by the Veteran, the VLJ asked the Veteran if a 20 percent disability rating would satisfy the Veteran as to that issue. The Veteran's representative responded, "that's correct," and the Veteran stated, "yea, I would not want any higher rating than that." No subsequent statements by the Veteran indicate that he is seeking a disability rating in excess of 20 percent for the left knee disability, the evidence does not suggest a rating in excess of 20 percent is warranted, and the Veteran has not indicated that any of the rating criteria for a rating in excess of 20 percent are met or approximated. As such, the instant Board decision granting a 20 percent disability rating under Diagnostic Code 5262 for left knee patellofemoral pain syndrome represents a total grant of benefits concerning this issue. Further, as to the right shoulder scarring rating, at the beginning of the hearing the Veteran and representative testified that the Veteran was only seeking restoration of the 10 percent disability rating for the right shoulder scarring from August 19, 2011, and that a 10 percent disability rating for the entire period on appeal would satisfy the Veteran as to that issue. No subsequent statements by the Veteran indicate that he is seeking a disability rating in excess of 10 percent at any point during the relevant period on appeal for the right shoulder scarring, the evidence does not suggest a rating in excess of 10 percent is warranted, and the Veteran has not indicated that any of the rating criteria for a rating in excess of 10 percent are met or approximated. As such, the instant Board decision granting a 10 percent disability rating for the right shoulder scarring from August 19, 2011 represents a total grant of benefits concerning this issue. The instant matter is a Veterans Benefits Management System (VBMS) appeal. The Board has reviewed both the VBMS and the "Virtual VA" files so as to insure a total review of the evidence. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Per the Veteran's May 2015 Travel Board hearing testimony, and per a May 2016 written Statement in Support of Claim, via VA Form 21-4138, prior to the promulgation of a decision in the present appeal, the Veteran asked to withdraw the issue of an increased disability rating in excess of 40 percent for degenerative joint disease, status post capsule shift/Bankart repair, right shoulder with history of tendinitis with subluxation. 2. From July 31, 2009, the Veteran's service-connected left knee patellofemoral pain syndrome has more nearly approximated malunion of the tibia and fibula, with moderate knee disability characterized by recurrent patellar dislocation, painful limitation of motion, locking, swelling, and slight instability, without ankylosis or dislocation of the semilunar cartilage. 3. For the entire rating period on appeal, including from August 19, 2011, the Veteran's service-connected residual scar status post right shoulder surgery was painful. CONCLUSIONS OF LAW 1. The criteria for the withdrawal of a substantive appeal have been met regarding the appeal for an increased disability rating in excess of 40 percent for degenerative joint disease, status post capsule shift/Bankart repair, right shoulder with history of tendinitis with subluxation. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.204 (2015). 2. Resolving all reasonable doubt in favor of the Veteran, for the entire increased rating period on appeal from July 31, 2009, the date of claim, the criteria for a disability rating of 20 percent for the service-connected left knee patellofemoral pain syndrome have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.1, 4.3, 4.7, 4.10, 4.14, 4.21, 4.59, 4.71a, Diagnostic Code 5262 (2015). 3. Resolving all reasonable doubt in the Veteran's favor, from August 19, 2011, the criteria for a disability rating of 10 percent for the service-connected residual scar status post right shoulder surgery have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.14, 4.118, Diagnostic Codes 7800-7806 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal of Right Shoulder Rating Issue on Appeal Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege a specific error of fact or law in the determination being appealed. A veteran may withdraw a substantive appeal by telling the Board of the decision to withdraw either in writing or on the record at a Board personal hearing. 38 C.F.R. § 20.204. Per the May 2016 Travel Board hearing testimony, and per a May 2016 written Statement in Support of Claim, via VA Form 21-4138, the Veteran asked that the issue of an increased disability rating in excess of 40 percent for degenerative joint disease, status post capsule shift/Bankart repair, right shoulder with history of tendinitis with subluxation be withdrawn. As the Veteran has withdrawn the appeal regarding the issue of an increased disability rating in excess of 40 percent for degenerative joint disease, status post capsule shift/Bankart repair, right shoulder with history of tendinitis with subluxation, there remain no allegations of errors of fact or law for appellate consideration as to this issue. Accordingly, the Board does not have jurisdiction to review this issue, and the issue of an increased disability rating in excess of 40 percent for degenerative joint disease, status post capsule shift/Bankart repair, right shoulder with history of tendinitis with subluxation will be dismissed. Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice should be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the instant decision, the Board grants an increased disability rating of 20 percent for the service-connected left knee patellofemoral pain syndrome, and an increased disability rating of 10 percent for the service-connected residual scar status post right shoulder surgery from August 19, 2011, which is a complete grant as to those rating issues, and remands the remaining issue on appeal. As such, further discussion of VA's duties to notify and to assist is unnecessary. Disability Rating Law and Regulation Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25 (2015). Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14 (2015). It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, 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. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20 (2015). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rating Left Knee Patellofemoral Pain Syndrome VA's Office of General Counsel has provided guidance concerning increased rating claims for knee disorders. VA's General Counsel stated that compensating a claimant for separate functional impairment under Diagnostic Code 5257 and 5003 does not constitute pyramiding. See VAOPGCPREC 23-97. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban, 6 Vet. App. 259, 262. In VAOPGCPREC 9-98, VA's General Counsel reiterated that, if a veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also x-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. In addition, the General Counsel considered a hypothetical situation in which a knee disability was evaluated under Diagnostic Code 5259 that was productive of pain, tenderness, friction, osteoarthritis established by x-rays, and a slight loss of motion. For the purposes of the hypothetical, it was assumed that Diagnostic Code 5259 did not involve limitation of motion. Given the findings of osteoarthritis, the General Counsel stated that the availability of a separate evaluation under Diagnostic Code 5003 in light of sections 4.40, 4.45, 4.59 must be considered. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Absent x-ray findings of arthritis, limitation of motion should be considered under Diagnostic Codes 5260 and 5261. The claimant's painful motion may add to the actual limitation of motion so as to warrant a rating under Diagnostic Codes 5260 or 5261. VA General Counsel has interpreted that, if a musculoskeletal disability is rated under a specific diagnostic code predicated upon limitation of motion - Diagnostic Code 5258, as applicable here, in that it contemplates limitation of motion in the form of joint "locking" (see Firestein, Kelley's Textbook of Rheumatology 571 (9th ed. 2012) ("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., Diagnostic Code 5257) would not constitute pyramiding. See VAOPGCPREC 23-97, 9-98. The converse is also true. The appropriate diagnostic codes for rating limitation of motion of the right and left knees are Diagnostic Codes 5260 and 5261. 38 C.F.R. § 4.71a. Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. In VAOPGCPREC 9-2004, the VA General Counsel interpreted that when considering Diagnostic Codes 5260 and 5261 together with 38 C.F.R. § 4.71, a veteran may receive a rating for limitation in flexion only, limitation of extension only, or, if the 10 percent criteria are met for both limitations of flexion and extension, separate ratings for limitations in both flexion and extension under Diagnostic Code 5260 (leg, limitation of flexion) and Diagnostic Code 5261 (leg, limitation of extension). Under Diagnostic Code 5260, limitation of knee flexion is rated 30 percent disabling where flexion is limited to 15 degrees; 20 percent disabling where flexion is limited to 30 degrees; 10 percent disabling where flexion is limited to 45 degrees; and noncompensable where flexion is limited to 60 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, limitation of knee extension is rated 50 percent disabling where extension is limited to 45 degrees; 40 percent disabling where extension is limited to 30 degrees; 30 percent disabling where extension is limited to 20 degrees; 20 percent disabling where extension is limited to 15 degrees; 10 percent disabling where extension is limited to 10 degrees; and noncompensable where extension is limited to 5 degrees. 38 C.F.R. § 4.71a. Diagnostic Code 5257 contemplates "other impairment" of the knee including recurrent subluxation or lateral instability. Under Diagnostic Code 5257, where impairment is severe, moderate or slight, disability evaluations of 30, 20, and 10 percent are assigned, respectively. 38 C.F.R. § 4.71a. Diagnostic Code 5262 contemplates impairment of the tibia and fibula, assigning a 40 percent rating for nonunion of the tibia and fibula, and 10, 20, and 30 percent ratings for slight, moderate or marked knee or ankle disabilities. Id. The words "slight," "moderate," "severe," and "marked" as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6 (2015). Under Diagnostic Code 5256, disability ratings are assigned when ankylosis is present. 38 C.F.R. § 4.71a. Diagnostic Codes 5258 and 5259 provide for disability ratings when semilunar cartilage is dislocated and/or removed and related symptoms are present. Id. Symptoms contemplated by Diagnostic Code 5258 include locking, pain, and effusion into the joint. Finally, a 10 percent disability rating is assigned under Diagnostic Code 5263 when genu recurvatum is identified. Id. Diagnostic Code 5003 provides that degenerative arthritis established by x-ray findings is to be evaluated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, an evaluation of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is assignable for x-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups. A 20 percent evaluation is assignable for x-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups, with occasional incapacitating episodes. Id. The Veteran's left knee disability is currently rated as 10 percent disabling under Diagnostic Code 5257 for mild instability. 38 C.F.R. § 4.71a. After a review of all the evidence of record, the Board finds that, for the entire increased rating period on appeal, from July 31, 2009, the date of claim, the service-connected left knee patellofemoral pain syndrome has more nearly approximated malunion of the tibia and fibula, with moderate knee disability characterized by recurrent patellar dislocation, painful limitation of motion, locking, swelling, and instability, without ankylosis or dislocation of the semilunar cartilage. The report from a July 2009 VA treatment record reflects that the Veteran complained of pain and swelling in the left knee. In a March 2010 statement, the Veteran conveyed left knee symptoms including pain, swelling, and locking. The Veteran also advanced having instability resulting in falling down and/or loss of balance. In a subsequent March 2011 statement, the Veteran again stated having pain and swelling, and also conveyed needing a knee brace and cane to walk. Per the August 2011 substantive appeal, via VA Form 9, the Veteran advanced having painful motion, locking, and swelling. Lay statements from the Veteran's friends and family have conveyed similar symptoms. The Veteran received a VA knee examination in December 2009. Per the examination report, the Veteran advanced left knee pain ranging from two to five out of ten on the pain scale. There was occasional locking and swelling, and the knee was often stiff in the morning. The Veteran further conveyed having some instability and noted almost falling on several occasions. Upon examination in December 2009, the left knee had zero to 138 degrees of flexion. There was mild crepitans and minimal tenderness. The VA examiner noted no additional loss of range of motion due to painful motion, weakness, impaired endurance, incoordination, or instability. A second VA knee examination was conducted in August 2011. Again the Veteran advanced having increased knee pain, peaking at a nine out of ten on the pain scale. Further, the Veteran conveyed increased locking and swelling. Upon examination gait was noted as abnormal. Range of motion testing reflected left knee extension to zero degrees and flexion to 90 degrees. No additional loss of range of motion was observed due to painful motion, weakness, impaired endurance, or incoordination. Instability was not noted. In a December 2015 letter, the Veteran asked to reschedule an upcoming Board hearing due to a scheduled left knee surgery. The Veteran subsequently received a Board videoconference hearing in May 2016. At the hearing, the Veteran testified that the knee would lock up while going up and down stairs. The Veteran also testified to having balance and stability issues, advancing that the knee would wobble and require the use of a cane for mobility. The Veteran also testified to using a knee brace. The Veteran testified that an orthopedist advised using the brace consistently due to stability issues. Further, the Veteran testified to having "cartilage issues," and that the kneecap and bones would scrape together due to these issues. The Veteran subsequently submitted a June 2016 private knee examination report. Per the examination report, the original injury involved valgus stress and patella dislocation. Eventually the Veteran received left knee surgery. Symptoms advanced by the Veteran included pain, locking, stiffness, weakness, numbness, tingling, swelling, grinding, catching, popping, and instability. The Veteran uses both a cane and a brace. Range of motion testing in June 2016 reflected left knee extension to zero degrees and flexion to 70 degrees. Repetitive use testing was not conducted due to pain. Functional loss included less movement than normal, pain on movement, and swelling. The examiner opined that during a flare-up of pain the left knee flexion would be further limited to 60 degrees. Upon examination in June 2016, there was no muscle atrophy or ankylosis. The private examiner also found no history of recurrent subluxation or lateral instability. Joint stability testing was subsequently performed and the Veteran was found not to have left knee joint instability. Further, the private examiner noted that the Veteran has never had a "meniscus condition;" however, the private examiner did find that the Veteran had impairment of the tibia and fibula, specifically, recurrent patellar dislocation, and that the severity of the disability was moderate. After a review of all the evidence, both lay and medical, the Board finds that from July 31, 2009, the date of claim, the Veteran's service-connected left knee patellofemoral pain syndrome has more nearly approximated malunion of the tibia and fibula, with moderate knee disability characterized by recurrent patellar dislocation, painful limitation of motion, locking, swelling, and instability, without ankylosis or dislocation of the semilunar cartilage. Resolving all reasonable doubt in favor of the Veteran, the Board finds such symptomatology to more nearly approximate a 20 percent disability rating under Diagnostic Code 5262. 38 C.F.R. § 4.71a. As such, the Board finds a 20 percent disability rating is warranted under Diagnostic Code 5262 from July 31, 2009, the date of claim for an increased rating. 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5262; DeLuca, 8 Vet. App. 202. The Veteran may not be assigned separate ratings under both Diagnostic Code 5257 (instability) and Diagnostic Code 5262 (malunion of the tibia/fibula). Under Diagnostic Code 5262, 10, 20, and 30 percent disability ratings are assigned for malunion of the tibia and fibula with slight, moderate, and marked "knee or ankle disability," respectively. 38 C.F.R. § 4.71a. A 40 percent disability rating is warranted for nonunion of the tibia and fibula with loose motion, requiring a brace. Malunion is "union of the fragments of a fractured bone in a faulty position." Dorland's Illustrated Medical Dictionary 1115 (31st ed. 2007). Nonunion is the "failure of the ends of a fractured bone to unite." Id. at 1309. Disability from malunion of the tibia shaft is produced mainly by rotational deformity, lateral and posterior bowing, and usually some degree of shortening. See Canale & Beaty, Campbell's Operative Orthopaedics 2931 (12th ed. 2012). Symptoms may include ankle, knee, or back pain, gait disturbances, and a cosmetically unacceptable deformity. Id. A malunited fracture may also impair function and interfere with proper balance or gait in the lower extremities. Id. at 2971. Looking to the plain meaning of the terms used in the rating criteria, "disability" is defined as "incapacity or lack of ability to function normally" that may be either physical, mental or both, including anything that causes such incapacity. Dorland's Illustrated Medical Dictionary at 533. Thus, the requirement of knee or ankle "disability" under Diagnostic Code 5262 is broad enough to encompass symptoms including limitation of motion due to pain as well as instability and locking. The Court has held that the regulatory definition of "disability" is the "impairment of earning capacity resulting from such diseases or injuries and their residual conditions." Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991). Further "impairment" is "any abnormality of, partial or complete loss of, or the loss of the function of, a body part, organ, or system" that is "due directly or secondarily to pathology or injury and may be either temporary or permanent." Dorland's Illustrated Medical Dictionary at 936. Thus, the requirement of knee or ankle "disability" under Diagnostic Code 5262 is broad enough to encompass all symptoms, including pain, limitation of motion, stiffness, swelling, and instability. The other requirement under Diagnostic Code 5262 is that there be malunion or nonunion of the tibia and fibula. The Veteran may not be assigned separate ratings under both Diagnostic Code 5262 and Diagnostic Code 5257 in this case, as the rating criteria under Diagnostic Code 5262 is broad enough to encompass the symptoms of instability and subluxation manifested by the left knee patellofemoral pain syndrome that is currently rated under Diagnostic Code 5257. As noted above, malunion of the tibia and fibula interfere with proper balance or gait in the lower extremity. See Canale & Beaty, Campbell's Operative Orthopaedics at 2971. Instability is a "lack of steadiness or stability." Dorland's Illustrated Medical Dictionary at 958. 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 disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also 38 C.F.R. § 4.14. The Veteran's knee disability has been manifested by malunion/nonunion with instability, and recurrent patellar dislocation, painful limitation of motion, locking, and swelling. If instability is rated under Diagnostic Code 5262 as a symptom of the malunited fracture, then, to avoid pyramiding, the separate rating for instability under Diagnostic Code 5257 could not be continued, as to do so would compensate the Veteran twice for the overlapping symptomatology of instability. See 38 C.F.R. § 4.14; Esteban, 6 Vet. App. at 261-62. Review of the evidence of record reflects that the Veteran's left knee disability has been manifested by malunion of the tibia/fibula with instability, among other symptoms. As noted above, the Veteran is currently in receipt of a 10 percent rating under Diagnostic Code 5257 for slight instability of the knee; however, Diagnostic Code 5262 allows for higher (with a 40 percent maximum) disability ratings for malunion or nonunion of the tibia and fibula with knee or ankle disability. The assignment of a particular diagnostic code 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 diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). It is permissible to switch Diagnostic Codes to reflect more accurately a claimant's current symptoms. See also Read v. Shinseki, 651 F. 3d 1296, 1302 (Fed. Cir. 2011) (holding that service connection for a disability is not severed when the Diagnostic Code associated with it is changed to determine more accurately the benefit to which a veteran may be entitled). As such, the Board finds that, as higher potential and actual ratings are available under Diagnostic Code 5262, it is more advantageous to the Veteran to be rated under these rating criteria. As noted above, separate ratings may not be assigned under Diagnostic Codes 5257 and 5262, as to do so would constitute pyramiding; therefore, because the Board is granting the higher 20 percent rating under Diagnostic Code 5262, the 10 percent rating under Diagnostic Code 5257 will be discontinued. Moreover, this change in Diagnostic Code 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 Board has also considered whether an increased disability rating was warranted at any point during the one year period prior to July 31, 2009, the date of claim. See Hart, 21 Vet. App. 505. No evidence was received by VA indicating that the Veteran first became entitled to an increased disability rating for the left knee disability between July 2008 and July 2009, the one year period prior to receipt of claim for increase. As such, the appropriate effective date for the increased disability rating of 20 percent for left knee patellofemoral pain syndrome is July 31, 2009, the date of receipt of claim for increase. See 38 U.S.C.A. § 5110 (b)(2) (West 2014); 38 C.F.R. § 3.400(o) (2015); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). The appeal for an increased disability rating for the service-connected left knee patellofemoral pain syndrome is fully granted in this Board decision. As discussed above, at the May 2016 Board videoconference hearing the Veteran testified that a 20 percent disability rating would fully satisfy the appeal as to the left knee rating issue. Thus, this is a full grant of the benefits sought on appeal as to this issue. This is distinguished from a case where a veteran does not express satisfaction with a partial increased rating during an appeal that is less than the maximum schedular rating. See A.B. at 39 (recognizing that a claimant may limit the claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum allowed by law for a particular service-connected disability). The Board finds the waiver of the remaining aspects of the appeal for an increased disability rating for left knee patellofemoral pain syndrome was knowing, intelligent, and consistent with the evidence of record. Because a 20 percent increased disability rating for left knee patellofemoral pain syndrome was granted for the period from July 31, 2009, the date of claim, the Veteran has limited this appeal in both extent and time by withdrawing the aspects of the appeal that encompassed a higher disability rating in excess of 20 percent. See 38 C.F.R. § 20.204 (2015) (providing that an appellant may withdraw an issue at any time before the Board issues a final decision). For these reasons, any question of an increased disability rating in excess of 20 percent is rendered moot with no remaining questions of law or fact to decide. See 38 U.S.C.A. § 7104 (West 2014); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). Finally, the Board has considered whether the Veteran may be entitled to any separate compensable disability ratings. As discussed above, a separate compensable rating is not warranted for instability under Diagnostic Code 5257 as such symptomatology is contemplated in the 20 percent rating under Diagnostic Code 5262, and such a separate compensable rating would result in improper pyramiding. Further, range of motion testing reflects that the Veteran is not entitled to a compensable disability rating for painful flexion and/or extension, even considering painful limitation of motion with flare-ups of pain. There is also no indication of compensable scarring resulting from any left knee surgery. As such, no additional separate compensable rating is warranted for any disability stemming from the service-connected left knee patellofemoral pain syndrome. Rating Right Shoulder Scar Burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear in an area or areas of at least 6 square inches (39 sq. centimeters (cm.)) but less than 12 square inches (77 sq. cm.) will be assigned a 10 percent rating. A scar in an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.) will be assigned a 20 percent rating. A scar in an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.) will be assigned a 30 percent rating. A scar in an area or areas of at least 144 square inches (929 sq. cm.) or greater will be assigned a 40 percent rating. Note (1) indicates that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801 (2015). Burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear in an area or areas of 144 square inches (929 sq. cm.) or greater will be assigned a 10 percent rating. Note (1) indicates that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7802 (2015). One or two scars that are unstable or painful will be assigned a 10 percent rating. Three or four scars that are unstable or painful will be assigned a 20 percent rating. Five or more scars that are unstable or painful will be assigned a 30 percent rating. Note (1) indicates that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the rating that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2015). Any disabling effects of other scars (including linear scars), and other effects of scars rated under Diagnostic Codes 7800, 7801, 7802, and 7804 not considered in a rating provided under Diagnostic Codes 7800 through 7804 are to be rated under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2015). The Veteran's right shoulder scarring is currently rated under Diagnostic Code 7804, and prior to August 19, 2011, was assigned 10 percent disability rating for painful scarring. As discussed above, during the course of this appeal the rating was changed to noncompensable from August 19, 2011. After a review of all the evidence of record, the Board finds that, for the entire rating period on appeal, including from August 19, 2011, the service-connected residual scar (status post right shoulder surgery) was painful. The Veteran received a VA examination in December 2009. The examination report reflects that at that time the right shoulder scar was 1 cm. wide, 10 cm. long, and was well healed and nontender. There was no erythema, hyperemia, or ecchymosis about the right shoulder. The scar was not adhered to the underlying tissue, and there was no ulceration or significant keloid formation. A second VA examination was conducted in August 2011. Per the examination report, the VA examiner noted that the Veteran denied pain, discomfort, or redness in the right shoulder scar. Upon examination the scar was superficial, nontender, stable, and smooth, without elevation or depression. The scar measured four inches by 2 inches and was a bit lighter than normal skin color. There was no skin breakdown, ulceration, underlying tissue loss, or adherence in the restriction of range of motion. At the May 2016 Board videoconference hearing, the Veteran credibly testified to having discomfort in the right shoulder scar for the entire relevant rating period on appeal, including the period from August 19, 2011. While the pain was not an aching and/or throbbing pain, there was a stinging pain, likened to a pinched nerve. The pain would occur about every other day. The Veteran did testify to thinking the scar was unstable; however, considering the testimony and all the other evidence of record, it appears that the scar is not unstable. Rather, the Veteran has a tendency to scratch the scar until it bleeds. Having reviewed all the evidence of record, both lay and medical, and resolving all reasonable doubt in favor of the Veteran, the Board finds that for the entire rating period on appeal, including from August 19, 2011, the service-connected residual scar (status post right shoulder surgery) was painful. While the VA examiners found that the right shoulder scar was not painful, the Veteran's credible testimony as to the presence of pain has put the issue in equipoise. As such, resolving all reasonable doubt in favor of the Veteran, the evidence reflects that for the entire relevant rating period, which includes the period from August 19, 2011, the Veteran's right shoulder scarring manifested as a single painful scar, which warrants a 10 percent disability rating under Diagnostic Code 7804. 38 C.F.R. §§ 4.3, 4.7, 4.124a. The appeal for an increased disability rating for the service-connected residual scar status post right shoulder surgery is fully granted in this Board decision. As discussed above, at the May 2016 Board videoconference hearing the Veteran testified that a 10 percent disability rating from August 19, 2011 would fully satisfy the appeal as to the right shoulder scarring rating issue. Thus, this is a full grant of the benefits sought on appeal as to this issue. This is distinguished from a case where a veteran does not express satisfaction with a partial increased rating during an appeal that is less than the maximum schedular rating. See A.B. at 39 (recognizing that a claimant may limit the claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum allowed by law for a particular service-connected disability). The Board finds the waiver of the remaining aspects of the appeal for an increased disability rating for residual scar status post right shoulder surgery was knowing, intelligent, and consistent with the evidence of record. Because a 10 percent increased disability rating for residual scar status post right shoulder surgery was granted for the period from August 19, 2011, the date of reduction from 10 to 0 percent, the Veteran has limited this appeal in both extent and time by withdrawing the aspects of the appeal that encompassed a higher disability rating in excess of 10 percent at any point during the relevant period on appeal. See 38 C.F.R. § 20.204 (2015) (providing that an appellant may withdraw an issue at any time before the Board issues a final decision). For these reasons, any question of an increased disability rating in excess of 10 percent is rendered moot with no remaining questions of law or fact to decide. See 38 U.S.C.A. § 7104 (West 2014); Sabonis, 6 Vet. App. at 430 (where the law is dispositive, the claim must be denied due to a lack of legal merit). Extraschedular Rating Legal Criteria The Board has also considered whether referral for an extraschedular rating is warranted for the service-connected left knee disability and right shoulder scarring. Ratings shall be based as far as practicable upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular ratings are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: 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 as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). As discussed above, concerning the appeal for an increased disability rating in excess of 10 percent for left knee patellofemoral pain syndrome and an increased disability rating for residual scar status post right shoulder surgery in excess of 10 percent prior to August 19, 2011, and in excess of 0 percent (noncompensable) from August 19, 2011, the Veteran has limited this appeal in both extent and time by withdrawing the aspects of the appeal that encompassed a disability rating in excess of 20 percent for left knee patellofemoral pain syndrome and in excess of 10 percent for residual scar status post right shoulder surgery. As such, the full grant of benefits for the service-connected left knee disability and right shoulder scarring for the relevant rating period in this case also effects withdrawal of any extraschedular rating considerations. See 38 C.F.R. § 20.204. For these reasons, any questions of an extra-schedular disability rating for left knee patellofemoral pain syndrome and residual scar status post right shoulder surgery are also rendered moot with no remaining questions of law or fact to decide. The issue of entitlement to a TDIU is addressed below. ORDER The appeal for an increased disability rating in excess of 40 percent for degenerative joint disease, status post capsule shift/Bankart repair, right shoulder with history of tendinitis with subluxation, is dismissed. For the rating period from July 31, 2009, the date of claim, an increased disability rating of 20 percent for the service-connected left knee patellofemoral pain syndrome is granted. From August 19, 2011, a disability rating of 10 percent for residual scar status post right shoulder surgery is granted REMAND Issuance of Statement of the Case (SOC) on TDIU Issue The Court has directed that, where a veteran has submitted a timely notice of disagreement (NOD) with an adverse decision and the RO has not subsequently issued a SOC addressing the issue, the Board should remand the issue(s) to the RO for issuance of a SOC. Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). In a June 2011 rating decision, the RO denied entitlement to a TDIU. A July 2011 Report of General Information, via VA Form 21-0820, indicates that the Veteran expressed dissatisfaction with the denial. Further, also in July 2011, the Veteran wrote an email to the President of the United States expressing disagreement with the TDIU denial. This email was subsequently forwarded to VA. Then, in the August 2011 substantive appeal as to the rating issues on appeal, via VA Form 9, the Veteran again appeared to express disagreement with the June 2011 TDIU denial. Considering the above, the Board finds that the Veteran has submitted a timely NOD to the issue of entitlement to a TDIU. To date, the RO has not issued a SOC with respect to the issue of entitlement to a TDIU; therefore, the issue must be remanded for the issuance of a SOC. See 38 C.F.R. § 19.9(c) (2015), codifying Manlincon, 12 Vet. App. 238. Accordingly, the issue of entitlement to a TDIU is REMANDED for the following action: Issue a statement of the case addressing the issue of entitlement to a TDIU. The Veteran and representative should be given the appropriate opportunity to respond to the SOC. The RO should advise the Veteran that the claims file will not be returned to the Board for appellate consideration of this issue following the issuance of the SOC unless the appeal is perfected by a substantive appeal. The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs