Citation Nr: 1802596 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 11-23 779 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a lumbar spine disorder. 2. Entitlement to service connection for a left hand disorder due to a service connected disability. 3. Entitlement to a rating in excess of 10 percent for a right knee disability. 4. Entitlement to a rating in excess of 10 percent for a left knee disability. 5. Entitlement to a total disability rating on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD N.Yeh, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from June 1963 to June 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office in Houston, Texas. This matter was previously remanded for additional medical opinion in January 2017. It is now back before the Board for appellate consideration. The Veteran testified at a Board hearing in October 2013. A copy of the hearing transcript is associated with the record. The issue of TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACTS 1. The Veteran's degenerative disc disease did not have onset or related to his military service. 2. The weight of the evidence is against finding that the Veteran's left wrist is related to the Veteran's service connected left finger. 3. From April 26, 2017, the Veteran's service connected right knee disability has been manifested by subjective complaints of pain, weakness, crepitus, and extension limited to 10 degrees. 4. From April 26, 2017, the Veteran's service connected left knee disability has been manifested by subjective complaints of pain, weakness, crepitus, and extension limited to 10 degrees. 5. From September 15, 2015, the Veteran's right knee condition manifested by a dislocated semilunar cartilage. 4. From July 6, 2015, the Veteran's left knee condition manifested by a dislocated semilunar cartilage. CONCLUSIONS OF LAWS 1. The criteria for service connection for a low back disability, to include degenerative disc disease, are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 2. The criteria for entitlement to service connection for a left wrist condition have not been met. 38 U.S.C. §§ 1101, 1110, 1131 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.317 (2017). 3. The criteria for a rating of 10 percent for a right knee disability, manifested by limitation of extension, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.321, 4.1-4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71 (a), Diagnostic Code 5261 (2017). 4. The criteria for a rating of 10 percent for a left knee disability, manifested by limitation of extension, have been met. 38 U.S.C.§§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.321, 4.1-4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71 (a), Diagnostic Code 5261 (2017). 5. The criteria for a separate rating of 20 percent from September 15, 2015 for medial meniscus degeneration of the right knee have been met. 38 U.S.C. §§1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.321, 4.1-4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71 (a), Diagnostic Code 5258 (2017). 6. The criteria for a separate rating of 20 percent from July 6, 2015 for medial meniscus degeneration of the left knee have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.321, 4.1-4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71 (a), Diagnostic Code 5258 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, including apprising him of the information and evidence he is expected to provide versus that VA will obtain for him. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran was provided this required notice and information regarding his claim for service connection for his wrist and low back condition, as well as his claim for increase rating in a letter dated October 20, 2009. He has not alleged any notice deficiency during the processing and adjudication of his claims. Next, VA has a duty to assist the claimant in the development of the claim. This duty includes assisting him in the procurement of service treatment records, private treatment records, providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein. The Veteran was afforded a VA examination in October 2005, September 2005, July 2010, November 2013, December 2014, and April 2017. The Board finds that the VA examination reports are adequate to decide the case because it is predicated on a review of the claims file, as well as on an examination during which a history was solicited from the Veteran. Moreover, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disabilities since he was last examined in April 2017. See 38 C.F.R. § 3.327(a) (2016). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (noting that the passage of time alone, without an allegation of worsening, does not warrant a new examination); VAOPGCPREC 11-95 (April 7, 1995). II. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38. U.S.C. § 1110; 38 C.F.R. § 3.303 (a)(2016). "To establish a right to compensation for a present disability, a Veteran must show," (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e. a nexus, between the present disability and the disease or injury incurred or aggravated during service." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury, or that service-connected disease or injury has aggravated the nonservice-connected disability for which service connection is sought. See 38 C.F.R. § 3.310 (2016). Service connection for certain chronic diseases, such as arthritis, will be rebuttably presumed if manifest to a compensable degree within one year after separation from active service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Moreover, for such diseases, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post- service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Continuity of symptomatology applies only to those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309 (a) (2017). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Lay statements, such as those made by the Veteran, are considered to be competent evidence when describing the features or symptoms of an injury or illness. Falzone v. Brown, Vet. App. 398 (1995). However, once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). a. Low Back Disability The Veteran contends that his back condition was caused by his service connected bilateral knee condition. Based on his enlistment examination dated June 1963, the Veteran entered service with no outstanding back or spinal conditions. As a mechanic in the United States Army, the Veteran stated that his duties required the heavy lifting of tools, tracks, and changing damaged tires. He reported a complaint of low back pain in December 1964. Then in 1966, the Veteran injury to his back when he jumped off a truck. His Service Treatment Records (STRs) dated February 1966 reported an occurrence of a mild back strain. However, most of the recorded injuries from that incident were related to his thighs and knees. A report of medical history upon separation from service dated May 1966 reported that the Veteran had utilized a back brace for support for approximately 6 months prior to entry to service. However, his separation examination showed normal spinal conditions. The Veteran has extensive private treatment records documenting his lumbar condition. After service, in August 2005, the Veteran's radiology report of his lumbosacral spine showed multiple degenerative osteophytosis without significant disc narrowing. Alignment was maintained throughout and no focal bone lesions were seen. Then in a later evaluation in October 2005, some degenerative changes were seen involving the lumbar spine with osteophytosis involving the posterior element of L5 and anterior displacement of L5 over S1. A December 2009 MRI revealed minimal diffuse disc bulging at L2-L3, moderate diffuse disc bulging in L3-L4, osteoarthritic hypertrophy at L4-L5, and mild bilateral osteoarthritic hypertrophy of the facet joints. In a July 2010 VA examination the Veteran reported to the examiner that his back condition began with mild back pain and stiffness. Since then, the pain has progressively worsened and motion has become significantly restricted. The VA examiner documented that the Veteran denied any problems with the thoracolumbar spine prior to his military service. At the time of the evaluation, the Veteran reported decreased motion, fatigue, stiffness, weakness, spasm, and pain. His flexion was 60 degrees; extension was 20 degrees, left lateral flexion at 20 degrees, left rotation at 30 degrees, right lateral flexion at 20 degrees, and right lateral rotation at 30 degrees. Based on the Veteran's physical examination and MRI, the examiner diagnosed the Veteran with a lumbar spine osteoarthritis/degenerative joint disease. In addressing whether or not the Veteran's service connected knee disabilities cause his back disability, the examiner opined that the Veteran's lumbar spine disease is not caused or aggravated by his service connected bilateral knee condition. In his rationale, the examiner explained that the Veteran has normal age related degenerative changes in the lumbar spine and there is no scientific evidence that degeneration of the lumbar spine is caused by or aggravated by his bilateral knee osteoarthritis. In April 2011, the Veteran told his private physician that he had twisted his low back whilst getting into his truck in March 2011. He also told the physician that he has a history of low back pain that existed many years prior and that back in 1980, a physician had told him that the Veteran had a birth defect of the lower back. The Veteran's MRI showed a huge extruded disc herniation to the left side behind L5, with severe neurological pain and weakness that radiate down to his leg. He also showed similar symptoms on the right side. The Veteran reported that the pain was severe to the extent that he has difficulty walking. The physician recommended surgery to treat his disc protrusion. In May 2011, he was diagnosed with lumbar stenosis, and disc herniation. That month, he underwent a laminectomy and discectomy of the lumbar spine. The Board notes that in his July 2011 statement in support of his back claim, the Veteran admitted that in March 2011, he hurt his back when he was sitting in the back of his pick-up truck, reaching for a toolbox. As he attempted to climb out of the truck, he had put too much pressure on his knee, causing it to give out, hurting his back. Since then, he has made multiple visits to doctors for treatment. He underwent surgery in May 2011, given a back brace and attended physical therapy. He was able to return to work shortly after. When the Board reviewed the matter in September 2014, it found that the question regarding whether or not the Veteran's back condition preexisted service remained unaddressed. Thus, the matter was remanded for an examiner to assess his preexisting condition and whether or not it was aggravated. The Veteran underwent a VA examination in November 2014. There, the Veteran reported a back condition that existed when he was 8 years old. Upon examination, his flexion was 80 degrees, with pain manifesting at 60 degrees. His extension was limited to 20 degrees with pain, his right lateral flexion was at 10 degrees with pain, and his left lateral flexion was 10 degrees with pain. His left and right rotation was at 20 degrees with pain. The examiner concluded that the Veteran had less movement than normal, accompanied by pain. A muscle strength and reflex test showed normal results. There was no evidence of neurological abnormalities or intervertebral disc syndrome. In conclusion, the examiner found that the Veteran's back disability was at least as likely as not incurred in or caused by in-service injury, event or illness. In his rationale, the examiner explained that the Veteran had an injury of back strain from jumping off a truck in service and was treated. Over time, he has likely developed a lumbar degenerative joint disease from this "repeated injury," which led to surgery in May 2011. However, the reference to the "repeated injury was not explained." Contrary to the September 2014 Board remand's directives, the examiner did not make a finding pertaining to the Veteran's preexisting back condition. In January 2017, the Board found that the November 2014 examiner was inconsistent in his findings and ordered the matter remanded for a medical opinion addendum. The Veteran was then scheduled for another VA examination in April 2017. That examiner opined that the Veteran's back condition is less likely than not related to or aggravated by the Veteran's service. In his rationale, the examiner explained that the Veteran's STRs do not indicate a complaint of preexisting back condition because his induction examination in June 1963 did not indicate a back problem. The Veteran was presumed sound upon entry. While the examiner acknowledged the two records indicating a back problem in 1964 and 1966, it was the examiner's opinion that those conditions were treated without residuals or sequelae. Immediately after treatment, the Veteran was instructed to return to sick call if his condition persisted. Since there were no additional follow up records about a back problem, the examiner opined that those conditions have resolved in service. Unlike the November 2014 examiner, this examiner found no documentation of a repeated trauma or injury to the Veteran's back. Furthermore, in his July 2011 statement, the Veteran admitted that he hurt his back in March 2011 when he was getting a toolbox out of his truck leading to surgery. The VA examiner was also unconvinced by the Veteran's statements pertaining to a preexisting back condition. While the Veteran stated that he had a back brace prior to entering into service, the Veteran made no indication of it during his induction examination. The examiner found no documentation for support the Veteran's self-reported preexisting lower back condition. The examiner also concluded that the Veteran's back condition was not related to the Veteran's service connected bilateral knee osteoarthritis. He explained that while injuries of conditions of the extremities may cause a major problems in the low back region, this occurrence is rare because it requires that the damage to the extremities results in a major displacement of the center of gravity of the body while walking. Most people have some sort of a leg length discrepancy (one leg shorter than the other) which generally goes unnoticed because the discrepancy is less than four or five centimeters. This is not enough to cause a displacement of the body's center of gravity. Thus, for the Veteran to have developed lower back pain due to his service connected bilateral knee condition, the condition would have had to be so substantial that it significantly displace the center gravity of his body while walking. For his low back to be affected his knees must have sustained muscle or nerve damage that causes partial paralysis resulting in a limb discrepancy of more than four or five centimeters, enough to significantly alter the Veteran's gait pattern. Based on the reasons above, the Board finds that the probative medical evidence (July 2010, April 2014, January 2017 VA examination reports) of record does not support a conclusion of a nexus between the Veteran's back disability and service, and the Veteran's back disability and his service connected bilateral knee condition. The Board acknowledges that while the Veteran's service medical history dated January 1968 reported recurrent back pain prior to entry into service, the Board does not consider it a notation of a preexisting condition prior to military service. 38 C.F.R. § 3.304(b)(1). Thus, the Board finds that the Veteran was sound upon entry. While there were two recorded entry of back pain, the Veteran received treatment and later treatment records did not support a claim of continuous back pain. The Board can reasonably infer that whatever back pain the Veteran had experienced in service had resolved during service, before his separation. His separation examination in February 1966 showed no indication that the Veteran still suffered from that back injury. While the November 2014 VA examiner provided a positive nexus opinion between the Veteran's back disability and his service, the Board finds that the opinion did not reconcile the discrepancies between the Veteran's statements and STRs, and failed to discuss what the "repeated injuries" were. That opinion was found to be inadequate by the Board in September 2014 and required further clarification. Therefore, the Board affords that VA examination report little probative weight. While service connection may be granted for diseases such as arthritis under 38 C.F.R. §3.309(a), the disease must have manifested within one year after separation from service. In this case, there is no evidence of the continuity of symptomatology. After service, there was nothing that indicated complaints of back pain within that year following separation from service and several years thereafter. In fact, complaints of his back surfaced approximately 40 years after his separation. Thus, service connection under C.F.R. §3.309 for a low back condition is not warranted. The Board finds that while the Veteran is competent to report injury and symptoms, he is not competent to link his current low back disorder to service and his bilateral knee disability, as he lacks the requisite medical expertise. While a layperson is competent to report observable symptomology and diagnose a simple medical condition, the specific issue in this case falls outside the realm of a layperson's knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Accordingly, the Board assigns them no weight. Based on the foregoing discussion, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection. b. Left Wrist Condition The Veteran contends that his left wrist condition was caused by his left ring finger disability. The Veteran asserted that in 1964, he sustained a fracture of the left ring finger while working on a military unit. He was granted service connection for his left ring finger by a rating decision in November 2005. The Veteran was afforded a VA examination in September 2005. The Veteran stated to the examiner that the condition existed since 1964 from a fracture of the left ring finger. Upon examination of the left hand, there was no radiographic evidence of fractures, dislocations, radiopaque foreign bodies, soft tissue or joint space abnormalities. The examiner found a radiographically normal hand. The range of motion of his left wrist show a slight limited movement compared to his right wrist. His dorsiflexion was 70 degrees, palmar flexion at 70 degrees, radial deviation at 25 degrees, and ulnar deviation at 45 degrees. His right wrist show a dorsiflexion of 70 degrees, palmar flexion at 80 degrees, radial deviation at 20 degrees, and ulnar deviation at 45 degrees. His left hand x-rays results were within normal limits. In a follow up medical addendum opinion, the examiner added that it was her opinion that the slight restricted range of motion in the left wrist was not related to the left ring finger fracture. In a July 2010 VA examination report, an evaluation of the Veteran's wrist revealed that he had active movement against full resistance, scoring 5 out of 5 in wrist flexion, wrist extension, and thumb opposition. During the April 2011 VA examination, the Veteran reported to the examiner that after he sustained the left ring finger fracture, he experienced progressive numbness and tingling in the left hand. He reported no decreased grip or loss of dexterity. Upon review of the Veteran's treatment records, the examiner noted the in-service fracture of the left right proximal phalanx with no functional sequelae. The examiner found no records of continued visits after his finger was treated by casting. Upon physical examination, the examiner found no ankylosis or deformity. The Veteran demonstrated complete range of motion symmetrically in all fingers, thumbs, and both hands. Examination for cubital tunnel syndrome shows subluxation of the ulnar nerve at approximately 90 degrees, tenderness, and a slightly positive Tinel's. However, there was no distal weakness of the interosseous muscles, and two point discrimination intact at 5 mm. After two sensory studies to the left ulnar nerve, the examiner found no evidence to suggest a left ulnar neuropathy. In conclusion, the examiner diagnosed the Veteran with left cubital tunnel syndrome with subluxation of the ulnar nerve. The Veteran's STRs were negative for cubital tunnel syndrome treatment. Additionally, since the examiner found no complaints or treatment for this condition for approximately 40 years, he opined that the development of the cubital tunnel syndrome was not related to the healed fracture of the ring finger. The November 2014 VA examiner opined that the Veteran's left hand condition was less likely than not due to or was aggravated by his service connected finger fracture. During the evaluation, the examiner found no evidence of limited motion or evidence of painful motion of the fingers. There was also no indication of ankylosis or loss of muscle strength. In his rationale, the examiner explained that there was nothing in the Veteran's STRs to suggest contributing factors of weakness, fatigability, incoordination or pain that would affect the functional ability of the hand. The examiner however, reported that he was unable to provide any more information without speculating because he did not have the pertinent x-rays. Later that month, the Veteran submitted radiographic imaging of his left hand. In that November 2014 private treatment record, the Veteran's left hand x-ray showed subtle arthritic changes of the PIP and DIP joints, consistently with subtle osteoarthritis. The remaining joint spaces appeared negative. There were no acute fractures, dislocations, destructive bony lesions or foreign bodies. After the January 2017 Board remand, the Veteran was afforded another VA examination in April 2017 to address his left hand/wrist disability. That examiner acknowledged the February 1964 finger injury, which was treated by soaking in cold water and was restricted to limited duty for one day. The examiner noted that the finger injury had resolved in service without residuals or sequelae. Furthermore, the Veteran's separation examination in 1966 did not report any residual conditions related to the contusion to his finger. Thus, the examiner concluded that it is less likely than not that the Veteran's osteophytosis of the left hand is related to or was aggravated by the Veteran's in-service injury. In addition, because the Veteran's STRs is silent for a diagnosis or complaint consistent with a left ulnar nerve neuritis, the examiner also concluded that it is less likely than not that the Veteran's claim diagnosed cubital tunnel syndrome was related to or aggravated by his service connected finger. The Board acknowledges that the April 2017 examiner referred to the service connected finger as the "middle" finger, instead of the "ring" finger. There is no indication that the Veteran suffered an injury to both the middle finger and the ring finger in service. The record only show injury sustained to the ring finger, to which the Veteran has been service connected. Even with this discrepancy, the Board can reasonably presume an inconsequential error and that the April 2017 examiner meant to refer to the service connected finger as the "ring" finger. Based on the medical evidence of record, the Board can find no nexus between the Veteran's service connected finger and his current wrist condition. Thus, service connection is not warranted. III. Increase Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2016). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2016). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2016). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2016). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2016). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2017). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2017). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2017). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. The Veteran's left and right knee osteoarthrosis are currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5099-5014. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27 (2017). Here, the hyphenated diagnostic code indicates that the Veteran's current left and right knee disabilities are rated, by analogy, under the criteria for osteomalacia pursuant to Diagnostic Code 5014. Under Diagnostic Code 5014, osteomalacia is rated on limitation of motion of the affected parts as degenerative arthritis. 38 C.F.R. §§ 4.20, 4.71a (2017). Diagnostic Code 5014 is rated under limitation of motion of affected parts, as degenerative arthritis under Diagnostic Code 5003. The assignment of a particular diagnostic code to evaluate a disability is "completely dependent on the facts of a particular case." See 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, the diagnosis, and demonstrated symptomatology. Specifically, as will be discussed in detail below, the Veteran's symptoms involve limitation of motion, pain, and instability. However, the Veteran has already been granted a separate compensable rating of 20 percent for both left and right knee instability under Diagnostic Code 5257. Thus, symptoms involving instability or subluxation will not be included in this section. The Board has considered whether separate or increased evaluations were warranted under any other Diagnostic Codes pertaining to knee disabilities that would afford the Veteran a higher rating; however, there is no evidence of ankylosis of the knee to warrant a rating under Diagnostic Code 5256. There is no evidence of malunion or nonunion of the tibia and fibula to warrant a rating under Diagnostic Code 5262 for impairment of the tibia and fibula. There is no indication of symptomatic removal of semilunar cartilage under Diagnostic Code 5259. Diagnostic Code 5258 however, provides that a 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a , Diagnostic Code 5258 (2017). Diagnostic Code 5260 discusses disabilities rating for limited flexion. A noncompensable rating will be assigned for limitation of flexion of the leg to 60 degrees; a 10 percent rating will be assigned for limitation of flexion of the leg to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the leg to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the leg to 15 degrees. 38 C.F.R. § 4.71a. Diagnostic Code 5261 discusses disability ratings for limited knee extension. A noncompensable rating will be assigned for limitation of extension of the leg to 5 degrees; a 10 percent rating will be assigned for limitation of extension of the leg to 10 degrees; a 20 percent rating will be assigned for limitation of extension of the leg to 15 degrees; a 30 percent rating will be assigned for limitation of extension of the leg to 20 degrees; a 40 percent rating will be assigned for limitation of extension of the leg to 30 degrees; and a 50 percent rating will be assigned for limitation of extension of the leg to 45 degrees. The Veteran was granted a 10 percent rating, warranted by Diagnostic Code 5003, by a November 2011 rating decision for right knee osteoarthrosis, effective April 29, 2005. Shortly after, in September 2009, the Veteran filed for an increased rating for his bilateral knees. He added in a November 2009 letter that he had been experiencing pain, instability, and has been receiving a series of injections for pain management. Right Knee The August 2005 VA examination revealed that while there was no evidence of soft tissue, bone or joint space abnormality, there was decreased range of motion and subjective evidence of pain and stiffness. The Veteran's right knee extension was normal at 0 degrees, and flexion at 115 degrees. The examiner noted that the right joint function was additionally limited after a repetitive use test due to pain, fatigue, and lack of endurance. His right knee x-ray reported findings within normal limits. Later, a May 2008 radiology examination of both knees also revealed no gross abnormality. In July 2010, the Veteran underwent a VA examination for his joints, where he reported worsening conditions. The examination revealed evidence of crepitus, with grinding, and patellar abnormality. His right knee range of motion was considered normal, showing a flexion of 110 degrees and extension of 0 degrees. At this point, the examiner found no meniscus abnormality, but diagnosed the Veteran with bilateral knee osteoarthritis/degenerative joint disease. In November 2013, the Veteran was afforded another VA examination where he reported flare-ups severe enough to cause his knees to give out. After a range of motion test, the Veteran's right knee flexion was recorded at 105 degrees, with pain manifesting at 95 degrees. He had an extension of 5 degrees with pain at 10 degrees. A strength test revealed a score of 4 out of 5 in both flexion and extension. The examiner did not detect a meniscal condition, but advised the Veteran against using stairs and inclines. A November 2014 x-ray of the right knee revealed no acute fracture or dislocation, and no significant effusion. There was, however minor marginal osteophyte formation in the patellofemoral compartment. In December 2014, the Veteran continued to report flare ups. His range of motion of the right knee showed improvement with flexion at 120 degrees, and pain manifesting at 90 degrees. His extension was at 0 degrees, with pain manifesting at 5 degrees. However, after a repetitive range of motion test, the Veteran's flexion was reported at 90 degrees and extension at 5 degrees. The Veteran reported less movement than normal, pain on movement, disturbance of locomotion and interference with sitting, in both knees. He scored a 5 out of 5 in a muscle strength test for both knees, both flexion and extension. There was no meniscal condition involving joint locking, joint pain, or joint effusion. Unlike the prior examination, the December 2014 VA examiner found that the Veteran's bilateral knee condition did not affect his ability to work. In September 2015, an MRI of the right knee showed a possible horizontal tear of the posterior horn of the medial meniscus. There was also mild arthritis of the medial compartment and mild arthritis of the patellofemoral joint. In February 2016, the Veteran visited a private treatment facility for a possible medial meniscus tear in the right knee. There, the examiner noted that the Veteran had reported symptoms for several years. The tear was addressed by using arthroscopic shaver and upbiter performing partial medial meniscectomy. The physician noted that the Veteran had received steroid injections in the past, with no relief. Consequently, the Veteran underwent an arthroscopy and partial medial meniscectomy. The Veteran was afforded another VA examination in April 2017. There, the examiner diagnosed the Veteran's right knee with osteoarthritis, with limited flexion and extension. The examiner also found objective evidence of moderate to severe localized tenderness or pain of the joint associated with soft tissue. His right knee flexion was recorded at 60 degrees and extension at 10 degrees after a repetitive range of motion test. He reported weakness, lack of endurance, and incoordination, but denied flare ups. In accordance with Correia, the examiner found objective evidence of pain with weight bearing and objective evidence of crepitus. A muscle strength test of both knees show active movement against some resistance, showing a score of 4/5. Under Diagnostic Code 5260, the Veteran's limitation of flexion in his right knee is not at a compensable level. Throughout the appeal period, the Veteran's flexion was never limited to less than 60 degrees in either knee. To be granted a 10 percent compensable rating under Diagnostic Code 5260, the Veteran's knee flexion must be limited to 45 degrees. To be granted 20 percent, the Veteran's flexion must be limited to 30 degrees. Naturally, the Veteran is also not entitled to a 30 percent rating because his flexion is not limited to 15 degrees. However, under Diagnostic Code 5261, the Veteran may be granted a 10 percent rating for limited extension. Prior to the April 26, 2017, the Veteran's right knee extension was never greater than 5 degrees, until the April 2017 VA examination, where his right knee extension was limited to 10 degrees. With the Veteran's right knee extension at 10 degrees, Diagnostic Code 5261 could allow for a 10 percent rating. The Veteran was initially granted a 10 percent rating under Diagnostic Code 5003 when he showed a noncompensable limited range of motion, accompanied by pain on movement. Under Diagnostic Code 5099-5014, rated under Diagnostic Code 5003, a 10 percent rating is applicable for each major joint affected by limitation of motion, manifested by muscle spasm and painful motion. However, with the most recent VA examination showing a limited extension of 10 degrees, the Board finds that the Veteran is now entitled to a compensable rating of 10 percent under Diagnostic Code 5261 for his right knee. Because Diagnostic Code 5261 is now more appropriate based on the level of disability and symptomatology demonstrated by the Veteran, Diagnostic Code 5099-5014 is no longer applicable. Butts v. Brown, 5 Vet. App. at 532. To allow two separate ratings of 10 percent under both Diagnostic Codes 5003 as well as 5261 would constitute pyramiding because the Veteran would effectively be granted disability ratings for the same symptom of pain. 38 C.F.R. § 3.951 (b). The Court has held that assigning two separate ratings for symptoms that are "duplicative or overlapping" violates the rule against pyramiding. See Esteban v. Brown, 6 Vet. App. 259, 261-62 Finally, with a clear documentation of a meniscal tear in the right knee, evidenced by the February 2016 private treatment report, the Board finds that the Veteran is entitled to a separate rating of 20 percent disabling under diagnostic code 5258 for a meniscal tear, effective September 18, 2015, the date in which entitlement arose. 38 C.F.R. § 3.400 (o)(2). Left Knee The Veteran's August 2005 VA examination showed that his left knee demonstrated an extension of 0 degrees and flexion at 120 degrees. A repetitive use test also revealed additional limitation due to pain. Unlike the right knee, the examiner was unable to make a determination without speculation, whether or not pain, fatigue, weakness, lack of endurance, incoordination added to his limited motion. X-ray of the left knee showed findings within normal limits, but that the damage to the knee is to the soft tissue surrounding the bones of the joint. A May 2008 radiology examination conducted 3 years later showed no gross abnormality in the left knee. During his July 2010 VA examination, the examiner found evidence of crepitus, grinding, and patellar abnormality. The Veteran's left knee flexion was recorded at 110 degrees and extension at 0 degrees. In his November 2013 VA examination, the Veteran reported flare-ups that cause his knees to give out. His left knee flexion was 95 degrees with pain beginning at 90 degrees. His extension was recorded at 5 degrees with pain at 10 degrees. He reported less movement than normal, weakened movement, pain and swelling in both knees. His strength test showed active movement against some resistance at 4 out of 5, in both flexion and extension of both knees. The examiner noted that the Veteran's both left and right knee pain increase with prolonged activity, requiring limitation of activities. He was advised against using stairs and inclines. The Veteran's November 2014 x-ray of his left knee showed no acute fracture or dislocation, no significant effusion, and no significant joint space narrowing. There was however, evidence of minor marginal osteophyte formation in the patellofemoral compartment and anterior enthesophyte formation. During his December 2014 VA examination, his left knee showed a flexion of 130 degrees with pain beginning at 90 degrees. But after a range of motion test, his flexion was at 90 degrees and his extension at 5 degrees. Similar to the right knee, the reported less movement than normal, accompanied with pain even though he scored a 5 out of 5 in his muscle strength test. The Veteran underwent an MRI of the left knee in July 2015. The results showed some degenerative changes noted in the medial and patellofemoral compartment. The physician diagnosed the Veteran with mild horizontal tearing of the posterior horn of the medial meniscus. During the April 2017 VA examination, the examiner noted an existing left knee meniscal tear, similar to the right knee. He also diagnosed the Veteran with left knee osteoarthritis, limited flexion at 75 degrees and limit extension at 10 degrees. The Veteran reported less movement than normal, with swelling, instability of station, disturbance of locomotion, interference with sitting, and interference with standing. A muscle strength test showed reduced strength as he scored a 4 out of 5 in both his extension and flexion. There was however no evidence of muscle atrophy or ankylosis. Similar to the right knee and as explained above, the Board finds that the Veteran's 10 percent rating for his left knee disability is continued, but under Diagnostic Code 5261, instead of 5099-5014, rated under Diagnostic Code 5003. The April 2017 VA examination report documented a limited extension of 10 degrees in his left knee, which warrants a compensable rating of 10 percent. Naturally, he is not entitled to higher rating because the evidence must show that his extention is limited to 15 degrees to warrant a 20 percent rating, 20 degrees to warrant a 30 percent rating, 30 degrees to warrant a 40 percent rating, and 45 degrees to warrant a 50 percent rating. Since Diagnostic Code 5261 also contemplates pain on motion, it effectively replaces the Veteran's initial rating of 10 percent under Diagnostic Code 5003, so that the rule against pyramiding is not violated. In addition, the Veteran is also entitled a rating of 20 percent disability rating for his meniscal tear, effective July 6, 2015. The Veteran's medical record reflected a diagnosis of a left knee meniscal tear, which was documented a July 2015 MRI. Therefore, a separate 20 percent rating for a meniscal tear is warranted under Diagnostic Code 5258, effective July 6, 2015. 38 C.F.R. § 3.400 (o)(2) ORDER Entitlement to service connection for a lumbar spine disability is denied. Entitlement to service connection for a left wrist condition due to a service connected left finger fracture is denied. Entitlement to a rating of 10 percent for a right knee disability is granted from April 26, 2017. Entitlement to a rating of 10 percent for a left knee disability is granted from April 26, 2017. Entitlement to a separate rating of 20 percent for a right knee meniscal tear is granted from September 15, 2015. Entitlement to a separate rating of 20 percent for a left knee meniscal tear is granted from July 6, 2015. REMAND A remand is required to further develop the Veteran's claim for TDIU. VA will grant a TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.34, 4.16. TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). In this case, the Board finds that the Veteran meets the scheduler requirement for TDIU under C.F.R. § 4.26. When a partial disability results from a disease or injury of upper or lower extremities, the rating for the disabilities of the right and left sides will be combined as usual, and 10 percent of this value will be added (i.e. not combined) before proceeding with further combination or converting to a degree of disability. 38 C.F.R. § 4.26. With the newly granted disability ratings at 20 percent in both the left and right knee under Diagnostic Code 5258 for meniscal tear, 20 percent rating due to right knee instability, and a 20 percent rating due to left knee instability, his combined evaluation of 69 percent, well over the required 40 percent. However, the Board lacks sufficient information pertaining to the Veteran's employment history and his education background to determine whether or not the Veteran has been unable to secure or follow a substantially gainful occupation as a result of his service connected disabilities. The Veteran's VA examination reports have provided inconclusive or conflicting reports on the Veteran's ability obtain employment. The November 2014 examiner has provided that the Veteran had no functional loss or functional impairment to any of his fingers or thumb. He also found that the Veteran's finger disability and his knee disability did not impact his ability to work. This determination however, was made when the examiner did not find additional knee disability, specifically the bilateral meniscal tear. Then, in April 2017, the VA examiner noted that the Veteran's service connected disabilities limited his walking, standing, and sitting for prolonged periods of time. The Veteran also cannot squat or kneel. He often has to stretch and stand often to alleviate pain. However, a opinion as to whether or not the Veteran is able to find employment was not offered. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with the required information under VA's duty to notify and assist. Particularly, the Veteran must be notified of how to substantiate a claim for entitlement to a TDIU. Additionally, provide the Veteran with VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) and request that he supply the requisite information. After such actions, conduct any further development of the Veteran's TDIU claim deemed necessary. 2. Schedule the Veteran for a VA examination, to be conducted in order to determine entitlement to a TDIU. 3. The examiner should opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not (50 percent probability or greater) that his service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation. In offering this impression, the examiner must take into consideration the Veteran's level of education, training, and previous work experience. For this purpose, notify the examiner that the Veteran's service-connected disabilities are: 1) Right knee disability 2) Left knee disability 3) Tinnitus 4) Residuals of left ring finger fracture. 4. Readjudicate the Veteran's claim. If the benefit sought on appeal remain denied, the Veteran should be provided with a supplemental statement of the case and allowed an appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further consideration, if otherwise in order. 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ KELLI KORDICH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017). Department of Veterans Affairs