Citation Nr: 0000992 Decision Date: 01/12/00 Archive Date: 01/27/00 DOCKET NO. 98-05 432A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for arthritis of the hands. 2. Entitlement to an increased evaluation for chondromalacia patella of the left knee, currently evaluated as 10 percent disabling. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K.L. Salas, Associate Counsel INTRODUCTION The veteran had active military service from December 1968 to November 1988. This appeal arose from a January 1997 rating decision by the Department of Veterans Affairs (VA) Manila, Philippines Regional Office (RO). The RO, in pertinent part, determined that new and material evidence had not been submitted to reopen a claim of entitlement to service connection arthritis of the hands, and denied entitlement to an increased (compensable) evaluation for chondromalacia patella of the left knee. The veteran withdrew issues of entitlement to increased evaluations for dermatitis and tinnitus at the March 1998 RO hearing. Entitlement to service connection was granted for headaches and rhinitis (claimed as sinusitis and pharyngitis in March 1999. In that rating decision the RO also granted a 10 percent evaluation for chondromalacia patella of the left knee. This is not a complete grant of the issue on appeal. The appellant is generally presumed to be seeking the maximum available by law, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. AB v. Brown, 6 Vet. App. 35 (1993). The case has been forwarded to the Board of Veterans' Appeals (Board) for appellate review. FINDINGS OF FACT 1. The RO denied the claim of entitlement to service connection for arthritis of the hands when it issued an unappealed rating decision in December 1989. 2. The evidence submitted since the December 1989 rating decision is neither wholly duplicative nor cumulative, and is so significant that it must be considered in order to fairly decide the merits of the claim 3. The claim for entitlement to service connection for arthritis of the hands is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. 4. The veteran has arthritis of the left knee with pain and limitation of knee flexion to 110 degrees. CONCLUSIONS OF LAW 1. Evidence received since the final December 1989 determination wherein the RO denied the claim of entitlement to service connection for arthritis of the hands in new and material, and the veteran's claim for that benefit has been reopened. 38 U.S.C.A. §§ 5104, 5108, 7105(c) (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a), 20.1103 (1999). 2. The criteria for an evaluation in excess of 10 percent for left knee chondromalacia patella have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for arthritis of the hands. Factual Background The evidence at the time of the December 1989 rating decision wherein the RO denied entitlement to service connection for arthritis of the hands is reported in pertinent part below. Service medical records disclosed no evidence of arthritis of the hands. The veteran complained of right wrist pain in December 1985. The impression was of a sprain of the right wrist. During the same month when seeking treatment for elbow pain, the veteran denied other joint pains. Arthritis of the hands was not shown or reported by history on any in- service examination reports including the veteran's discharge examination. The VA examination report showed full range of motion of all joints of the upper extremities. There was very mild hyperextension at the PIP joint and slight flexion of the DIP joints of the middle and ring fingers of each hand. However, the veteran was able to make a satisfactory fist with each hand and there was no acute arthritis in any joint, no tophi, and no subcutaneous nodules. The assessment was no arthritic changes of the joints of the fingers. X-rays of the hands were normal with no evidence of osseous, articular or soft tissue abnormality. In December 1989 the RO found that arthritis was not shown by the evidence of record. The veteran was notified of the rating decision by letter dated in January 1990, and he did not submit a Notice of Disagreement (NOD). The pertinent evidence submitted after the 1989 rating decision is reported below. Private records show that the veteran was seen for a swollen and tender right hand in April 1995. On examination the wrist was swollen and tender. The assessment was arthritis of the right hand. The veteran testified at a RO hearing in March 1998. He stated that there was no indication of treatment in his service record or health record. When asked if he had any treatment for arthritis of the hands, he replied that arthritis had not been that bad in San Diego. He stated that he had a few or a couple of visits in the Philippines. VA conducted an orthopedic examination of the veteran in April 1998. X-rays were normal. The diagnosis was normal hands and wrists. Criteria If no notice of disagreement is filed within the prescribed period, the action or determination shall become final and the claim will not thereafter be reopened or allowed, except as otherwise provided by regulation. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108. A decision of a duly constituted rating agency or other agency of original jurisdiction shall be final and binding on all field offices of the Department of Veterans Affairs as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C.A. § 5104 (West 1991). A final and binding agency decision shall not be subject to revision on the same factual basis except by duly constituted appellate authorities or except as provided in § 3.105 of this part. 38 C.F.R. § 3.104(a). Despite the finality of a prior final RO decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The Court has held that when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). The Court has held that VA is required to review for its newness and materiality only the evidence submitted by an appellant since the last final disallowance of a claim on any basis in order to determine whether a claim should be reopened and readjudicated on the merits. Evans v. Brown, 9 Vet. App. 273 (1996). In order to reopen a claim by providing new and material evidence, the appellant must submit evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). New evidence is evidence which (1) was not in the record at the time of the final disallowance of the claim, and (2) is not merely cumulative of other evidence in the record. Smith v. West, 12 Vet. App. 312 (1999); Evans v. Brown, 9 Vet. App. 273, 283 (1996). New evidence is considered to be material where such evidence provides a more complete picture of the circumstances surrounding the origin of the veteran's injury or disability, even where it will not eventually convince the Board to alter its decision. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). If the Board determines that new and material evidence has been presented under 38 C.F.R. § 3.156(a), the claim is reopened, and it must next be determined whether the appellant's claim, as then reopened, is well grounded in terms of all the evidence in support of the claim, generally presuming the credibility of that evidence. Elkins v. West, 12 Vet. App. 209, 218-219 (1999). If the claim is well grounded, the case will be decided on the merits, but only after the Board has determined that VA's duty to assist under 38 U.S.C.A. § 5107 has been fulfilled. The Court noted in Elkins and Winters v. West, 12 Vet. App. 203 (1999) that by the ruling in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998), the Federal Circuit Court "effectively decoupled" the determinations of new and material evidence and well groundedness. Thus, if the Board determines that additionally submitted evidence is "new and material," it must reopen the claim and perform the second and third steps in the three-step analysis, evaluating the claim for well-groundedness in view of all the evidence, both new and old, and if appropriate, evaluating the claim on the merits. Elkins v. West, 12 Vet. App. 209 (1999); Winters v. West, 12 Vet. App. 203 (1999). The Board does not have jurisdiction to consider a previously adjudicated claim unless new and material evidence is presented. Barnett v. Brown, 83 F. 3d 1380, 1384 (Fed. Cir. 1996). When new and material evidence has not been submitted in a previously denied claim "[f]urther analysis...is neither required, not permitted." Butler v. Brown, 9 Vet. App. 167, 171 (1996) (finding in a case where new and material evidence had not been submitted that the Board's analysis of whether the claims were well grounded constituted a legal nullity). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. Each disabling condition shown by a veteran's service records, or for which service connection is sought must be considered on the basis of the places, types and circumstances of the veteran's service as shown by service records, the official history of each organization in which the veteran served, medical records and all pertinent medical and lay evidence. Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of VA to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 C.F.R. § 3.303(a)(1999). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as 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. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clear-cut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations 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." When the disease identity is established there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b)(1999). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). Section 5107 of Title 38, United States Code unequivocally places an initial burden upon the claimant to produce evidence that his claim is well grounded; that is, that his claim is plausible. Grivois v. Brown, 6 Vet. App. 136, 139 (1994); Grottveit v. Brown, 5 Vet. App. 91, 92 (1993). For a claim for service connection to be well grounded, there must be competent evidence of a current disability in the form of a medical diagnosis, of incurrence or aggravation of disease or injury in service in the form of lay or medical evidence, and of a nexus between in service injury or disease and current disability in the form of medical evidence. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). In addition, in the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The second and third elements of the Caluza test can also be satisfied by evidence that a condition was "noted" in service or during an applicable presumptive period; evidence showing post service continuity of symptomatology; and medical or, in certain circumstances, lay evidence between the present disability and the post service symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). Where the determinative issue involves causation or a medical diagnosis, competent medical evidence to the effect that the claim is possible or plausible is required. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The claimant does not meet this burden by merely presenting his lay opinion because he is not a medical health professional and does not constitute competent medical authority. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Lay assertions cannot constitute cognizable evidence, and as cognizable evidence is necessary for a well-grounded claim, Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992), a claim based only on the veteran's lay opinion is not well grounded. In determining whether a claim is well grounded, the claimant's evidentiary assertions are presumed true unless inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). The Court has held that if the veteran fails to submit a well-grounded claim, VA is under no duty to assist in any further development of the claim. 38 U.S.C.A. § 5107(a); Gilbert v. Brown, 5 Vet. App. 91, 93 (1993); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997); 38 C.F.R. § 3.159(a) (1998). See also McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997). In Morton v. West, 12 Vet. App. 477 (1999), the Court concluded that the Secretary, by regulation, Manual, and/or Compensation and Pension (C&P) policy cannot eliminate the condition precedent placed by Congress upon the inception of his duty to assist. Absent the submission and establishment of a well-grounded claim, the Court held that the Secretary cannot undertake to assist a veteran in developing facts pertinent to his or her claim. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102 (1999). I. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for arthritis of the hands. Analysis The veteran seeks to reopen his claim of service connection for arthritis of the hands, which the RO denied in December 1989. When a claim is finally denied by the RO, the claim may not thereafter be reopened and allowed, unless new and material evidence has been presented. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104. When an appellant seeks to reopen a finally denied claim, the Board must review all of the evidence submitted since that action to determine whether the claim should be reopened and readjudicated on a de novo basis. Glynn v. Brown, 6 Vet. App. 523, 529 (1994). In order to reopen a finally denied claim there must be new and material evidence presented since the claim was last finally disallowed on any basis, not only since the claim was last denied on the merits. Evans v. Brown, 9 Vet. App. 273 (1996). Under Evans, evidence is new if not only previously of record and is not merely cumulative of evidence previously of record. The evidence submitted by the veteran is new and not cumulative of the evidence of record. It is material to the issue at hand as it tends to show that the veteran has hand and wrist symptoms. Private medical records also show a diagnosis of arthritis. This evidence is obviously pertinent to the question of whether the veteran has a current disability, specifically arthritis. Lack of a current disability was the basis of the prior final denial. Therefore the appeal is reopened. II. Whether the claim for service connection for arthritis of the hands is well grounded. Section 5107 of Title 38, United States Code unequivocally places an initial burden upon the veteran to produce evidence that his claim is well grounded; that is, that his claim is plausible. Grivois v. Brown, 6 Vet. App. 136, 139 (1994); Grottveit v. Brown, 5 Vet. App. 91, 92 (1993). Because the veteran has failed to meet this burden, the Board finds that his claim of entitlement to service connection for arthritis of the hands is not well grounded. The Board reiterates the three requirements for a well grounded claim: (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) medical evidence of a nexus between the claimed inservice injury or disease and a current disability. See Caluza, supra. The Board's review of the evidentiary record discloses that while the veteran reports wrist pain including pain on movement on his August 1998 examination and while he has a diagnosis of arthritis from a private physician in 1995, no disability to include arthritis is currently shown on VA examination. Even if the Board could accept the opinion of the private physician (which was from a few years before, and was not obviously supported by x-rays), over the findings of the VA orthopedic examiner, the fact remains that the entire evidentiary record is devoid of a link between any arthritis alleged to be present and the veteran's active service. Arthritis was not shown in service and there is no competent medical opinion by the doctor who made the diagnosis of arthritis that arthritis was incurred in the veteran's service. Again, even assuming for the purpose of this analysis that the veteran has arthritis, the veteran is not entitled to a presumption of service connection as arthritis was not shown to have existed to a compensable degree within one year after service. 38 C.F.R. §§ 3.307, 3.309 (1999). In essence, the veteran's claim is based solely on his lay opinion that he has arthritis of the hands and that the onset of the arthritis was in service. While a lay person may report his symptomatology, he does not have the competency of a trained health care professional to express opinions as to diagnosis and/or etiology of a disorder. Assertions as to these matters are therefore not presumptively credible. King, 5 Vet. App. 19, 21. As it is the province of trained health care professionals to enter conclusions that require medical opinions as to causation Grivois, 6 Vet. App. 136, 139, the veteran's lay opinion is an insufficient basis upon which to find his claim well grounded. Espiritu, 2 Vet. App. 492. Accordingly, as a well-grounded claim must be supported by evidence, not merely allegations, Tirpak, 2 Vet. App. 609, 611, the appellant's claim for entitlement to service connection for arthritis must be denied as not well grounded. The veteran has been notified of the evidence necessary to establish a well-grounded claim, and he has not indicated the existence of any post service medical evidence that has not already been obtained that would well ground his claims. 38 U.S.C.A. § 5103(a) (West 1991); McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). As the claim for service connection for arthritis of the hands is not well grounded, the doctrine of reasonable doubt has no application to the veteran's case. Although the Board considered and denied the appellant's claim after reopening the claim, while the RO merely determined that new and material evidence had not been submitted to reopen the claim, the appellant has not been prejudiced by the decision. This is because in reopening the claim and addressing the issue of well groundedness, the Board has accorded the appellant greater consideration than his claim in fact warranted under the circumstances. Bernard v. Brown, 4 Vet. App. 384 (1993). Moreover, the Board is specifically charged with addressing the question of well groundedness after reopening a claim. As the Board noted earlier, the Court announced a three step test with respect to new and material cases. Under the Elkins test, VA must first determine whether the veteran has submitted new and material evidence under § 3.156 to reopen the claim; and if so, VA must determine whether the claim is well grounded based on a review of all the evidence of record; and lastly, if the claim is well grounded, VA must proceed to evaluate the merits of the claim but only after ensuring that the duty to assist has been fulfilled. Winters v. West, 12 Vet. App. 203, 206 (1999); Elkins v. West, 12 Vet. App. 209, 218-19 (1999). The Board has already determined that new and material evidence was submitted to reopen the claim of entitlement to service connection for arthritis of the hands, and that the claim of service connection for arthritis of the hands is not well grounded. The first element was met. The second element of the test was not met. Accordingly, the Board's analysis must end here. Butler, 9 Vet. App. at 171. III. Entitlement to an increased evaluation for chondromalacia patella of the left knee, evaluated as 10 percent disabling. Factual Background A review of the service medical records discloses that the veteran was treated for left knee pain clinically assessed as chondromalacia patella in December 1983. He required treatment following a July 1987 motorcycle accident for superficial lacerations of the left knee. Post service VA examination in August 1989 disclosed very slight crepitus on patellar compression with knee flexion, and negative x-rays. The diagnosis was mild chondromalacia. The RO granted entitlement to service connection for chondromalacia patella of the left knee with assignment of a noncompensable evaluation when it issued a rating decision in December 1989, On VA examination in August 1996, the veteran reported knee- joint pain, especially on kneeling. On examination he was comfortable. There was no swelling, deformity or crepitation. There was no intra-articular involvement and ranges of motion were described as full. X-rays showed beginning osteoarthritic changes. The patellar bone was negative. The assessment of the VA examiner was beginning osteoarthritic changes and history of chondromalacia patella. In April 1998 the veteran underwent additional VA examinations. He complained of knee pain and stiffness with easy fatigability. There was no redness or heat. He reported tolerable flare-ups of symptoms every day for a few hours, precipitated by cold weather especially and relieved with Ibuprofen. Reportedly, there was more functional limitation due to pain than actual limitation of motion during these flare-ups and it was stated that the symptoms limited his ability to work fast. Range of knee motion was from 0 to 110 degrees. There was no objective evidence of painful motion, edema, effusion, instability, weakness, tenderness, heat, abnormal movement or guarding. There were no gait abnormalities or functional limitation on standing and walking. There was no evidence of abnormal weight bearing. There was no indication of episodes of dislocation or recurrent subluxation. The ligaments of the knees were stable. Lachman's and McMurray's tests for ligament and meniscus injury were negative. The diagnosis was minimal degenerative arthritis. Criteria Disability evaluations are determined by the application of a schedule of ratings based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (1999). In determining the disability evaluation, VA must acknowledge and consider all regulations that are potentially applicable based upon the assertions and issues raised in the record, and explain the reasons and bases used to support its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The percentage ratings contained in the rating schedule represent, as far as practicable, the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. For application of the rating schedule, accurate and fully descriptive medical examinations are required with emphasis on the limitation of activity imposed by the disabling condition. It is essential, both in examinations, and in the evaluation of disability, that each disabling condition be viewed in relation to its history. 38 C.F.R. § 4.1 (1999). See also 38 C.F.R. § 4.2. Evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (1999). Multiple ratings can be assigned using different diagnostic codes if none of the symptoms or criteria for a rating under a diagnostic code are duplicative of, or overlap the symptoms or criteria for the other diagnostic code under consideration. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The VA General Counsel issued an opinion that there is no prohibition against assigning separate ratings for lateral instability or subluxation of the knees, and for arthritis of the knees if each aspect of disability is at least disabling to a noncompensable degree. VAOPGCPREC 23-97. In cases of evaluation of orthopedic injuries there must be adequate consideration of functional impairment including impairment from painful motion, weakness, fatigability, and incoordination. See 38 C.F.R. §§ 4.10, 4.40, 4.45, and 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). In cases of functional impairment, evaluations are to be based upon lack of usefulness, and medical examiners must furnish, in addition to etiological, anatomical, pathological, laboratory and prognostic data required for ordinary medical classification, a full description of the effects of the disability upon the person's ordinary activity. 38 C.F.R. § 4.10. 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 portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology, and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. As regards the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. For the purpose of rating disability from arthritis, the knee is considered a major joint. 38 C.F.R. § 4.45. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. 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. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. Degenerative arthritis established by x-ray findings is rated according to limitation of motion for the joint or joints involved. Where limitation of motion is noncompensable, a rating of 10 percent is assigned for each major joint (including the ankle and the knee) or group of minor joints affected by limitation of motion to be combined not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion a 10 percent rating is assigned where there is x-ray evidence of involvement of two or more major joints, or two or more minor joint groups; and a 20 percent evaluation is assigned where there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups and occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. For other knee impairment, including recurrent subluxation or lateral instability of the knee, a moderate case is to be rated 20 percent disabling. For a slight case a 10 percent rating is appropriate. 38 C.F.R. § 4.71a, Diagnostic Code 5257. A 20 percent rating is assigned for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Limitation of flexion of the leg to 60 degrees warrants a 0 percent rating. When flexion is limited to 45 degrees, a 10 percent rating is assigned. A 20 percent rating is appropriate where flexion is limited to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension of the leg to 5 degrees warrants a 0 percent rating. When extension is limited to 10 degrees, a 10 percent rating is assigned. A 20 percent rating is appropriate where extension is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Malunion of a tibia and fibula with slight knee or ankle disability may be assigned a 10 percent evaluation. Malunion of a tibia and fibula with moderate knee or ankle disability may be assigned a 20 percent evaluation. 38 C.F.R. § 4.71a; Diagnostic Code 5262. Ratings shall be based as far as practicable, upon the average impairment of earning capacity with the additional proviso that the Secretary shall from time to time readjust the schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (1999). When after consideration of all of the evidence and material of record in an appropriate case before VA there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. 38 U.S.C.A. § 5107(b) (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.102, 4.3. Analysis The Board has carefully considered the evidence compiled by and on behalf of the veteran and determined that his claim for entitlement to an increased evaluation is well grounded within the meaning of 38 U.S.C.A. § 5107(a); Proscelle v. Derwinski, 2 Vet. App. 629 (1992). He has claimed a worsening of the symptoms of his service connected left knee disability and this is typically sufficient to well-ground a claim for entitlement to an increased evaluation. The Board is satisfied that all relevant facts have been adequately developed for the purpose of adjudicating the claim; no further assistance in developing the facts pertinent to the claim is required to comply with the duty to assist as mandated by 38 U.S.C.A. § 5107(a). The veteran has not identified any additional treatment of his left knee, and he has been provided with two VA examinations. More than adequate consideration has been given to functional impairment as required by VA regulations and case law. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Painful motion, abnormal motion, instability, symptomatology during flare- ups, weakness, affect on work and daily living have all been fully considered by the VA examiner who last examined the veteran in 1998. The veteran's diagnosis historically is chondromalacia patella. However, there is no evidence of dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint to warrant a 20 percent evaluation under that diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code 5258. The only current pertinent diagnosis is of degenerative arthritis of the left knee, a disorder not confirmed by radiographic study, which is rated according to limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The veteran's VA examinations show full extension and flexion limited to 110 degrees, which is loss of 30 degrees of flexion for VA purposes. This is not even noncompensable limitation of motion. Moreover, even considering the veteran's functional limitation including pain with kneeling, and flare-ups with increased pain, the veteran's limitation of motion cannot be reasonably equated with limitation of flexion to 30 degrees (loss of 110 degrees of flexion) to warrant a higher evaluation of 20 percent. There is no medical evidence showing disability analogous to loss of 110 degrees of left knee flexion. The Board has considered whether a higher rating could be supported under the other diagnostic codes pertaining to knee disorders; however, the veteran has not shown applicability of any other diagnostic code providing for a higher evaluation. The RO has rated the veteran as 10 percent disabled for chondromalacia patella of the left knee under diagnostic code 5257. The current 10 percent evaluation contemplates not more than slight recurrent subluxation or lateral instability of the knee. He does not have moderate subluxation or lateral instability of his knee, and the knee disability overall is at worst described as mild. The service-connected left knee disability does not include malunion of the tibia and fibula, thereby precluding assignment of a an increased evaluation of 20 percent for moderate disablement under diagnostic code 5262. As the Board noted earlier, although diagnosed, the evidentiary record is negative for the presence of arthritis. Additional compensable evaluation with application of the VA General Counsel opinion is therefore not warranted. VAOPGCPREC 23-97. As there is no evidence of any subluxation or instability, multiple ratings for instability and arthritis cannot be considered. The veteran does not have limitation of flexion or extension to a noncompensable degree (limitation of flexion to 60 degrees or limitation of extension to 5 degrees) in addition to at least slight subluxation or lateral instability. There is no ankylosis or nonunion of the knee. With respect functional loss due to pain, the VA examinations of record are devoid of any clinical objective pathology reflective of painful motion, edema, effusion, instability, weakness, tenderness, heat, abnormal movement or guarding. There has been no evidence of incoordination, fatigability, adhesions, defective innervation, deformity, etc., the Board finds no basis upon which to predicate a grant of entitlement to an increased evaluation with application of the criteria under 38 C.F.R. §§ 4.40, 4.45, 4.59. The Board observes that in light of Floyd v. Brown, 9 Vet. App. 88 (1996), the Board does not have the jurisdiction to assign an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1999) in the first instance. The Board, however, is still obligated to seek all issues that are reasonably raised from a liberal reading of documents or testimony of record and to identify all potential theories of entitlement to a benefit under the law or regulations. In Bagwell v. Brown, 9 Vet. App. 337 (1996), the Court clarified that it did not read the regulation as precluding the Board from affirming an RO conclusion that a claim does not meet the criteria for submission pursuant to 38 C.F.R. § 3.321(b)(1), or from reaching such conclusion on its own. In the veteran's case at hand, the RO neither provided nor discussed the criteria for assignment of an extraschedular evaluation. In the unusual case where the schedular evaluations are found to be inadequate, an extraschedular evaluation may be assigned commensurate with impairment in the average earning capacity due exclusively to the service-connected disability or disabilities. 38 C.F.R. § 3.321(b)(1). In reviewing the case, the Board also must consider whether additional benefits are warranted under any of the provisions of Part 3 and 4. As to the disability picture presented in this case, the Board cannot conclude that the disability picture is so unusual or exceptional, with such related factors as frequent hospitalization or marked interference with employment, as to render impractical the application of the regular rating criteria. There exists no basis upon which to predicate referral of the case to the Under Secretary or the Director for consideration of assignment of extraschedular evaluation. Although the veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for an evaluation in excess of 10 percent for chondromalacia patella of the left knee. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER The veteran having submitted new and material evidence to reopen a claim of entitlement to service connection for arthritis of the hands, the appeal is granted to this extent. The veteran not having submitted a well grounded claim of entitlement to service connection for arthritis of the hands, the appeal is denied. Entitlement to an evaluation in excess of 10 percent for chondromalacia patella of the left knee is denied. RONALD R. BOSCH Member, Board of Veterans' Appeals