Citation Nr: 18148290 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 13-36 278 DATE: November 8, 2018 ORDER 1. The claim of entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, is not reopened, and the appeal is denied. 2. Entitlement to an increased rating higher than 20 percent for diabetes mellitus is denied. 3. Entitlement to an increased rating higher than 30 percent for a right foot disability is denied. 4. Entitlement to a 20 percent rating, but no higher, for the service-connected bilateral knee disability is granted, effective October 20, 2004. REMANDED 1. The issue of entitlement to an earlier effective date, prior to October 1, 2011, for ischemic heart disease (IHD) is remanded. 2. The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. 3. The issue of entitlement to an earlier effective date, prior to October 1, 2011, for the award of special monthly compensation (SMC) is remanded. FINDINGS OF FACT 1. A final January 2005 rating decision denied the Veteran’s claim for service connection for hypertension; although notified of the decision, the Veteran did not express an intent to appeal the decision, and new and material evidence was not added within one year of that decision. 2. Additional evidence associated with the claims file since the January 2005 rating decision is cumulative and redundant of the evidence of record at the time of the prior denial, it does not relate to unestablished facts necessary to substantiate his claim for service connection for hypertension, and it does not raise a reasonable possibility of substantiating the claim. 3. Throughout the appeal period, diabetes mellitus type II has been managed using insulin and oral hypoglycemics; regulation of activities was not required to control diabetes. 4. Throughout the appeal period, the Veteran’s right foot disability has been characterized by severe symptomatology, with no loss of use of his right foot. 5. Throughout the appeal period, the Veteran’s bilateral knee disability has been manifested by functional loss that equates to limitation of flexion to between 15 and 30 degrees, but not less than 15 degrees. CONCLUSIONS OF LAW 1. The January 2005 rating decision that denied service connection for hypertension is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. § 3.104, 20.302, 20.1103 (2017). 2. As evidence received since the January 2005 rating decision is not new and material, the criteria for reopening the Veteran’s claim for service connection for hypertension are not met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 3. Throughout the period on appeal, the criteria for an increased rating higher than 20 percent for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.119, Diagnostic Code (DC) 7913. 4. Throughout the appeal period, the criteria for an increased rating higher than 30 percent for a right foot disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, DC 5299-5284 (2017). 5. Throughout the appeal period, the criteria for a 20 percent disability rating, but no higher, for a bilateral knee disability have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102. 3.159, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5003-5260, 5260-5017 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1966 to September 1969. These matters come before the Board of Veterans’ Appeals (BVA or Board) on appeal from August 2011 and September 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Washington, DC, and St. Louis, Missouri, respectively. Jurisdiction currently remains with the RO in St. Louis, Missouri. In June 2015, the Board remanded this appeal for further development.   New and Material Evidence The claim of entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, is not reopened, and the appeal is denied. Rating actions are final and binding based on the evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 U.S.C. § 5108; 38 C.F.R. § 3.104(a). The claimant has one year from the notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b), (c); 38 C.F.R. § 3.160(d), 20.200, 20.201, 20.202, 20.302(a) (2017). However, if new and material evidence is presented or secured, VA shall reopen and review the former disposition of the claim. 38 U.S.C. § 5108 (2012). “New and material evidence” is defined as evidence not previously submitted to the agency decision makers which is neither cumulative or redundant, which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what evidence is new and material, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Id. The Veteran’s claim for service connection for hypertension was denied in a January 2005 rating decision. The RO determined that the evidence of record failed to demonstrate that the Veteran’s hypertension was secondary to his service-connected diabetes or his military service. At the time of the January 2005 rating decision, the evidence of record included service treatment records and post-service VA treatment records. The Veteran was notified of the decision and his appellate rights in January 2005. However, he did not file a notice of disagreement in response to the rating decision. No further communication regarding his claim was received until October 2012, when VA received his petition to reopen. Therefore, the January 2005 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 3.104, 20.302, 20.1103. Evidence added to the record since the January 2005 rating decision includes additional VA treatment records. The new evidence of record does not contain any indication that the Veteran’s hypertension is related to his military service, or that it has been caused or aggravated by his service-connected diabetes. In addition, the Veteran’s current claim indicating that his hypertension is related to his diabetes is simply a reiteration of his previously considered claim and assertions. Thus, the additional evidence of record does not further suggest that his hypertension is related to service. The Board acknowledges that the additional medical evidence added to the record demonstrates that the Veteran has continued to receive treatment for hypertension. However, the Veteran has not submitted any new evidence to support his contentions that his hypertension is related to his diabetes or military service. Thus, the additional evidence of record does not suggest that this diagnosis has been linked to his diabetes or military service and cannot be considered new and material evidence. In sum, as the evidence submitted since the January 2005 rating decision is not new and material, the claim for service connection for hypertension is not reopened and the appeal is denied. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating 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. 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. All benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See 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, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 50 (2007). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran’s service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2017). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id. (quoting 38 C.F.R. § 4.40). When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Painful motion without functional limitation, however, cannot serve as the basis for a rating in excess of the minimum. Mitchell, supra. 1. Entitlement to an increased rating higher than 20 percent for diabetes mellitus is denied. For the entire rating period on appeal, diabetes mellitus has been rated at 20 percent under the criteria at 38 C.F.R. § 4.118, DC 7913. Under DC 7913, diabetes mellitus which is manageable by restricted diet only is rated at 10 percent. Diabetes mellitus requiring insulin and restricted diet, or oral hypoglycemic agent and restricted diet, is rated at 20 percent. Diabetes mellitus requiring insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) is rated at 40 percent. Diabetes mellitus requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year, or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately rated, is rated at 60 percent. Diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately rated, is rated at 100 percent. Note (1) to DC 7913 provides that compensable complications of diabetes mellitus are to be rated separately unless they are part of the criteria used to support a 100 percent rating (under DC 7913). Noncompensable complications are considered part of the diabetic process under DC 7913. Note (2) provides that, when diabetes mellitus has been conclusively diagnosed, the adjudicator is not to request a glucose tolerance test solely for rating purposes. 38 C.F.R. § 4.119. After review of the lay and medical evidence of record, the Board finds that the weight of the evidence is against a finding that management of diabetes mellitus requires a regulation of activities as required for a 40 percent rating under DC 7913. Throughout the rating period on appeal, management of diabetes mellitus required the use of insulin and an oral hypoglycemic agent, which is consistent with the 20 percent rating criteria under DC 7913. The evidence does not otherwise indicate that management of diabetes mellitus also required avoidance of strenuous occupational and recreational activities, which is the additional criterion necessary for the next higher 40 percent schedular rating. See Camacho v. Nicholson, 21 Vet. App. 360 (2007) (holding that the criteria for rating diabetes mellitus are conjunctive, and that each element of the criteria is needed to meet the requirements for the specified evaluation). For the increased rating period on appeal, there is no evidence to suggest the Veteran was required to avoid strenuous occupational and recreational activities to control his diabetes mellitus. Indeed, the July 2013 and September 2016 VA examination reports document that the Veteran’s treatment included insulin and prescribed oral hypoglycemic agents. The examiners stated that the Veteran did not require regulations of activities. Further VA treatment records provide no evidence that the diabetes mellitus required that his activities be regulated. As such, the weight of the evidence is against a finding that a rating higher than 20 percent under DC 7913 for diabetes mellitus is warranted for any period. 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to an increased rating higher than 30 percent for a right foot disability is denied. The Veteran is currently assigned a 30 percent rating for his right foot disability under 38 C.F.R. § 4.71a, DC 5299-5284. DC 5284 rates other foot injures, which contemplate his history of calcaneus comminuted fracture with subtalar ankylosis, os calcis spur removal, and triple arthrodesis. A 10 percent disability rating is assigned for moderate symptoms. A 20 percent disability rating is assigned for moderately severe symptoms. A 30 percent disability rating is assigned for severe symptoms. The rating criteria direct that a 40 percent disability rating should be assigned for actual loss of use of the foot. 38 C.F.R. § 4.71a, DC 5283, Note. The Board is sympathetic to fact that the Veteran has significant foot symptoms. However, despite the severe abnormalities noted in the July 2013 and September 2016 VA examination reports, the Board finds that the preponderance of the evidence does not support a finding that the Veteran has lost the use of his right foot. Notwithstanding this condition, numerous VA treatment notes and examination reports suggest that the Veteran has been able to continue walking despite his symptoms. For instance, at both VA examinations, the Veteran reporting ambulating regularly with a walker despite the pain and swelling in his right foot. Treatment notes from April 2013 and July 2013 continued to include references to the Veteran’s ongoing ambulation. The ongoing evidence that the Veteran has continued to be able to walk, despite his symptoms, strongly suggests that he has not lost the use of his right foot, as is required to warrant a 40 percent evaluation for his right foot disability. The Board has also considered whether repeated use over time or flare-ups would contribute to additional functional loss and warrant a higher rating pursuant to DeLuca. Although the September 2016 VA examiner noted that pain during a flare-up would limit the Veteran’s ability to walk or stand, the competent and credible evidence of record does not indicate that such a flare-up would cause such significant functional impairment that the Veteran would completely lose the use of his foot. As such, the Board finds that the preponderance of the competent evidence of record is against the Veteran’s claim and the criteria for an evaluation higher than 30 percent for a right foot disability have not been met. The Board recognizes that the Veteran has reported experiencing numerous symptoms related to his right foot disability. However, the assignment of a 30 percent rating for a severe injury of the foot contemplates the Veteran’s foot symptoms, including pain, swelling, occasional infections, and difficulties with standing or ambulation. In making its determination, the Board has considered whether other diagnostic codes are applicable that could provide a higher rating. However, the only rating criteria related to a foot disability that could potentially provide a higher rating is the criteria for acquired flatfoot or claw foot (pes cavus). See 38 C.F.R. § 4.71a, DC 5276, 5278. However, as there is no indication that the Veteran has acquired flatfoot or claw foot, these diagnostic codes are inapplicable. Accordingly, a separate evaluation beyond the 30 percent rating under 5284 is not warranted in this claim and the Veteran’s claim for an evaluation higher than 30 percent for a right foot disability must be denied. 3. Entitlement to a 20 percent rating, but no higher, for the service-connected bilateral knee disability is granted, effective October 20, 2004. Service connection for the Veteran’s bilateral knee disability was granted based on arthritis with limitation of motion in an August 2011 rating decision, at which time a 10 percent rating was assigned effective October 20, 2004, in each knee. The Veteran disagreed with this initial rating and certified an appeal to the Board. In June 2015, the Board referred the matter to the Director of Compensation Service for extraschedular consideration. In a November 2017 Advisory Opinion, the Direction of Compensation awarded a 20 percent rating for the bilateral knees, on an extraschedular basis based upon the reports of the knees catching and giving way, effective September 1, 2016. The Veteran contends that his symptomatology related to his bilateral knee disability is more severe than currently rated. His right knee has been rated under DC 5003-5260 at 10 percent disabling prior to September 1, 2016, and 20 percent disabling thereafter. His left knee has been rated under DC 5260-5017 at 10 percent disabling prior to September 1, 2016, and 20 percent disabling thereafter. Knee disabilities are unique in the rating code, as they are one of a few orthopedic disabilities in which a Veteran may receive multiple ratings based on separate symptoms in the same joint. Although the law generally prevents considering the same symptoms under various diagnoses to support separate ratings, some of the relevant DCs for the knee have been interpreted to apply to different functions of the knee, therefore warranting separate consideration. Specifically, the evidence may warrant separate ratings for limitation of flexion of the knee, limitation of extension of the knee, and lateral instability and recurrent subluxation of the knee. The Board will explore all possibilities in this case. DC 5260 rates based on limitation of flexion. When flexion of the leg is limited to 60 degrees, a noncompensable rating is warranted. When flexion is limited to 45 degrees, a 10 percent rating is warranted. Flexion limited to 30 degrees warrants a 20 percent rating, while flexion limited to 15 degrees warrants the maximum 30 percent rating. However, where the Veteran shows noncompensable limitation of motion, but painful motion and functional impairment are evident, he is entitled to a 10 percent rating. DC 5261 rates based on limitation of extension. That code provides that when extension is limited to 5 degrees, a noncompensable rating is assigned. Extension limited to 10 degrees warrants a 10 percent rating. When limitation of extension is at 15 degrees, a 20 percent rating is warranted. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Lastly, extension limited to 45 degrees warrants the maximum, 50 percent rating. The diagnostic criteria applicable to recurrent subluxation or lateral instability is found at 38 C.F.R. § 4.71a, DC 5257 (2017). Under that code, slight impairment is assigned a 10 percent rating, moderate impairment a 20 percent rating, and severe impairment a 30 percent rating. The terms “mild,” “moderate,” and “severe” are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The use of terminology such as “mild” or “moderate” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding a higher rating. 38 C.F.R. §§ 4.2, 4.6. Other DCs pertaining to the knee include DC 5258, under which a maximum 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. DC 5259 holds that symptoms due to the removal of the semilunar cartilage of either knee warrant a 10 percent rating, which is the maximum rating under the diagnostic code. Because DCs 5258 and 5259 have been interpreted as already contemplating limitation of motion of the knee generally (which means it contemplates limitation of flexion and extension), the law does not allow for a separate rating under DCs 5259 and 5260 and/or 5261, because that would be compensating the same limitation of motion more than once. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a 10 percent evaluation is assignable to each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003. The diagnostic criteria applicable to impairment of the tibia and fibula are found at 38 C.F.R. § 4.71a, DC 5262 (2017). Under that code, a 10 percent evaluation is warranted when malunion of the tibia and fibula is productive of slight knee or ankle disability. A 20 percent evaluation is warranted when malunion of the tibia and fibula is productive of moderate knee or ankle disability, and a 30 percent evaluation is warranted when such disability is marked. A 40 percent evaluation is warranted for nonunion of the tibia and fibula, with loose motion, requiring a brace. Finally, the diagnostic criteria applicable to knee replacement (prosthesis) are found at 38 C.F.R. § 4.71a, DC 5055 (2017). The Veteran first underwent a VA examination for his knees in June 2009. He reported symptoms including stiffness, weakness, instability, and moderate weekly flare-ups. He denied experiencing pain, giving way, locking episodes, episodes of dislocation or subluxation, decreased speed of joint motion, or incoordination. The Veteran was unable to stand for more than a few minutes, and could walk a quarter of a mile. He did not require an assistive device for ambulation. The examiner noted crepitation and edema of both knees, with grinding of the left knee. However, there was no evidence of clicking or snapping, patellar or meniscus abnormality, instability, or masses behind either knee. Flexion of the left knee was to 100 degrees, and to 90 degrees for the right knee. Extension of both knees was to zero degrees. The was objective evidence of pain with motion for both knees. After repetitive motion, flexion of the left knee was to 90 degrees, and to 80 degrees for the right knee. The examiner noted joint ankylosis, but did not specify which joint demonstrated such symptomatology. In July 2010, the Veteran was afforded a second VA examination for his bilateral knee disability. He reported symptoms including stiffness, occasional weakness, giving way, pain, decreased speed of motion, occasional effusions, swelling, and flare-ups. He was unable to define a flare-up of his pain, but stated that these instances did not prevent him from getting out of bed. He denied experiencing locking episodes, instability, or episodes of dislocation or subluxation. The Veteran was unable to stand for more than a few minutes, and could walk with frequent breaks. He used a walker to assist with ambulation. The examiner noted marked crepitus and tenderness of both knees, as well as edema of both knees and grinding of the right knee. Reflex testing was normal, and motor testing revealed active movement against some resistance. There was no evidence of patellar or meniscus abnormalities, instability, clicking or snapping, or masses behind either knee. Flexion of both knees was to 100 degrees, with extension was to zero degrees. There was objective evidence of pain with motion for both knees. After repetitive motion, flexion of both knees was to 120 degrees, with pain, as the examiner noted improvement of range of motion with repetitive use. In July 2011, the Veteran underwent another VA examination for his knees. He reported symptoms including pain, swelling, weakness, stiffness, giving way, lack of endurance, and tenderness. He stated that his flare-ups lasted for two days, and resulted in additional limitation of motion and function impairment. He denied experiencing locking of either knee. The Veteran used a cane and a walker to assist with ambulation. Flexion of the right knee was to 120 degrees, with extension to zero degrees. Flexion of the left knee was to 124 degrees, with extension to zero degrees. All ranges of motion exhibited pain. The examiner indicated that an adequate examination could not be conducted due to the Veteran’s response to pain. There was a decrease in strength of both knees, but no findings of instability. Repetitive use testing could not be conducted at that time. The RO afforded the Veteran another knee examination in July 2013. He reported daily flare-ups, which increased with prolonged standing and walking. Flexion of the right knee was to 120 degrees, with evidence of pain at 90 degrees. Flexion of the left knee was to 110 degrees, with evidence of pain at 80 degrees. Extension was normal bilaterally. There was no additional loss of range of motion with repetitive use testing. However, there was less movement than normal, weakened movement, excess fatigability, pain on movement, swelling, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. The examiner noted pain on palpation or tenderness for both knees. Muscle strength testing revealed active movement against some resistance. Joint stability testing was normal, and there was no evidence of patellar subluxation or dislocation. The Veteran denied experiencing any tibial or fibular impairment, or any meniscal conditions. He had not previously undergone any knee surgeries. Furthermore, he regularly used a walker to assist with ambulation. Most recently, in September 2016, the Veteran underwent a fifth VA examination to assess his bilateral knee disability. He reported symptoms including swelling, catching, and difficulty squatting and kneeling. He stated that the catching of his knees occasionally resulted in falls, but did not resemble a “locking” feeling. The Veteran described flare-ups, which resulted from ambulation standing, using stairs, kneeling, and squatting. These activities also resulted in functional impairment after repeated use over time. Flexion of the right knee was to 90 degrees, with normal extension. Flexion of the left knee was to 95 degrees, with normal extension. Both knees exhibited pain, but this did not result in functional loss. Additionally, both knees demonstrated pain with weight-bearing. The examiner noted evidence of localized tenderness or pain on palpation, as well as crepitus. The Veteran could perform repetitive use testing, with at least three repetitions, with no additional function loss or limitation of motion. As the Veteran was not examined during a flare-up or after repeated use over time, the examiner indicated that she could not opine regarding additional loss of range of motion or limitations on functional ability without speculation. However, she stated that the examination was neither inconsistent or consistent with the Veteran’s reports regarding flare-ups and repeated use over time. The report listed disturbance of locomotion and interference with standing as additional contributing factors of the bilateral knee disability. Muscle strength testing was normal, with no evidence of muscle atrophy. There was no evidence of ankylosis or instability in either knee. The Veteran denied experiencing tibial or fibular impairment, or a meniscus condition. He regularly used a walker to assist with ambulation. An addendum opinion was obtained in March 2018, in which the September 2016 VA examiner concluded that there was evidence of pain on passive range of motion testing. However, there was no evidence of pain when the knee joints were used in non-weight bearing instances. Throughout the entire appeal period, the evidence of symptomatology of the Veteran’s limitation of motion and reported functional impairment and flare-ups reflects that he consistently experienced catching and giving way of the knees throughout the majority of the appeal period. See July 2010 and July 2011 VA Examination Reports. Additionally, an October 2004 VA treatment record documented significantly limited range of motion, as well as an inability to perform flexion or extension due to pain. See VA Treatment Record dated 31, 2004. Therefore, the Board finds that, when affording the Veteran the benefit of the doubt, a 20 percent rating is warranted for his service-connected bilateral knee disability, effective October 20, 2004, the date of the award of service connection. The Board notes that for a 20 percent evaluation under DC 5260, the Veteran must demonstrate flexion of the knees to 30 degrees, but not greater than 45 degrees. For the period on appeal, such impairment has not been documented as flexion of both knees has been no less than 80 degrees. However, the evidence of record indicates that the Veteran consistently experienced catching of the knees, which resulted in incidents of falling, as well as significantly painful motion. Thus, the Board finds that a 20 percent rating is warranted based on the symptomatology of the Veteran’s reported functional impairment and additional symptomatology in the examination reports. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. 202. The Board further notes that for a 30 percent evaluation, the Veteran must demonstrate forward flexion of the knees to 15 degrees under DC 5260. Such impairment was simply not documented as forward flexion of both knees was not limited to 15 degrees or less upon any of the VA examinations. Therefore, the Board finds that the preponderance of the evidence is against a rating higher than 20 percent since October 20, 2004, as the Veteran has not met the criteria under the general rating code. The Board also finds that there is no basis for the assignment of any higher rating beyond 20 percent based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. at 204-7. Competent medical evidence reflects that the currently assigned 20 percent rating properly compensates him for the extent of functional loss resulting from any such symptoms for the applicable periods on appeal. Although it was noted on the VA examination reports that the Veteran exhibited pain on motion and had additional loss of motion due to pain, the functional loss is not equivalent to limitation of flexion to 15 degrees or less to meet the criteria for a 30 percent evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. Additionally, the Board has considered the Court’s recent holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017), addressing 38 C.F.R. § 4.40, which states that a VA examiner must “express an opinion on whether pain could significantly limit functional ability” and the examiner’s determination in such regard “should, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups.” In this regard, the Court concluded that, when a VA examiner is asked to provide an opinion as to additional functional loss during flare-ups of a musculoskeletal disability, the examiner must obtain information from the Veteran regarding the severity, frequency, duration, characteristics, and/or functional loss related to such flare-ups. The Court further concluded that, if the examination was not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. Additionally, if the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that he/she has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran). In this case, the Board finds the musculoskeletal examinations of record are adequate for rating purposes and that a higher disability rating is not warranted based on limitation of motion, even when considering the functional effects of pain, to include during flare-ups and after repetitive use. At the examinations, the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed. Here, the Veteran consistently reported flare-ups at his VA examinations, primarily resulting from physical activities. He generally described them as moderate in severity and lasting for a duration of several days, but they were not severe enough as to prevent him from getting out of bed. Furthermore, the Veteran did not report that he had loss of motion to the degree required for a higher rating higher than 20 percent due to flare-ups during the appeal period. In the Mitchell case, the Court found that a veteran’s contention that pain, even if experienced throughout the range of motion on examination, does not warrant a higher rating under the diagnostic codes providing ratings for limitation of motion. Rather, it is the functional limitation, i.e., the additional limitation of motion, caused by pain or the other orthopedic factors under DeLuca and 38 C.F.R. §§ 4.40, 4.45, 4.59, that must be considered in determining whether a higher rating is warranted. Thus, flare-ups must be quantifiable and must result in limitation of motion or function beyond that contemplated by the already provided evaluation. Notably, regulation provides that rating agencies will handle cases affected by change of medical findings or diagnosis to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. 38 C.F.R. § 3.344. It stands to reason that the flare-up must be of such length as to establish that the overall impairment is more severe than currently evaluated, rather than a brief snapshot in time. Here, the medical evidence regarding flare-ups would not warrant an evaluation higher than 20 percent, since such flare-ups do not additionally limit function in a quantifiable way and are not of such length or duration that a staged rating would not violate the rule regarding stabilization of ratings. Therefore, the Board finds that such factors do not result in functional loss more nearly approximating flexion limited to 15 degrees or less. The Board has also considered the possibility of separate ratings for limitation of extension under DC 5261. Such ratings are not warranted during the appeal period. VA examination reports have consistently reported degrees of extension that are within normal limits, and in this regard, there was no degree of motion that was limited to a compensable degree. Thus, the Board finds that the preponderance of the evidence is against a finding that a separate rating for bilateral knee limitation of extension is warranted at any time during the period on appeal. Although there have been lay reports of instability of both knees, stability testing has consistently been documented as normal in the VA examination reports. The Board finds the VA examinations more probative as to whether the Veteran experiences the type of giving way or instability required for a separate rating under Diagnostic Code 5257. Therefore, the Board finds that a separate rating is not warranted under DC 5257 for recurrent subluxation or lateral instability at any point during the appeal. Throughout the appeal period, there is no indication of dislocated semilunar cartilage accompanied by frequent episodes of locking, pain, and effusion. Thus, a separate compensable rating under DC 5258 is not warranted. The record is also silent as to any reports of meniscus removal. Thus, such DC 5259 does not provide for a greater rating. The medical evidence is also negative for a diagnosis of ankylosis or genu recurvatum, precluding a rating under DCs 5256 and 5263 for the right knee. The record is also silent for any complaints, treatments or diagnoses of an impairment of the tibia or fibula. Thus, a rating under DC 5262 is not warranted. The Board finds that the preponderance of the evidence supports a 20 percent disability rating, but no higher, for the bilateral knee disability, effective October 20, 2004. See 38 C.F.R. § 4.71a, DC 5260. Regarding the above decided claims, the Veteran has not 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). REASONS FOR REMAND 1. The issue of entitlement to an earlier effective date, prior to October 1, 2011, for IHD is remanded. This matter was previously before the Board in June 2015. At that time, the Board remanded this issue for the issuance of a Statement of the Case (SOC). The Board noted that the record included a pending notice of disagreement dated in September 2014. Review of the record indicates that the RO awarded an earlier effective date in a January 2017 rating decision, which the Veteran disagreed with in January 2018. The notice of disagreement is still pending, and there is no indication that a statement of the case is forthcoming or that development is ongoing. The agency of original jurisdiction (AOJ) must comply with the Board’s prior remand directives and issue an SOC for the matter. See Stegall v: West, 11 Vet. App. 268 (1998); Manlincon v. West, 12 Vet. App. 238 (1999). 2. The issues of entitlement to TDIU and an earlier effective date for SMC are remanded. In light of the award of a 20 percent rating for the bilateral knee disability, effective October 20, 2004, granted herein, and the remand of entitlement to an earlier effective date for IHD, the Board finds that the intertwined issues of entitlement to a TDIU and an earlier effective date for SMC should be readjudicated. The matters are REMANDED for the following action: 1. Issue an SOC on the issue of entitlement to an earlier effective date for IHD. The Veteran must be informed of the criteria for perfecting the appeal. If the Veteran perfects an appeal, ensure that all indicated development is completed before the issue is returned to the Board for appellate action. 2. Implement the award of a 20 percent rating for the bilateral knee disability. Then, readjudicate the remaining claims on appeal. H. M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Erin J. Trojanowski, Associate Counsel