Citation Nr: 1805014 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 10-31 926A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to a disability rating higher than 10 percent for right knee patellofemoral syndrome with degenerative joint disease and bursitis (right knee disability) prior to July 5, 2016, and higher than 20 percent since. 2. Entitlement to a disability rating higher than 10 percent for left knee patellofemoral syndrome with degenerative joint disease and bursitis (left knee disability) prior to July 5, 2016, and higher than 20 percent since. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A-L Evans, Counsel INTRODUCTION The Veteran served on active duty from June 1983 to August 1981, from June 10, 2002 to June 14, 2002, and from July 15, 2002 to July 19, 2002. This appeal to the Board of Veterans' Appeals (Board/BVA) originated from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Veteran appeared at a hearing before the undersigned Veterans Law Judge in February 2013. A transcript of the hearing is in the Veteran's claims file, so of record. In a February 2014 Board decision, these claims were denied. Subsequently, the Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Veterans Court/CAVC). In a Joint Motion for Remand (JMR) in May 2015, the Court vacated the Board's decision and remanded these claims to the Board for compliance with the terms of the JMR. In August 2015 and December 2016, the Board in turn remanded these claims to the Agency of Original Jurisdiction (AOJ) for further development and consideration. Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, in the August 2015 and December 2016 Board Remands, it was noted that the issue of entitlement to service connection for a low back disability, including secondary to these service-connected right and left knee disabilities, had been raised by the record. To date, however, this additional claim has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over this additional claim and resultantly is again referring it to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). Note also that, in a rather recent August 2017 rating decision, on remand, the RO increased the rating for the Veteran's service-connected right and left knee disabilities, effective July 5, 2016. Since however the increase does not constitute a full grant of the benefits sought (i.e., does not cover the entire period at issue), the appeal concerning these claims is now whether he was entitled to a rating higher than 10 percent for these service-connected disabilities prior to July 5, 2016, and whether he has been entitled to a rating higher than 20 percent for them since. AB v. Brown, 6 Vet. App. 35, 39 (1993) (indicating that, absent express indication to the contrary, it is presumed a Veteran is seeking the highest possible rating for a disability for all time periods at issue; therefore receipt of a higher rating, but less than the maximum possible rating, does not abrogate a pending appeal). FINDINGS OF FACT 1. Prior to July 5, 2016, the Veteran's right and left knee disabilities were manifested by bursitis and painful, limited motion; the evidence does not show ankylosis, subluxation or instability, removal of semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum of the knees. 2. From July 5, 2016, the Veteran's right and left knee disabilities were productive of the functional equivalent of dislocation of semilunar cartilage with frequent episodes of "locking" pain and effusion into the joint; the evidence does not show ankylosis, subluxation or instability, removal of semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum of the knees. 3. From July 5, 2016 to May 16, 2017, the Veteran's right knee disability was manifested by pain and weakness resulting in flexion limited to 15 degrees; the evidence does not show ankylosis, subluxation or instability, removal of semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum of the knee. 4. From July 5, 2016 to May 16, 2017, the Veteran's left knee disability was manifested by pain and weakness resulting in flexion limited to 15 degrees; the evidence does not show ankylosis, subluxation or instability, removal of semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum of the knee. 5. Since May 17, 2017, Veteran's right knee disability has been manifested by productive of pain and weakness resulting in flexion limited to 45 degrees; the evidence does not show ankylosis, subluxation or instability, removal of semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum of the knee. 6. Since May 17, 2017, Veteran's left knee disability has been manifested by productive of pain and weakness resulting in flexion limited to 30 degrees; the evidence does not show ankylosis, subluxation or instability, removal of semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum of the knee. 7. Since May 17, 2017, Veteran's right knee disability has been manifested by productive of pain and weakness resulting in extension limited to 20 degrees; the evidence does not show ankylosis, subluxation or instability, removal of semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum of the knee. 8. Since May 17, 2017, Veteran's left knee disability has been manifested by productive of pain and weakness resulting in extension limited to 45 degrees; the evidence does not show ankylosis, subluxation or instability, removal of semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum of the knee. CONCLUSIONS OF LAW 1. Prior to July 5, 2016, the criteria for a disability rating in excess of 10 percent for the Veteran's right and left knee disabilities have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5256-5263 (2017). 2. From July 5, 2016, the criteria for a disability rating in excess of 20 percent for the Veteran's right and left knee disabilities have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5258 (2017). 3. From July 5, 2016 to May 16, 2017, the criteria for a separate disability rating of 30 percent, but no higher, for the Veteran's right knee disability on the basis of limitation of flexion have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2017). 4. From July 5, 2016 to May 16, 2017, the criteria for a separate disability rating of 30 percent, but no higher, for the Veteran's left knee disability on the basis of limitation of flexion have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2017). 5. Since May 17, 2017, the criteria for a disability rating of 10 percent, but no higher, for the Veteran's right knee disability on the basis of limitation of flexion have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2017). 6. Since May 17, 2017, the criteria for a disability rating of 20 percent, but no higher, for the Veteran's left knee disability on the basis of limitation of flexion have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2017). 7. Since May 17, 2017, the criteria for a separate disability rating of 30 percent, but no higher, for the Veteran's right knee disability on the basis of limitation of extension have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2017). 8. Since May 17, 2017, the criteria for a separate disability rating of 50 percent, but no higher, for the Veteran's left knee disability on the basis of limitation of extension have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). The Board also notes that, to the full extent possible, VA complied with all prior remand instruction requests, and there exist no deficiencies in VA's duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order); but see D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required). The Veteran in this case does not assert that VA violated its duty to notify, including during the February 2013 hearing, see Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010), that there are any outstanding records that VA should obtain on his behalf, or that he should be afforded another VA examination or medical opinion obtained based on the inadequacy of the earlier examinations he underwent during the course of this appeal. The purported inadequacy of the March 2012 VA examination was the subject of the May 2015 JMR vacating the Board's decision from February 2014 and was the reason for the subsequent remands by the Board. VA examinations were obtained in February 2016 and May 2017 and neither the Veteran nor his representative contends that still additional medical examinations are needed. No further notice or assistance is thus required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (explaining that the claimant has the burden of proof of showing there has been an error in developing his claim, but also beyond that, showing it is unduly prejudicial, meaning outcome determinative of his claim, i.e., more than harmless). See also 38 C.F.R. § 20.1102 (2017). The Veteran was provided VA medical examinations in June 2009, March 2012, February 2016 and May 2017. The examinations are sufficient evidence for deciding the claims on appeal. The reports are adequate as they are based upon consideration of the Veteran's prior medical history and examinations, describe the disabilities in sufficient detail so that the Board's evaluations are fully informed ones, and contain reasoned explanations. Thus, VA's duty to assist has been met. II. Analysis Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In every instance where the rating schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Prior to July 5, 2016, the Veteran's right and left knee disabilities were rated as 10 percent disabling under Diagnostic Codes 5099-5019. This hyphenated code contemplates an unlisted condition analogous to bursitis. 38 C.F.R. §§ 4.20, 4.27 (2017). Notably, Diagnostic Code 5019 subscribes to the criteria underlying other musculoskeletal codes, specifically Diagnostic Code 5003 (arthritis) and Diagnostic Code 5260 and 5261 (limitation of flexion and extension). 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5260, 5261 (2017). Diagnostic Code 5003 requires that degenerative arthritis be rated on the basis of limitation of motion of the specific joint or joints involved. Diagnostic Code 5003 further provides that, when the limitation of motion of the specific joint or joints involved is noncompensable, a rating of 10 percent is assigned for each such major joint or group of minor joints affected by limitation of motion. In the absence of limitation of motion, a 20 percent evaluation is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. Limitation of motion of the knee is rated under Diagnostic Code 5260 (limitation of flexion) and Diagnostic Code 5261 (limitation of extension). Under Diagnostic Code 5260, flexion limited to 60 degrees is rated zero percent. The criterion for a 10 percent rating is flexion limited to 45 degrees. The criterion for the next higher rating, 20 percent, is flexion limited to 30 degrees. The criterion for the next higher rating, 30 percent, is flexion limited to 15 degrees. Under Diagnostic Code 5261, extension limited to 5 degrees is rated zero percent. The criterion for a 10 percent rating is extension limited to 10 degrees. The criterion for the next higher rating, 20 percent, is extension limited to 15 degrees. The criterion for the next higher rating, 30 percent, is extension limited to 20 degrees. A 40 percent rating is assigned with extension limited to 30 degrees. The highest 50 percent rating is assigned with extension limited to 45 degrees. Separate ratings also are permissible for limitation of flexion and limitation of extension of the same knee under Diagnostic Codes 5260 and 5261. VAOPGCPREC 9-2004 (2004). Since July 5, 2016, the Veteran's right and left knee disabilities have been rated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5258, for a dislocated semilunar cartilage (meniscus) with frequent episodes of locking, pain, and effusion into the joint. Under Diagnostic Code 5258, a 20 percent rating is the only and maximum rating. Under 38 C.F.R. § 4.71a, there are other diagnostic codes that may potentially be employed to evaluate impairment resulting from service-connected knee disorders. Additional rating criteria are found under Diagnostic Codes 5256 (ankylosis of the knee), 5257 (recurrent subluxation or lateral instability of a knee), 5259 (removal of semilunar cartilage), 5262 (impairment of the tibia and fibula), and 5263 (genu recurvatum acquired, traumatic, with weakness and insecurity in weight-bearing objectively). Normal knee motion is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. 38 C.F.R. § 4.71a. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The United States Court of Appeals for Veterans Claims (Court) has also issued the opinion of Correia v. McDonald, 28 Vet. App. 158 (2016), which clarifies additional requirements that VA examiners should address when assessing musculoskeletal disabilities, holding specifically, that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. The Board has reviewed the Veteran's lay statements, to include his testimony at his February 2013 Board hearing, and all relevant medical evidence, with particular attention to the VA examinations from June 2009, March 2012, February 2016, and May 2012, and a July 2016 private medical note. Prior to July 5, 2016 Given the evidence for this period on appeal, the Board finds the 10 percent rating currently assigned to the Veteran's service-connected right and left knee disabilities under Diagnostic Codes 5099-5019 to be proper. To assign a 20 percent rating for bursitis under Diagnostic Code 5003, it must be shown by x-ray evidence that there is involvement of two or more major joints with occasional incapacitating exacerbations; such is not shown in the record. This has not been shown on his June 2009, March 2012 and February 2016 VA examinations. Accordingly, a disability rating in excess of 10 percent is not warranted under Diagnostic Code 5003. The criteria for a higher or separate rating under Diagnostic Code 5260, for limited flexion, have also not been met. The possible basis for an increase to a 20 percent rating, taking into account DeLuca factors, under Diagnostic Code 5260 would be a showing of limitation of flexion of the knee to 30 degrees. At no time during this period on appeal has the Veteran's flexion been limited to 30 degrees. In this regard, at worst, right and left knee flexion were each limited to 35 degrees, to include consideration of pain and repetitive motion testing as shown on the March 2012 and February 2016 VA examination reports. The June 2009 and March 2012 VA examination reports reflect right knee flexion measurements as 135 degrees with pain, and 115 degrees, with pain beginning at 110 degrees, respectively. The June 2009 and March 2012 VA examination reports reflect left knee flexion measurements as 135 degrees with pain, and 115 degrees, with pain, respectively. Accordingly, disability ratings are not warranted under Diagnostic Code 5260. The criteria for higher or separate rating under Diagnostic Code 5261, for limited extension, have also not been met. At no time during this period on appeal, to include results from the March 2012 and February 2016 VA examinations, has a compensable level of limitation of motion of the Veteran's knees, bilaterally, been demonstrated. Accordingly, disability ratings are not warranted under Diagnostic Code 5260. From July 5, 2016 to May 16, 2017 For this time period on appeal, for both the right and left knees, the Veteran is in receipt of the maximum evaluation assignable under Diagnostic Code 5258. Under Diagnostic Code 5258, a 20 percent rating is provided 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). Therefore, no higher rating is available in regards to the Veteran's meniscal tears in his right and left knees, with noted symptoms of locking and pain, under this Diagnostic Code. With regards to limitation of flexion for Veteran's right and left knee disabilities, given the medical evidence of record for this time period, the Board finds that a rating of 30 percent, and no higher, under Diagnostic Code 5260 is warranted for each knee. A 30 percent disability rating is warranted when flexion is limited to 15 degrees. The July 2016 private medical note shows that the Veteran had "about" 15 to 20 degrees of flexion. The private doctor noted that he believed that the Veteran was "firing his hamstrings" during the examination for forward flexion. In light of the evidence of record, taking into account DeLuca factors and according the benefit of the doubt to the Veteran, the Board finds that the Veteran is entitled to a separate 30 percent rating for limitation of flexion of the bilateral knees for this time period on appeal under Diagnostic Code 5260. With regards to limitation of extension for Veteran's right and left knee disabilities, the criteria for higher or separate rating under Diagnostic Code 5261, taking into account DeLuca factors, have not been met. The July 2016 private medical note shows that the Veteran's knees went into full extension. As such, the findings do not meet the criteria for a compensable rating under Diagnostic Code 5261, or for any higher rating. Since May 17, 2017 Again, the Veteran is already in receipt of a 20 percent rating, the highest rating available, under Diagnostic Code 5258 for both his right and left knee disabilities. Therefore, no higher rating is warranted under this Diagnostic Code. With regards to limitation of flexion for the Veteran's right knee disability, given the medical evidence of record for this time period, the Board finds that a rating of 10 percent, and no higher, under Diagnostic Code 5260 is warranted. A 10 percent rating is warranted for limitation of flexion to 45 degrees. There is some evidence of limitation of flexion, painful motion, and pain on weight-bearing. The May 2017 VA examination report reflects flexion to 100 degrees. However, in compliance with Correia, the Veteran's active and passive range of motion for forward flexion, standing, was measured to 60 degrees, with pain at 45 degrees. Sitting, the Veteran's range of motion for forward flexion was to 100, with pain at 45 degrees. In light of the evidence of record, taking into account DeLuca factors and according the benefit of the doubt to the Veteran, the Board finds that the Veteran is entitled to a 10 percent rating for limitation of flexion under Diagnostic Code 5260. With regards to limitation of flexion for the Veteran's left knee disability, given the medical evidence of record for this time period, the Board finds that a rating of 20 percent, and no higher, under Diagnostic Code 5260 is warranted. A 20 percent rating is warranted for limitation of flexion to 30 degrees. There is some evidence of limitation of flexion, painful motion, and pain on weight-bearing. The May 2017 VA examination report reflects flexion to 95 degrees. However, in compliance with Correia, the Veteran's active and passive range of motion for forward flexion, standing, was measured to 50 degrees, with pain at 40 degrees. Sitting, the Veteran's range of motion for forward flexion was to 95 degrees, with pain at 30 degrees. In light of the evidence of record, taking into account DeLuca factors and according the benefit of the doubt to the Veteran, the Board finds that the Veteran is entitled to a 20 percent rating for limitation of flexion under Diagnostic Code 5260. With regards to limitation of extension for Veteran's right knee disability, given the medical evidence of record for this time period, the Board finds that a rating of 30 percent, and no higher, under Diagnostic Code 5261 is warranted. A 30 percent rating is warranted for limitation of extension limited to 20 degrees. The May 2017 VA examination report reflects that the Veteran's right knee extension was to 0 degrees, with pain. However, in compliance with Correia, the Veteran's extension of his right knee was to 0 degrees, with pain at 20 degrees. In light of the evidence of record, taking into account DeLuca factors and according the benefit of the doubt to the Veteran, the Board finds that the Veteran is entitled to a 30 percent rating for limitation of extension under Diagnostic Code 5261. With regards to limitation of extension for Veteran's left knee disability, given the medical evidence of record for this time period, the Board finds that a rating of 50 percent under Diagnostic Code 5261 is warranted. A 50 percent rating is warranted for limitation of extension limited to 45 degrees. The May 2017 VA examination report reflects that the Veteran's left knee extension was to 0 degrees, with pain. However, in compliance with Correia, the Veteran's extension of his left knee was to 0 degrees, with pain at 60 degrees. In light of the evidence of record, taking into account DeLuca factors and according the benefit of the doubt to the Veteran, the Board finds that the Veteran is entitled to a 50 percent rating for limitation of extension under Diagnostic Code 5261. As for other potentially applicable Diagnostic Codes for the Veteran's knees, bilaterally, for the entire period on appeal, there has been no clinical findings on the VA and private examinations that reflects that the Veteran suffers from ankylosis of the knee, a recurrent subluxation or lateral instability of the knee, impairment of the tibia or fibula resulting in knee disability due to malunion or nonunion and/or genu recurvatum. Accordingly, Diagnostic Codes 5256, 5257, 5262 and 5263 are not for application. 38 C.F.R. § 4.71a. Also, both right and left knees have already been assigned a rating under Diagnostic Code 5258 for the residual symptoms associated with the disability that encompasses dislocation of the semilunar cartilage with symptoms of frequent joint "locking," pain, and effusion. Diagnostic Code 5259 requires removal of the semilunar cartilage that is "symptomatic"; therefore, Diagnostic Codes 5258 and 5259 overlap with each other in symptoms of pain, effusion, and locking. Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Because of the overlapping symptoms, granting a separate rating for the same overlapping manifestations, specifically pain, effusion, and locking, of the knee disability under Diagnostic Code 5259 would constitute impermissible pyramiding. 38 C.F.R. § 4.14. Moreover, the highest available rating under Diagnostic Code 5259 in this case is 10 percent; thus, Diagnostic Code 5259 does not allow for a higher rating than Diagnostic Code 5258. The Board notes that in the May 2015 JMR noted above, the Court stated that the March 2012 VA examiner failed to comment on whether the Veteran would experience any additional limitation of motion due to or during flare-ups and did not explain why this information could not feasibly be provided. By way of background, the June 2009 VA examination report shows that flare-ups were noted with overuse. Flare-ups with repetitive use were not described. The March 2012 VA examination reports shows that daily flares of pain with increased pain lasting 30-45 minutes were noted. The VA examination report dated in February 2016 reflects that the Veteran reported flare-ups, stating that the more he walked or climbed stairs or steps, the more pain he experienced. Regarding whether flare-ups caused pain, weakness, fatigability or incoordination which significantly limited functional ability, the VA examiner noted that a determination was unable to be made without mere speculation. The VA examination report dated in May 2017 shows that during flare-ups, the Veteran reported that he avoided ambulatory activities for an hour; he could not climb or squat. He experienced pain and weakness and loss of motion. Pain, weakness, fatigability or incoordination were noted during flare-ups. The VA examiner noted that it would be speculative since the Veteran's knees were not acutely flared and history given by the Veteran was not specific enough to determine actual range of motion during flares. A precedent case admonished the Board for relying on medical opinions that were unable to establish the required linkage, without resorting to mere speculation, as cause for denying the Veteran's claims. See Jones v. Shinseki, 23 Vet. App. 382 (2010). In Jones, the Court noted it was unclear whether the examiners were unable to provide this requested definitive medical comment on etiology because they actually were unable to since the limits of medical knowledge had been exhausted or, instead, for example, needed further information to assist in making this determination (e.g., additional records and/or diagnostic studies) or other procurable and assembled data. The Court in Jones acknowledged there are instances where a definitive opinion cannot be provided because required information is missing or can no longer be obtained or current medical knowledge yields multiple possible etiologies with none more likely than not the cause of the claimed disability. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (noting the Board need not obtain further medical evidence where the medical evidence "indicates that determining the cause is speculative"). The Court in Jones held, however, that in order to rely upon a statement that an opinion cannot be provided without resort to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record. The Jones Court acknowledged that an "examination is not inadequate merely because the examiner states he or she cannot reach a conclusion without resort to speculation." Jones, 23 Vet. App. at 391. The Court also found that "VA is not bound to proceed through multiple iterations of medical opinions until it declares that no further examinations would assist the claimant[,]" which, in the Court's view, was "inherent in a finding that the duty to assist has been fulfilled." Id. The Court in Jones explained that the duty to assist, rather, requires VA to obtain all relevant information that may reasonably be obtained before the Board may rely on a VA medical examiner's opinion to deny a claim and enumerates the steps under which the duty to assist may apply. Id., at 388. The Court first found that the duty to assist applies when "an examiner specifically identifies additional information that would facilitate a more conclusive opinion." The Court then found that "it must be clear on the record that the inability to opine on questions of diagnosis and etiology is not the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion." Id., at 389. The Court in Jones went on to point out that, while an opinion that diagnosis or etiology was not possible without resorting to speculation was just as much a medical conclusion as a firm diagnosis or a conclusive opinion, a bald statement that it would be speculative to render an opinion as to etiology or diagnosis was ambiguous and, thus, it must be clear that the examiner has considered "all procurable and assembled data," by obtaining all relevant tests and records that might reasonably illuminate the medical analysis. Id., at 390. Although the February 2016 and May 2017 VA examiners noted that opinions regarding the Veteran's flare-ups would be speculative, the Board finds the May 2017 explanation adequate for why the examiner could not offer range of motion estimates during the flare-up episodes. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). The Board notes that there is no reason to suspect that passive range of motion would be any less than that of active motion absent some indication more than what has been subjectively found upon examination during the entire appeal period. Next, the Board has considered whether a separate rating is warranted for a scar associated with the Veteran's service-connected left knee disability. See Esteban v. Brown, 6 Vet. App. 259 (1994). The VA examination reports noted above reflect that the scar as not painful and/or unstable and that the total area of all related scars was not greater than 39 square cm. (6 square inches). The March 2012 VA examination report shows that the Veteran's scar was noted as not painful and/or unstable and not a total area greater than 39 cm. The February 2016 VA examination report shows that scar on the Veteran's left knee was measured as 4cm x 1cm. It was noted that the scar was not painful or unstable. The May 2017 VA examination report shows that a scar was measured as 1 cm x .1 cm. The VA examiner noted 3 healed arthroscopic scars that were flat, flesh colored and nontender. As such a separate rating for a scar is not warranted. See 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805 (2017). III. Other Considerations Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). As a final matter, the Board acknowledges that in Rice v. Shinseki, 22 Vet. App. 447 (2009), it was held that a claim for a total disability rating based on individual unemployability (TDIU) is part and parcel of an increased-rating claim when such is raised by the record. At the June 2009 VA examination, the VA examiner noted that the Veteran's condition did not affect his work. The March 2012 VA examination report shows that the Veteran had to sit frequently due to knee pain but also repositioning with sitting due to pain to both knees. He was unable to bend or squat, and could stand for a maximum of 1 hour. The February 2016 VA examination report shows that the Veteran still worked for VAH, being responsible for Talent Management Systems. It was noted that his knees hindered his sitting and standing with him having to get up and move within one hour of sitting or standing. The May 2017 VA examination report shows that the VA examiner indicated that the Veteran's condition limited his sitting and standing for 30 minutes. His walking ability was also limited and he avoided climbing and squatting. Although the Veteran's sitting and standing is limited, there is no evidence or suggestion from the record that his knee disabilities render him unemployable. Accordingly, a TDIU claim has not been raised, and no action pursuant to Rice is necessary. ORDER Prior to July 5, 2016, entitlement to a disability rating in excess of 10 percent for a right knee disability is denied. Prior to July 5, 2016, entitlement to a disability rating in excess of 10 percent for a left knee disability is denied. Since July 6, 2016, entitlement to a disability rating in excess of 20 percent for a right knee disability, for a dislocated semilunar cartilage, is denied. Since July 6, 2016, entitlement to a disability rating in excess of 20 percent for a left knee disability, for a dislocated semilunar cartilage, is denied. From July 6, 2016 to May 17, 2017, a separate 30 percent disability rating, but no higher, for right knee limitation of flexion, is granted. From July 6, 2016 to May 17, 2017, a separate 30 percent disability rating, but no higher, for left knee limitation of flexion, is granted. Since May 17, 2017, a 10 percent disability rating, but no higher, for right knee limitation of flexion, is granted. Since May 17, 2017, a 20 percent disability rating, but no higher, for left knee limitation of flexion, is granted. Since May 17, 2017, a separate 30 percent disability rating, but no higher, for right knee limitation of extension, is granted. Since May 17, 2017, a separate 50 percent disability rating, but no higher, for left knee limitation of extension, is granted. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs