Citation Nr: 21002945 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 15-11 772 DATE: January 19, 2021 ORDER Entitlement to service connection for Meniere's syndrome is denied. Entitlement to service connection for a psychiatric disability, to include anxiety disorder and depressive disorder, is denied. Entitlement to a rating in excess of 10 percent for right knee retropatellar pain syndrome is denied. Entitlement to an initial rating in excess of 0 percent for limitation of extension of the right knee is denied. Entitlement to a separate 10 percent rating, but not higher, for a right knee disability, based on slight lateral instability of the knee pursuant to Diagnostic Code 5257, effective September 27, 2012, but not earlier, is granted. Entitlement to a separate 20 percent rating, but not higher, for a right knee disability of dislocated semilunar cartilage with locking and effusion into the joint, pursuant to Diagnostic Code 5258, effective September 27, 2012, but not earlier, is granted. FINDINGS OF FACT 1. The Veteran failed, without good cause, to report for VA examination in December 2019 that was necessary to evaluate the claims of entitlement to service connection for Meniere’s syndrome and service connection for a psychiatric disability. 2. Psychiatric disabilities have not been shown to be etiologically related to any incident or injury incurred during active service or secondary to any service-connected disability. 3. Meniere’s syndrome has not been shown to be etiologically related to any incident or injury incurred during active service or secondary to any service- connected disability. 4. A right knee disability was mainly manifested by pain and discomfort; it has not been manifested by flexion limited to 45 degrees or less for an objectively sustained period, extension limited to 10 degrees or greater for an objectively sustained period, ankylosis, objective evidence of recurrent subluxation, lateral instability, impairment of the tibia and fibula, or genu recurvatum. 5. Effective September 27, 2012, the Veteran’s a right knee disability was manifested by frequent joint locking, pain, and effusion. 6. Effective September 27, 2012, the evidence of record shows slight right knee lateral instability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a psychiatric disability have not been met. 38 U.S.C. §§ 1110, 1131, 1137, 5103A, 5107; 38 C.F.R. § 3.655. 2. The criteria for entitlement to service connection for Meniere’s syndrome have not been met. 38 U.S.C. §§ 1110, 1131, 1137, 5103A, 5107; 38 C.F.R. § 3.655. 3. The criteria for entitlement to an initial rating in excess of 0 percent for limitation of extension of the right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5256-5263. 4. The criteria for entitlement to a rating in excess of 10 percent for right knee retropatellar pain syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5256-5263. 5. Resolving reasonable doubt in favor of the Veteran, the criteria for a separate 10 percent rating, but not higher, for slight right knee instability, effective September 27, 2012, but not earlier, have been met.  38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5257. 6. The criteria for entitlement to a 20 percent rating, but not higher, for a right knee disability with effusion into the joint, pursuant to Diagnostic Code 5258, effective September 27, 2012, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5258. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United Army from June 1974 to June 1978 and from February 1979 to February 2005. This matter comes to the Board of Veterans’ Appeals (Board) on appeal of a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In an April 2015 VA Form 9, Appeal to Board of Veterans’ Appeals, the Veteran requested a hearing before the Board.  However, in October 2015 correspondence, the Veteran withdrew the hearing request.  Accordingly, the Board considers the request for a hearing to be withdrawn and will adjudicate the claim accordingly. 38 C.F.R. § 20.704(d), (e). In January 2019, the Board remanded these claims to the Agency of Original Jurisdiction for additional action. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). Service Connection Service connection may be established for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a causal relationship between the claimed in service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be established for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in-service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Secondary service connection may be established for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § § 3.310. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and may provide sufficient support for a claim of service connection. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Therefore, the Board must assess the competence and credibility of lay statements. Barr v. Nicholson, 21 Vet. App. 303 (2007). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while weight and credibility are factual determinations going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence to prevail. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). While the Board must provide reasons and bases supporting a decision, there is no need to discuss, in detail, the evidence submitted by or on behalf of the Veteran. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). 1. Entitlement to service connection for Meniere's syndrome The Veteran asserts that service connection for Meniere’s syndrome is warranted as the claimed disability is secondary to service-connected vertigo. In a February 2012 private treatment record, a private examiner diagnosed Meniere’s syndrome. In an August 2013 VA medical examination report, a VA examiner stated that there was no pathology to make a diagnosis of Meniere’s syndrome. In the August 2013 VA medical examination report, the VA examiner did not report reviewing the February 2012 private treatment record diagnosing Meniere’s syndrome. In a subsequent September 2014 VA medical examination report, a VA examiner indicated that the Veteran had been diagnosed with “Meniere’s syndrome or endolymphatic hydrops” in 2013. However, the examiner did not indicate whether there was current evidence of that condition or opine whether the condition was related to service. Subsequently, as a result, in a January 2019 Remand, the Board requested an examination and medical opinion regarding the etiology of the claimed Meniere’s syndrome. The Veteran was scheduled for VA examination in December 2019 pursuant to the January 2019 Board remand. The Veteran did not report for that examination and did not provide any good cause for not attending the examination. On review of the record, there is no indication, either by the Veteran or the representative, that an attempt has been made to reschedule or otherwise provide good cause for failure to appear for the VA examination. Moreover, there is no indication in the record that the letter notifying him of the scheduled December 2019 VA examination was not received. Ashley v. Derwinski, 2 Vet. App. 62 (1992) (presumption of regularity that public officers have properly discharged their official duties in absence of clear evidence to the contrary); Mindenhall v. Brown, 7 Vet. App. 271 (1994) (presumption of regularity to RO actions). The Board finds no evidence of any VA error in notifying or assisting the Veteran. While VA has a statutory duty to assist in developing evidence pertinent to a claim, a Veteran also has a duty to assist and cooperate with VA in developing evidence. The duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). VA’s duty must be understood as a duty to assist a Veteran in developing his or her claim, rather than a duty on the part of VA to develop the entire claim with the Veteran performing a passive role. Turk v. Peake, 21 Vet. App. 565 (2008). Therefore, remand for an additional VA examination is not warranted. When entitlement cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for a scheduled examination, or reexamination, the claim shall be denied. 38 C.F.R. § 3.655. The Board recognizes that the Veteran has asserted a current disability is secondary to a service-connected disability. However, the Board finds that, the Veteran, as a layman without the appropriate medical training and expertise, is not competent to provide a probative opinion as to whether Meniere’s syndrome was either caused or aggravated beyond its normal progression by any incident of active service, or by another service-connected disability. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Veteran has not been shown to possess the adequate medical knowledge, education, or training, to competently opine as to the diagnosis or etiology of any disability. In addition, the Veteran has not provided any medical statement, from a competent medical provider, relating the claimed disability to service or a service-connected disability. The Board remanded this claim for further consideration and development, to include providing the Veteran with a VA examination to diagnose and determine the etiology of any Meniere’s syndrome. The Board specifically requested that, had the Veteran appeared and participated at the scheduled examination, the examiner was to opine whether the claimed disability had its onset during service or was related to service or a service-connected disability. However, the Veteran was provided with notice of the examination and did not appear. Consequently, adjudication on the merits of the existing record is proper. Therefore, as no competent, medical evidence has been presented to show any relationship between the Veteran’s service and the claimed disability, service connection must be denied. As the Veteran, without good cause, did not attend a scheduled VA examination, and as entitlement to service connection for Meniere’s syndrome cannot be established without a current VA examination, the Board will adjudicate on the basis of the evidence of record. The Board finds that the preponderance of the evidence is against a finding that Meniere’s syndrome is related to service; any event, injury, or disease during service; or a service-connected disability. Accordingly, the claim must be denied. 38 C.F.R. § 3.655. 2. Entitlement to service connection for a psychiatric disability, to include anxiety disorder and depressive disorder. The Veteran contends that he is entitled to service connection for a psychiatric disability. Specifically, the Veteran asserts that a current psychiatric disability is directly related to being subjected to wartime conditions while on active duty. In the alternative, the Veteran contends that a current psychiatric disability is secondary to service-connected vertigo. The Board notes that the Veteran has established service connection for insomnia due to service-connected lumbar spine and foot disabilities. The Veteran’s service medical records do not show treatment for, complaints of, or a diagnosed psychiatric disability while on in-service. In August 2013 and March 2015 VA psychiatric examination reports, VA examiners diagnosed insomnia, but specifically stated that the Veteran did exhibit sufficient symptomatology to support a diagnosis for anxiety disorder. The Veteran has since been established service connection for insomnia. In a March 2016 VA psychiatric examination report, a VA examiner stated that the Veteran exhibited symptoms of depressed mood and anxiety. In remarks provided at the end of the report, the examiner noted that the Veteran’s psychiatric test scores appeared to match those of individuals with depression and anxiety. Despite those findings and remarks, the examiner diagnosed only insomnia without any comment as to the reasons for not diagnosing any depressive or anxiety disorder. In a January 2019 Remand, the Board requested further psychiatric examination and requested a medical opinion regarding the etiology of the Veteran's claimed psychiatric disability. The Veteran was scheduled for VA psychiatric examination in December 2019 in efforts to diagnose any current psychiatric disability and to obtain a medical opinion in regard to any link between any psychiatric disability and active service. The Veteran did not report for that examination or provide any good cause for not reporting. On review of the record, there is no indication, either by the Veteran or representative, that an attempt has been made to reschedule or otherwise provide good cause for failure to attend the scheduled VA examination. Moreover, there is no indication in the record that the letters notifying the Veteran of the scheduled VA examinations were not received. Ashley v. Derwinski, 2 Vet. App. 62 (1992) (presumption of regularity that public officers have properly discharged their official duties in absence of clear evidence to the contrary); Mindenhall v. Brown, 7 Vet. App. 271 (1994) (presumption of regularity to RO actions). The Board finds no evidence of any VA error in notifying or assisting the Veteran. While VA has a statutory duty to assist in developing evidence pertinent to a claim, a Veteran also has a duty to assist and cooperate with VA in developing evidence. The duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). VA’s duty must be understood as a duty to assist a Veteran in developing a claim, rather than a duty on the part of VA to develop the entire claim with the Veteran performing a passive role. Turk v. Peake, 21 Vet. App. 565 (2008). Therefore, remand for an additional VA examination is not warranted. When entitlement cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for a scheduled examination, or reexamination, the claim shall be denied. 38 C.F.R. § 3.655. The Board recognizes that the Veteran has asserted that a psychiatric disability is due to active duty service. However, there is no competent medical opinion to establish a nexus between a current psychiatric disability and active service or a service-connected disability. The Board finds that, the Veteran, as a layman without the appropriate medical training and expertise in psychological disabilities, is not competent to provide a probative opinion as to whether a psychiatric disability was either caused or aggravated beyond its normal progression by any incident of active service, or by a service-connected disability. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Veteran has not been shown to possess the adequate medical knowledge, education, or training, to competently opine as to the diagnosis or etiology of any psychiatric disability. VA has attempted to assist in the development of this claim, including scheduling the Veteran for a psychiatric examination to determine the etiology of the claimed psychiatric disabilities. The Board specifically requested that, had the Veteran appeared and participated at the scheduled examination, the examiner was to offer opinions as to whether the claimed psychiatric disorder was related to service. The Veteran was provided with notice of the examination and did not appear. Consequently, adjudication on the merits of the existing record is proper. Therefore, as no evidence has been presented to show any relation between the Veteran’s service and a psychiatric disability, service connection must be denied. In addition, the Veteran has not submitted any competent medical evidence relating a current psychiatric disability to service. As the Veteran, without good cause, did not report for VA examination, and as entitlement to service connection for a psychiatric disability cannot be established without a current VA examination, the Board will adjudicate on the basis of the evidence of record. The Board finds that the preponderance of the evidence is against a finding that any current psychiatric disability is related to service; any event, injury, or disease during service; or any service-connected disability. Accordingly, the claim must be denied. 38 C.F.R. § 3.655. Increased Ratings 3. Entitlement to an initial rating in excess of 0 percent for limitation of extension of the right knee. 4. Entitlement to a rating in excess of 10 percent for right knee retropatellar pain syndrome Disability ratings are based on VA’s Schedule for Rating Disabilities.  38 C.F.R. Part 4.  Separate Diagnostic Codes identify various disabilities and the criteria for a specific percentage rating to be assigned for that disability.  The percentage ratings represent as far as practicably can be determined the average impairment in earning capacity due to a service-connected disability. 38 U.S.C. § 1155.  A rating is assigned by comparing the extent to which a Veteran’s service-connected disability impairs the ability to function under the ordinary conditions of daily life, as demonstrated by the Veteran’s symptomatology, with the criteria for the percentage ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1. Examination reports must be interpreted, and if necessary reconciled, into a consistent picture so that the rating may accurately compensate the elements of disability present.  38 C.F.R. § 4.2.  If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran.  38 C.F.R. § 4.3.  The Board must determine the probative weight to be assigned among evidence in a case, and to state reasons or bases for favoring one opinion over another.  If all the evidence is in relative equipoise, reasonable doubt shall be resolved in the Veteran’s favor, and the claim should be granted.  38 U.S.C. § 5107; 38 C.F.R. § 3.102.  If the preponderance of the evidence is against the claim, the claim must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Rating a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint.  38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995).  Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  It is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements.  In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion.  Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled.  38 C.F.R. § 4.40.  When rating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement.  38 C.F.R. § 4.45.  The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.  The rating of the same disability under different diagnostic codes, known as pyramiding, must be avoided.  However, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition.  38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1994).  Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion.  38 C.F.R. § 4.71a, Plate II.  Under Diagnostic Code 5256, a 40 percent rating is warranted for ankylosis of the knee in flexion between 10 degrees and 20 degrees.  A 50 percent rating is warranted for ankylosis in flexion between 20 degrees and 45 degrees.  A 60 percent rating is warranted for extremity unfavorable ankylosis in flexion at an angle of 45 degrees or more.  38 C.F.R. § 4.71a, Diagnostic Code 5256.  Diagnostic Code 5257 provides that a 10 percent rating is warranted for slight recurrent subluxation or lateral instability of a knee.  A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability.  A 30 percent rating is warranted for severe knee impairment with recurrent subluxation or lateral instability.  38 C.F.R. § 4.71a, Diagnostic Code 5257.  Subluxation of the patella is the incomplete or partial dislocation of the knee cap.  Rykhus v. Brown, 6 Vet. App. 354 (1993).  Under Diagnostic Code 5260, limitation of flexion of the knee is rated 10 percent for flexion limited to 45 degrees.  A 20 percent rating is assigned for flexion limited to 30 degrees.  A 30 percent rating is assigned for flexion limited to 15 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5260.  Under Diagnostic Code 5261, limitation of extension of the knee is rated 10 percent for extension limited to 10 degrees.  A 20 percent rating is assigned for extension limited to 15 degrees.  A 30 percent rating is assigned for extension limited to 20 degrees.  A 40 percent rating is assigned for extension limited to 30 degrees. A 50 percent rating is assigned for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261.  Pursuant to Diagnostic Code 5262, a 30 percent rating is warranted when there is malunion of the tibia and fibula, with marked knee or ankle disability.  A schedular maximum 40 percent rating is warranted when there is nonunion of the tibia and fibula, with loose motion requiring a brace.  38 C.F.R. § 4.71a, Diagnostic Code 5262.  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, to the end that decisions are equitable and just.  38 C.F.R. § 4.6.  Separate ratings may be assigned for compensable limitation of both flexion and extension, or for limitation of motion and instability or subluxation of the knee, or meniscal pathology.  However, a separate rating can only be assigned where additional compensable symptomatology is shown that is not duplicative of that used to assign another rating.  38 C.F.R. § 4.14; VAOPGCPREC 09-04 (2004), 69 Fed. Reg. 59990 (2004); VAOPGCPREC 23-97 (1997), 62 Fed. Reg. 63604 (1997); VAOPGCPREC 9-98 (1998), 63 Fed. Reg. 56704 (1998); Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991).  Diagnostic Code 5003 provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  38 C.F.R. § 4.71a.  When limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is generally for application.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  A rating for arthritis cannot be combined with a rating based on limitation of motion of the same joint.  38 C.F.R. § 4.71a, Diagnostic Code 5003.  The Veteran is currently assigned a 0 percent rating for limited extension of the right knee, effective September 27, 2012, pursuant to Diagnostic Code 5261. The Veteran is also currently assigned a 10 percent rating for retropatellar pain syndrome of the right knee, effective March 1, 2005, pursuant to Diagnostic Code 5099-5020, based on painful motion limiting flexion of the right knee. This claim for an increased rating was received by VA in September 2012. The Veteran asserts that the right knee disability is more severe than that represented by the assigned ratings. A February 2011 right knee MRI found a complex tear of the posterior horn of the medial meniscus, mild diffuse cartilage thinning of the weight-bearing articular cartilage of the medial compartment, and a tiny knee joint effusion. A September 2011 medical record notes the Veteran complaining of right knee pain, that did not dramatically improve since a cortisone injection performed three months prior. Overall, the Veteran was noted as staying active. On physical examination, the Veteran’s extremities were warm and well perfused. The right knee evaluation found no obvious effusion. Stability was normal. The Veteran’s gait was symmetric with no obvious antalgia. MRI found complex tear of the posterior horn medial meniscus and medial compartmental cartilage thinning. The examiner diagnosed symptomatic right knee degenerative meniscal tear and degenerative joint disease. A June 2012 orthopedic note describes the Veteran as experiencing right knee catching and locking, but not bad enough to warrant surgical intervention. On physical examination, the Veteran’s extremities were warm and well perfused. The right knee evaluation found no focal deficits. Stability was normal and minimal to no effusion was noted. The Veteran stated that he felt good. The Veteran’s gait was symmetric and non-antalgia. At an August 2012 orthopedic examination, the Veteran complained of constant, throbbing, 4 out of 10 right knee pain with no radiation. The Veteran also experienced difficulty sleeping, joint stiffness, popping, locking, mild swelling, and tingling. On physical examination, the Veteran had a normal gait; and normal strength and flexibility. The Veteran did not have effusion, ecchymosis, atrophy, crepitation, or apprehension. The Veteran’s range of motion was noted as to 135 degrees of flexion and 0 degrees of extension. In an August 2012 primary care note, the Veteran was experiencing knee buckling and using a knee brace and cane to ambulate. The Board notes that the Veteran underwent VA knee examination in August 2013. However, the Board finds the August 2013 knee examination to be incomplete as the examiner did not provide an opinion as to functional loss of range of motion during flare-ups and failed to explain why that information was not provided. The Veteran reported experiencing flare-ups, the examiner acknowledges the Veteran’s complaints of flare ups but did not provide an opinion as to range of motion during a flare up. The Board notes that an opinion is speculative when it is based on the absence of procurable information or an examiner’s shortcomings or general aversion to offering an opinion on issues not directly observed. Direct observation of functional impairment during a flare-up is not a prerequisite to offering an opinion. Case law and VA guidelines anticipate that examiners will offer flare up opinions based on estimates derived from information procured from relevant sources, including the lay statements of Veterans.  Sharp v. Shulkin, 29 Vet. App. 26 (2017).  Accordingly, the Board finds the August 2013 VA knee examination report to be incomplete for rating purposes and it will not be considered in adjudication of this claim. An August 2013 radiology report reveals no right knee fracture, dislocation, degenerative disease, soft tissue swelling, joint effusion, or chondrocalcinosis. The osseous structures and soft tissues were unremarkable and the medial and lateral joint spaces of the knees were symmetric. Ultimately, the Veteran’s right knee X-Ray was deemed normal. In support of the claim, the Veteran has provided numerous lay statements detailing the current severity of the right knee disability and the impact it continues to have on his life. In an April 2015 statement, the Veteran asserted that his right knee disabilities had increased in severity since the Veteran was last examined by VA. As a result, in a January 2019 Remand, the Board requested a new examination to determine the current severity of the Veteran’s right knee disabilities. The Veteran was scheduled for VA examinations in December 2019 pursuant to the January 2019 Board remand. The Veteran did not report for that examination, and did not provide any good cause for not attending that examination. On review of the record, there is no indication, either by the Veteran or the representative, that an attempt has been made to reschedule or otherwise provide good cause for failure to appear for the VA examination. Moreover, there is no indication in the record that the letter notifying him of the scheduled December 2019 VA examination was not received. Ashley v. Derwinski, 2 Vet. App. 62 (1992) (presumption of regularity that public officers have properly discharged their official duties in absence of clear evidence to the contrary); Mindenhall v. Brown, 7 Vet. App. 271 (1994) (presumption of regularity to RO actions). The Board finds no evidence of any VA error in notifying or assisting the Veteran. While VA has a statutory duty to assist in developing evidence pertinent to a claim, a Veteran also has a duty to assist and cooperate with VA in developing evidence. The duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). VA’s duty must be understood as a duty to assist a Veteran in developing his or her claim, rather than a duty on the part of VA to develop the entire claim with the Veteran performing a passive role. Turk v. Peake, 21 Vet. App. 565 (2008). Therefore, remand for an additional VA examination is not warranted. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The record currently contains no other examinations that are valid for rating purposes.  For the period on appeal, the Board finds that the preponderance of the evidence is against the assignment of any higher rating under Diagnostic Code 5260 for limitation of flexion of the right knee.  Concerning the right knee, the evidence does not show limitation of flexion to 45 degrees at any time during this appeal, or that any pain or other functionally limiting factors limited flexion to 45 degrees. Therefore, an increased rating for limitation of flexion is not warranted as the contemporaneous evidence of record does not warrant a compensable rating. The Board further finds that the preponderance of the evidence is against the assignment of a compensable rating under Diagnostic Code 5261 for limitation of extension of the right knee. Concerning the right knee, the evidence shows that extension of the right knee was limited, at worst, to 0 degrees, with consideration of pain.  That extension measurement is consistent with no more than a 0 percent rating under Diagnostic Code 5261. At no point in time has the Veteran’s right knee disability been manifested by limitation of extension to 10 degrees or worse commensurate with a compensable rating. Therefore, a higher rating for limitation of extension is not warranted as the contemporaneous evidence of record does not warrant a compensable disability rating. Throughout the entire appeal period, the Board finds that Diagnostic Codes 5256 (ankylosis of the knee), 5259 (symptomatic removal of semilunar cartilage), 5263 (genu recurvatum), and Diagnostic code 5262 (nonunion or malunion of the tibia and fibula) are not applicable, as the medical evidence does not show that the Veteran has those conditions in the right knee. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of any higher or additional separate ratings for the right knee disability based on limitation of motion and the claim for increased rating must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 5. Entitlement to a separate 10 percent rating, but not higher, for a right knee disability, based on slight lateral instability of the knee pursuant to Diagnostic Code 5257, effective September 27, 2012. The Board finds that a separate 10 percent rating under Diagnostic Code 5257 for slight recurrent knee lateral instability is warranted for the right knee disability, effective September 27, 2012, the date the Veteran first filed the increased rating claim, as there is lay and medical evidence that the right knee occasionally gave way.  As early as an August 2012 primary care note, the Veteran reported experiencing knee instability and was noted as experiencing knee buckling. The Board will resolve reasonable doubt in favor of the Veteran and find that slight recurrent lateral instability is shown to warrant a 10 percent rating under Diagnostic Code 5257.  The evidence does not show more than occasional giving way or any symptoms that would lead the Board to conclude that any recurrent lateral instability has been any more than slight.  The Board finds that the preponderance of the evidence is against a finding of more than slight instability as objective signs or indicators of instability have not been found on examination, that would warrant a finding of more than slight recurrent lateral instability. In addition, the Veteran did not attend an examination schedule to determine the current severity of the disability. The Board finds that the preponderance of the evidence is against the assignment of any rating higher than 10 percent or any earlier effective date for the separate rating. 6. Entitlement to a separate rating of 20 percent, but not higher, for a right knee disability with effusion into the joint, pursuant to Diagnostic Code 5258, effective September 27, 2012. A February 2011 MRI found the Veteran to have a right knee joint effusion. Throughout the appeal period, the Veteran has been found to have stiffness, locking, and pain in the right knee. The Veteran has consistently complained of right knee pain, instability, and locking during the course of this appeal, which has been corroborated during objective medical examination. Therefore, the Board finds that Veteran is entitled to a 20 percent rating commensurate with the criteria set forth in Diagnostic Code 5258 for rating meniscus pathology, effective September 27, 2012, the date the first filed the increased rating claim. A 20 percent rating is the only rating available under Diagnostic Code 5258, therefore no higher rating under Diagnostic Code 5258 is warranted. The locking is separate from the limitation of motion and instability which are separately rated, and therefore, assigning a rating for locking with pain and effusion is not pyramiding. Furthermore, as the meniscus has not been removed in the right knee, a higher or separate rating is not warranted under Diagnostic Code 5259. The Board finds that the preponderance of the evidence is against the assignment of any rating higher than 20 percent or any earlier effective date for the separate rating. That is the highest schedular rating for meniscal tear. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mondesir, Eric The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.