Citation Nr: 1805653 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 06-17 676 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an increased evaluation for right knee status-post menisectomy, traumatic arthritis, which is currently evaluated as 20 percent disabling. 2. Entitlement to service connection for myoclonus, including as secondary to the service-connected right knee status-post menisectomy, traumatic arthritis. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to the service-connected right knee disability prior to August 10, 2012. REPRESENTATION Appellant represented by: Kenneth H. Dojaquez, Esq. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jonathan Z. Morris, Associate Counsel INTRODUCTION The Veteran had active military service from March 1974 to July 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In May 2007, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing. A transcript of the proceeding is of record. This appeal has a long procedural history and has been before the Board and the United States Court of Appeals for Veterans Claims (Court) multiple times. As this procedural history has been addressed in prior Board decisions and remands, it will not be repeated here in full. Most recently, this case was before the Board in May 2017, where the Board determined that the December 1980 RO decision was not final and, thus, the Veteran's October 1980 increased rating claim for his right knee disability remained pending and unadjudicated. Next, the Board remanded the issues now currently on appeal for further development. Upon completion of such development, the Agency of Original Jurisdiction (AOJ) continued to deny these claims, as reflected in a July 2017 Supplemental Statement of the Case (SSOC), and returned the matter to the Board for further review. The Board notes that there was substantial compliance with its May 2017 remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). As will be explained in the REMAND section below, the issue of entitlement to a TDIU on an extra-schedular basis, prior to August 10, 2012, requires still more development before the Board can make a determination concerning this earlier point in time, so the Board is remanding the claim to the AOJ. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran's favor, the evidence is in relative equipoise as to whether his currently diagnosed myoclonus is secondary to prescribed medications to treat his service-connected disabilities. 2. From March 1, 1981 to April 16, 1999, the Veteran's residuals of a menisectomy of the right knee is best characterized as symptomatic with symptoms of pain. 3. The medical evidence of record indicates that the Veteran was diagnosed with right knee traumatic arthritis on July 15, 1985. 4. Since October 1, 1985, the Veteran manifested slight instability of the right knee. 5. Since April 16, 1999, the Veteran's residuals of a menisectomy of the right knee is best characterized by frequent episodes of joint "locking" and joint pain. 6. Prior to November 23, 2009, the medical evidence of record shows the Veteran's right knee, at worst, demonstrated, flexion to 90 degrees and full extension. 7. For the rating period from November 23, 2009 to November 13, 2013, the medical evidence of record shows the Veteran's right knee, at worst, demonstrated flexion to 40 degrees and extension limited to 15 degrees. 8. For the rating period from November 13, 2013 to April 30, 2016, the medical evidence of record shows the Veteran's right knee, at worst, demonstrated flexion to 80 degrees and extension limited to 5 degrees. 9. For the rating period since April 30, 2016, the medical evidence of record shows the Veteran's right knee, at worst, demonstrated flexion to 90 degrees and extension limited to 10 degrees. CONCLUSIONS OF LAW 1. The criteria for service connection for myoclonus, as secondary to medications prescribed for service-connected disabilities, have been met. 38 U.S.C. §§ 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 2. For the rating period from July 1, 1985 to November 23, 2009, the criteria for a separate 10 percent evaluation, but no higher, under Diagnostic Code 5010 have been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010 (2017). 3. For the rating period from November 13, 2013 to April 30, 2016, the criteria for a separate 10 percent evaluation, but no higher, under Diagnostic Code 5010 have been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010 (2017). 4. For the rating period since October 1, 1985, but no earlier, the criteria for a separate 10 percent evaluation, but no higher, under Diagnostic Code 5257 have been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2017). 5. For the rating period from March 1, 1981 to April 16, 1999, the criteria for a separate 10 percent evaluation, but no higher, under Diagnostic Code 5259 have been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5259 (2017). 6. For the rating period since April 16, 1999, the criteria for an increased evaluation higher than 20 percent, under Diagnostic Code 5258, have not been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5258 (2017). 7. For the rating period from November 23, 2009 to November 13, 2013, the criteria for a separate 10 percent evaluation, but no higher, under Diagnostic Code 5260 have been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2017). 8. Since November 13, 2013, the criteria for a compensable rating under Diagnostic Code 5260 have not been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, DC 5260 (2017). 9. For the rating period from November 23, 2009 to November 13, 2013, the criteria for a separate 20 percent evaluation, but no higher, under Diagnostic Code 5261 have been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261 (2017). 10. For the rating period from November 13, 2013 to April 30, 2016, the criteria for a compensable rating under DC 5261 have not been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261 (2017). 11. For the rating period since April 30, 2016, the criteria for a separate 10 percent evaluation, but no higher, under Diagnostic Code 5261 have been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Ideally, 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). For increased rating claims, 38 U.S.C. § 5103(a) requires, at a minimum, the Secretary to: (1) inform the claimant that in order to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; and, (3) further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic Codes," and that the range of disability applied may be between 0 and 100 percent "based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment." Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (holding that VCAA notice need not be veteran specific, or refer to the effect of the disability on "daily life"). Once service connection is granted, Courts have held that the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. See 38 U.S.C. § 5103(a); see also Goodwin v. Peake, 22 Vet. App. 128, 137 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Nonetheless, the Board notes that in a February 2013 letter, the Veteran was informed of what evidence was required to substantiate his claim, and of his and VA's respective responsibilities in obtaining evidence. Additionally, this letter notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Moreover, the Veteran was afforded ample notice of the applicable law and requirements for substantiating his claims in the June 2016 Statement of the Case (SOC), as well in additional SSOCs. He has had ample opportunity to respond or supplement the record, and has not alleged that any notice was less than adequate. Thus, the Board finds that VA's duty to notify is satisfied. Regarding the duty to assist, the Board notes that the claims file contains the Veteran's service treatment records (STRs), relevant post-service medical records, and his own written contentions. Neither the Veteran nor his representative has identified, nor does the record otherwise indicate, any other evidence relevant to his claim that is obtainable and has not been obtained. Furthermore, the Veteran was afforded VA compensation examinations and opinions were provided in support of his claim. Upon review of the medical evidence, the Board concludes that these examination reports, collectively, are adequate for the purpose of rendering a decision in this case. 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance to the Veteran with the development of evidence is required. II. Increased Rating for Right Knee Disability When evaluating the severity of a particular disability, it is essential that the disability is considered in the context of the entire recorded history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). But if the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings and is employed for initial or established ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. If the evidence for versus against a claim is in equipoise, then the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities at 38 C.F.R. Part 4. These percentage ratings represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Knee disabilities are evaluated under 38 C.F.R. § 4.71a, Diagnostic Codes 5256-5263. The appropriate rating criteria for rating limitation of motion of the 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. § 4.71a, Plate II. 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). See VAOPGCPREC 9-2004. 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. Under Diagnostic Code 5256, evaluations are assigned when ankylosis is present. 38 C.F.R. § 4.71a. Diagnostic Codes 5258 and 5259 provide for disability ratings when the 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. The words "slight," "moderate," and "severe," as used in the various diagnostic codes, are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6. The Veteran's service-connected right knee status-post menisectomy, traumatic arthritis, is currently rated as 0 percent disabling from March 1, 1981 under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5259, 10 percent from October 1, 1985 under DC 5257, and 20 percent since April 16, 1999 under DC 5258-5010. The Board notes that the evaluation of the same disability under various diagnostic codes is to be avoided, however the assignment of separate evaluations for separate and distinct symptomatology is permitted where none of the symptomatology that justifies an evaluation under one diagnostic code is duplicative of, or overlapping with, the symptomatology that justifies an evaluation under another, separate diagnostic code. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran. Historically, effective July 21, 1976, the Veteran's service-connected right knee status-post menisectomy was initially evaluated under DC 5259. As noted above, the period currently on appeal begins on October 24, 1980. At this time, he was in receipt of a temporary total evaluation for convalescence under 38 C.F.R. § 4.30 due to an October 1980 surgery related to his service-connected right knee disability. Thereafter, the Veteran's disability rating was reduced from 10 percent to noncompensable, effective March 1, 1981, under DC 5257 "since the objective findings do not warrant a continuation of the compensable evaluation." However, the Veteran continued to report pain and discomfort when moving his right knee. See, e.g. October 1980 Hospital Summary; and, January 1981 Veteran Statement. In this case, despite the AOJ's decision to change the Veteran's diagnostic code evaluating his service-connected right knee disability from DC 5259 to 5257, the Board resolves all reasonable doubt in the Veteran's favor and concludes that a 10 percent evaluation is warranted, effective March 1, 1981, under DC 5259, for his reported "symptomatic" residuals following his convalescence period. Between March 1, 1981 and July 15, 1985, there is no medical evidence of record that supports an increased evaluation for the Veteran's service-connected right knee disability. However, diagnostic testing in July 1985 indicates that the Veteran had slight degenerative joint disease in his right knee. See also VA Treatment Record dated Sept. 26, 1985 (documenting mild post-traumatic arthritis). During this time, the Veteran underwent another surgery for his right knee in August 1985 and, as a result, was assigned a temporary total evaluation for convalescence under 38 C.F.R. § 4.30 from August 14, 1985 until October 1, 1985, when the AOJ awarded him a 10 percent evaluation under DC 5257 for right knee instability with pain. Here, the Board finds that a separate 10 percent evaluation is warranted, effective July 15, 1985, under DC 5010 for traumatic arthritis. However, as the evidence of record contains evidence of instability (i.e. medial collateral laxity), the Board will not disturb the 10 percent evaluation under DC 5257 for instability. In a July 1999 rating decision, the AOJ granted the Veteran an increased evaluation under DC 5258 based on then recent findings from a May 1999 VA Examination and December 1998 private medical records documenting moderate to severe post-traumatic arthritis in the right knee. In its decision, the AOJ indicated that a closely related disease or injury was used for rating purposes due to the Veteran's service-connected disability not having its own evaluation criteria. Here, as both DC 5258 and 5259 evaluate residuals affecting the medial meniscus, the Board concludes that maintaining both disability ratings would violate the rule against pyramiding under 38 C.F.R. § 4.14. Consequently, effective April 16, 1999, the Veteran will now be in receipt of a separate 10 percent evaluation under DC 5010 for traumatic arthritis, 10 percent under DC 5257 for instability, and 20 percent under DC 5258 for the remaining surgical residuals affecting the medial meniscus. The Board notes that, prior to a November 2009 VA examination report, the medical evidence of record reflects that the Veteran's arthritis of the right knee causes pain and limited motion, but not to a compensable degree under DC 5260 or 5261. See, e.g., VA Treatment Records dated in August 19, 1986 (documenting range of motion within normal limits); April 18, 1990 (documenting flexion to 120 degrees); Jan. 25, 1996 (documenting flexion to 110 degrees); Dec. 13, 2003 (documenting range of motion to 110 degrees); Oct. 30, 2004 (documenting flexion to 130 degrees and 5 degrees shy of full extension); and, Private Medical Record dated Dec. 7, 1998 (documenting flexion to 90 degrees). The Veteran was afforded a VA compensation examination in November 2009, where the examiner indicated that the Veteran "lacked 15 degrees of full extension and could flex the knee to 40 degrees." In November 2013, the Veteran was afforded another VA examination, where results from the physical evaluation revealed right knee flexion to 100 digress with pain, and extension was full at 0 degrees. In December 2014, he was again afforded a VA examination, where results from the physical evaluation revealed right knee flexion to 80 digress with pain, and extension was limited to 5 degrees. Again, in April 2016, he was afforded an examination, where results from the physical evaluation revealed right knee flexion to 90 degrees with pain, and extension was limited to 10 degrees. Most recently, the Veteran was afforded a VA examination in June 2017, where results showed right knee flexion to 90 degrees with pain, and extension was limited to 10 degrees. None of these examination reports document any ankylosis. At the outset, the Board finds that the VA compensation examinations described above, collectively, were thorough and adequate and provide a sound basis upon which to base a decision with regard to the Veteran's claims for increase. See Barr v. Nicholson, 21 Vet. App. 303 (2007). These examiners considered the relevant history of the Veteran's right knee disability, including the lay evidence of record, performed a physical examination, and provided a rationale to support the opinions reached. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). In light of the foregoing, the Board concludes that the evidence of record supports separate evaluations for limitation of flexion and extension during the period on appeal. Specifically, from November 23, 2009 to November 13, 2013, the Veteran's right knee, at worst, demonstrated flexion to 40 degrees and extension limited to 15 degrees, which warrants a 10 percent evaluation under DC 5260 and a 20 percent evaluation under DC 5261, respectively. However, for the period from November 13, 2013 to April 30, 2016, the evidence shows that his right knee demonstrated, at worst, noncompensable range of motion for both flexion and extension. Finally, since April 30, 2016, the Veteran's right knee has demonstrated noncompensable flexion and extension limited to 10 degrees, which warrants a separate 10 percent evaluation under DC 5261. As described above, the Board has considered whether other potentially applicable diagnostic codes allow for a separate compensable and/or increased rating for the Veteran's right knee symptoms during the period on appeal. In summation, based on the Board's reasons and bases above, the Veteran will now be in receipt of the following disability ratings for his service-connected right knee disability: Diagnostic Code 5259: - 10 percent from March 1, 1981 to April 16, 1999; Diagnostic Code 5010: - 10 percent from July 15, 1985 to November 23, 2009; - 0 percent from November 23, 2009 to November 13, 2013; - 10 percent from November 13, 2013 to April 30, 2016; - 0 percent since April 30, 2016; Diagnostic Code 5257: - 10 percent from October 1, 1985; Diagnostic Code 5258: - 20 percent from April 16, 1999 Diagnostic Code 5260: - 10 percent from November 23, 2009 to November 13, 2013; Diagnostic Code 5261: - 20 percent from November 23, 2009 to November 13, 2013 - 0 percent from November 13, 2013 to April 30, 2016; - 10 percent since April 30, 2016; Lastly, when assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see 38 C.F.R. §§ 4.40, 4.45. However, as noted above, the Veteran is already in receipt of a separate 10 percent evaluation, when applicable, for his right knee pursuant to the provisions of 38 C.F.R. § 4.59. The Board has considered whether an extraschedular evaluation is warranted for the issue on appeal, however, in this case, the schedular evaluation is adequate. The symptoms of the Veteran's right knee have been accurately reflected by the schedular criteria. Without sufficient evidence reflecting that his disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture requires the assignment of an extraschedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). In reaching this determination, the Board considered the doctrine of reasonable doubt. However, the preponderance of the evidence is against an evaluation greater than that assigned. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). III. Service Connection for Myoclonus Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to successfully establish service connection, there must be competent and credible evidence showing (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain "chronic diseases" may be presumed to have been incurred in or aggravated by service if they manifest to a degree of 10 percent or more within one year of a Veteran's separation from service. 38 C.F.R. §§ 3.307, 3.309(a). This presumption is rebuttable by probative evidence to the contrary. Id. When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To be "shown in service," the disease identity must be established and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303(b). There is no "nexus" requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. Service connection may also be granted on a secondary basis for a condition that is not directly caused by the Veteran's service. 38 C.F.R. § 3.310. In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities and (2) the condition said to be proximately due to the service-connected disability or disabilities. Buckley v. West, 12 Vet. App. 76, 84 (1998); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition. See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310(b). Thus, service connection may be established either by showing (1) direct service incurrence or aggravation, (2) an etiological relationship between the claimed condition and a service-connected disability, or (3) using applicable presumptions, if available. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104 (a); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303 (a). A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran. In September 2013, the Veteran was afforded a VA mental disorders examination, where the examiner found a current diagnosis of myoclonus. The examiner noted that the Veteran began reporting myoclonic jerks around 2007. As the onset of the myoclonus was coincidental with the onset of treatment with amitriptyline, the Veteran stated that he believed the myoclonus was due to the medication. The examiner noted that a VA orthopedic surgeon stated "since the body jerk continued after the amitriptyline was discontinued, it is unlikely the medicines caused the body jerks." Ultimately, the September 2013 VA examiner indicated that he was unable to link the Veteran's myoclonus to his amitriptyline or other medicines prescribed to treat his service-connected disabilities. The examiner further noted that other diagnoses should be considered, such as "restless legs with myoclonus." An October 2016 VA Neurology Consult treatment record reflects that the Veteran reported jerks happening "inside and outside of the body" and it was noted that these jerks may affect the upper and lower torso. The VA neurologist's impression was intermittent myoclonus and indicated that he could not rule out psychogenic etiology. The neurologist further indicated that he reviewed the potential adverse effects of levetiracetam 250 mg bid with the Veteran, and noted that gabapentin can also potentially precipitate myoclonus. A follow-up appointment with Neurology in April 2017 shows the Veteran's dosage of levetiracetam was increased. He was again advised that Gabapentin can potentially precipitate myoclonus, and it was suggested that he decrease the dosage taken per day. Most recently, an expert medical opinion was provided in December 2017 by Dr. S.F., a VA neurologist. Dr. S.F. indicated that "it is well-established in the medical literature that amitriptyline, as well as other serotonergic medications, can precipitate myoclonic jerks." Generally, myoclonus resolves once the medication is withdrawn. However, given the Veteran is still taking Gabapentin (which can also cause myoclonus), Dr. S.F. indicated that it is possible that "the myoclonus which was precipitated by amitriptyline may be exacerbated by his current medications." In light of the foregoing, and resolving all reasonable doubt in favor of the Veteran, the evidence supporting the claim is, at the very least, as probative (meaning as competent and credible) as the evidence against the claim. Thus, the Board is of the opinion that the point of equipoise has been reached in this appeal. Undoubtedly, further medical inquiry can be undertaken with a view towards further developing this claim. However, in this regard, the Court has cautioned VA against seeking an additional medical opinion where favorable evidence in the record is unrefuted (or, as here, at worst evenly balanced for and against the claim) and indicated that it would not be permissible to undertake further development in this circumstance if the sole purpose was to obtain evidence against an appellant's claim. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). But see also Douglas v. Shinseki, 23 Vet. App. 19 (2009) (distinguishing Mariano and contrarily holding that VA may undertake the development of additional evidence if it is necessary to render an informed decision on the claim). Therefore, in light of the evidence of record and the applicable law, the Board concludes that entitlement to service connection for myoclonus as secondary to medications prescribed for service-connected disabilities is warranted. 38 C.F.R. § 3.310. ORDER Entitlement to service connection for myoclonus, as secondary to medications prescribed for service-connected disabilities, is granted For the rating period from July 1, 1985 to November 23, 2009, entitlement to a separate 10 percent evaluation, but no higher, under DC 5010, is granted. For the rating period from November 13, 2013 to April 30, 2016, entitlement to a separate 10 percent evaluation, but no higher, under DC 5010, is granted. For the rating period since October 1, 1985, but no earlier, entitlement to a separate 10 percent evaluation, but no higher, under DC 5257, is granted. For the rating period from March 1, 1981 to April 16, 1999, entitlement to a separate 10 percent evaluation, but no higher, under DC 5259, is granted. For the rating period since April 16, 1999, entitlement to an increased evaluation higher than 20 percent, under DC 5258, is denied. For the rating period from November 23, 2009 to November 13, 2013, entitlement to a separate 10 percent evaluation, but no higher, under DC 5260, is granted. For the rating period since November 13, 2013, the criteria for a compensable evaluation under DC 5260 is denied. For the rating period from November 23, 2009 to November 13, 2013, entitlement to a separate 20 percent evaluation, but no higher, under DC 5261, is granted For the rating period from November 13, 2013 to April 30, 2016, the criteria for a compensable evaluation under DC 5261 is denied. For the rating period since April 30, 2016, entitlement to a separate 10 percent evaluation, but no higher, under DC 5261, is granted. REMAND The evidence of record reflects that the Veteran might have been unemployable due to his service-connected right knee disability prior to August 10, 2012, which is the currently assigned effective date for his TDIU. Specifically, a January 2005 formal TDIU application (VA Form 21-8940) reflects that the Veteran last worked in nursing on January 19, 2005. See also December 2016 Private Vocational Expert Testimony. Additionally, during a November 2009 VA examination, the examiner opined that the Veteran is unemployable for any type of work which involves physical activity. However, at no point prior to August 10, 2012 has the Veteran met the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a), which means that a TDIU, if applicable, would need to be awarded on an extraschedular basis. However, the Board cannot consider entitlement to a TDIU on an extraschedular basis in the first instance. Instead, the Board is required to refer all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the schedular criteria under 38 C.F.R. § 4.16(a), to the Director of Compensation Services for extraschedular consideration. 38 C.F.R. § 4.16(b); Bowling v. Principi, 15 Vet. App. 1 (2001). Thus, as the Veteran has not met the schedular criteria for a TDIU, the Board finds that a remand is warranted to refer the TDIU claim to the Director for extraschedular consideration in the first instance. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran complete and return VA Form 21-8940 (an official TDIU application), providing his employment history with salary information and average hours worked, etc., from January 2005 to August 2012. 2. After completing the above and any other development deemed necessary by the AOJ, submit the claim to the Director of the Compensation Service for consideration of a TDIU on an extra-schedular basis. If this claim remains denied, send the Veteran and his representative a Supplemental Statement of the Case (SSOC) and give them time to respond to it before returning the file to the Board for further appellate consideration of this claim. The appellant 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). ______________________________________________ M. H. Hawley Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs