Citation Nr: 0907783 Decision Date: 03/04/09 Archive Date: 03/12/09 DOCKET NO. 04-38 894 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for a right hip disability, to include as secondary to right knee disorders. 2. Entitlement to an evaluation in excess of 10 percent for a right knee disorder. 3. Entitlement to an evaluation in excess of 30 percent for residuals of a right ulna fracture. 4. Entitlement to an initial compensable evaluation for asbestos related pleural plaques prior to November 3, 2004. 5. Entitlement to an evaluation in excess of 30 percent for asbestos related pleural plaques since November 3, 2004. 6. Entitlement to a total disability evaluation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W. H. Donnelly, Counsel INTRODUCTION The Veteran served on active duty with the United States Navy from January 1944 to May 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2002, May 2004, and August 2004 decisions by the Newark, New Jersey, Regional Office (RO) of the United States Department of Veterans Affairs (VA). The October 2002 decision denied entitlement to TDIU. The May 2004 decision granted service connection with a noncompensable rating for asbestos related pleural plaques from July 2001. In a March 2005 decision, the RO assigned an increased 30 percent evaluation for asbestos related pleural plaques, effective from November 4, 2004. The Veteran has indicated he wishes to continue his appeal on this issue. An August 2004 decision denied service connection for a right hip disability as well as increased evaluations for right knee and right elbow disabilities. The issues have been recharacterized as above to reflect the complete scope and manifestations of the disabilities, as well as the stages of time under consideration. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2007). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran, through his representative, filed a motion for advancement on the docket due to age in January 2009, and such motion was granted in February 2009. The issues of evaluation of disability due to asbestos related pleural plaques and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Currently diagnosed right hip arthritis is likely related to a service connected right knee disability. 2. From the date of receipt of the claim for increase, October 29, 2003, the veteran's right knee disorder is manifested by arthritis demonstrated on x-ray, and pain, with predominantly full range of motion on extension, flexion possible to a point in excess of 60 degrees, and no more than mild joint laxity. 3. Residuals of a right ulna fracture are manifested by limitation of flexion to no greater than 90 degrees, with pain, and some limitation of extension of between 30 and 50 degrees, with pain. CONCLUSIONS OF LAW 1. Service connection for a right hip disability is warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2008). 2. The criteria for an evaluation of 20 percent (based on a function of 10 percent for instability and 10 percent for arthritis with noncompensable loss in full range of motion), and no higher, are met for the veteran's right knee disability from October 29, 2003. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261, 5257 (2008). 3. The criteria for an evaluation in excess of 30 percent for residuals of a right ulna fracture are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5206, 5207 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters: VA's Duties to Assist and Notify As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Here, no single piece of correspondence has provided complete, legally adequate notice with respect to the Veteran's claims. Adjudication may proceed without further remand, however, because any errors in notice are not prejudicial, and because the Veteran has been provided all the information necessary to allow a reasonable person to substantiate these claims. In July 2006 correspondence, the Veteran was informed of the elements of his claims for service connection and increased evaluation, and was advised of the evidence and information needed to support the claims. This letter set forth the respective duties of VA and the Veteran in obtaining such. It also included information regarding VA policy and practice in assigning effective dates and disability evaluations. The correspondence did not include detailed information regarding the applicable rating criteria, beyond telling the Veteran that he must show his disabilities were worse. These details were provided to the Veteran in June 2008 correspondence, however, and the claims were then readjudicated in a November 2008 supplemental statement of the case. While the appellant did not receive full notice prior to the initial decision, after pertinent notice was provided the claimant was afforded a meaningful opportunity to participate in the adjudication of the claims. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, VA has obtained complete service treatment records; the Veteran has not indicated that he receives ongoing VA treatment, though he has been treated at times in the past. Those VA outpatient treatment records identified in the record have been associated with the file. The Veteran has submitted, or VA has obtained on his behalf, private treatment records from a number of physicians. For all doctors identified by the Veteran and for whom contact information was provided, records have been received. The Veteran has submitted statements from fellow service members in support of his claims. He was afforded VA examinations in June 2002, August 2002, October 2003, May 2004, January 2005, August 2006, July 2008 and July 2008. Neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. I. Service Connection for a Right Hip Disability Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). Arthritis, which is shown to be present in the right hip, is a listed chronic disease subject to presumptive service connection. Finally, a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). To establish service connection, there must be a medical diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is 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 facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Importantly, a layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Here, the Veteran alleges that his right hip disability, currently diagnosed as degenerative arthritis by x-ray, is due to his service connected right knee disability. The Board has also considered possible entitlement to benefits based on direct and presumptive service connection. With regard to direct service connection, a review of service treatment records reveals no complaints of or treatment for any hip impairment or injury. Examination on discharge in May 1946 found no disability of the hips. Further, treatment records soon after service, dated in October 1946, do not indicate any complaints of hip pain or problems. The first indication or complaint of right hip dysfunction in medical records is August 2002, when Dr. EM, a private orthopedist, noted "tightness of the hips" during an examination of the low back. Finally, the Board notes that at no time has the Veteran indicated his injured his hip in service. Buddy statements similarly do not relate any hip injury in service. The Board finds that based on the lack of evidence or allegation of in-service injury, or continuity of symptoms since service, direct service connection for a right hip disability is not warranted. Turning to the question of presumptive service connection, the Board finds that service connection under this theory of entitlement is not warranted. Presumptive service connection for arthritis is warranted when the disease is manifested to a compensable degree within the first post-service year. 38 C.F.R. §§ 3.307, 3.309. Here, the Veteran was discharged from service in May 1946. The evidence of record fails to establish any diagnosis or manifestation of right hip disability prior to May 1947. As was noted above, an October 1946 VA examination was provided which noted no complaints of or findings related to right hip problems. The next medical evidence of record is a June 1965 VA examination, which also shows no complaints of or treatment for right hip disability. The first notation of right hip problems was in August 2002, well after service. The Board again notes that the Veteran does not currently allege any right hip disability or problems immediately after service. In the absence of any evidence of right hip disability within the first post- service year, presumptive service connection is not for application. The Board now turns to the Veteran's main contention, that his current right hip disability is due to his service connected right knee disability. VA outpatient treatment records reveal a history of gout, with complaints of pain in the neck, back, arms, shoulders, and hands. No hip problems were reported. Private medical records from Dr. EM, a private orthopedist, covering the period of May 2001 to June 2008, reveal that the Veteran initially sought treatment for right knee and elbow problems. In May 2001 he complained of right knee pain with intermittent bouts of limping and discomfort on stairs. He had a 20 year history of gout. No right hip impairment or complaints were noted. Treatment reveals progressive back pain, and in August 2002 physical examination revealed tightness of the hips, knees, and ankles. No hip pathology was diagnosed. By October 2004, x-rays showed moderate osteoarthritis of both hips. Dr. EM associated the hip diagnosis with the Veteran's in-service injuries. "The patient's present signs and symptoms represent after effects and complications of his injuries...In my opinion, he requires reassessment by the [VA] because of a progression of his right knee, hip and back conditions." In June 2008, the Veteran sought treatment for persistent right knee pain with walking, and "a new discomfort in the right hip area" with activity. There was a positive grind sign and pain with movement. X-rays showed moderately severe right hip osteoarthritis and mild to moderate changes on the left. He opined that that the right hip problem was a "result of after effects progression and mechanical dysfunction of the...lower extremit[y] as a result of previously considered pathology." A June 2002 VA joints examination reveals complaints of right knee pain, and the Veteran reported a popping on the medial side of the knee when pivoting to the right or squatting. His gait was slow, with stiffness of the right knee. Knee range of motion was limited, and the joint was tender along the medial line. No right hip pain or dysfunction was noted. The Veteran underwent a VA joints examination in May 2004. At that time, the Veteran complained of bilateral hip pain. He reported daily knee pain with instability; he used a cane for ambulation. He described his bilateral hip pain as radiating from the low back. He denied pain on palpation, but reported pain at the ends of internal and external rotation. Osteoarthritic changes of the bilateral hips were diagnosed. The examiner did not opine as to etiology. At an August 2006 VA joints examination, the Veteran complained of right knee pain and left hip pain, with bilateral hip pain at times. Range of motion testing showed decreased movement in the left and right hip joints. The doctor reported, based on May 2004 x-rays, that arthritis was present in the bilateral hips, left worse than right. The doctor stated that the Veteran had a bilateral hip disability, left worse than right. He opined that the right hip was not likely related to the service connected right knee disability. "[D]egenerative changes of the hip seem to be secondary to the aging process." He based this opinion on the lack of right hip treatment in service or after separation, as well as the fact that the Veteran worked for many years without evidence of problems of the right hip. An August 2008 VA joints examination did not address the right hip disability. The Board finds that service connection for a right hip disability, diagnosed as arthritis, is warranted as secondary to the service connected right knee disability. Only two doctors, Dr. EM and the August 2006 VA examiner, address the question of etiology of the right hip disability. The Board finds the opinion from Dr. EM to carry more weight. While it is true that the right hip disability is of fairly recent onset, Dr. EM considers the corresponding worsening of the right knee disability as an important factor. He also notes the development of altered gait and complaints of pain over a number of years, establishing the mechanism by which the right knee affected the right hip. His reasoning appears sound and well supported by objective findings. The VA examiner, on the other hand, makes findings which seem at odds with all other evidence of record, such as the severity of the left hip arthritis, and does not correlate right hip complaints to the increased complaints of right knee disability. As the more credible of the two medical opinions on the question support a finding of secondary service connection for a right hip disability, the preponderance of the evidence is in the Veteran's favor, and the claim must be granted. II. Evaluation of Right Knee Disability In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as "staged" ratings." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, as is explained below, staged ratings are not appropriate, as symptoms have been relatively constant over the course of the period on appeal, which began with the veteran's claim for increase received October 29, 2003. If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. VA General Counsel Opinions VAOPGCPREC 23-97 (July 1, 1997) and VAOPGCPREC 9-98 (Aug. 14, 1998) provide guidance on when separate ratings for knee disability may be assigned under the limitation of motion codes in addition to ratings under Code 5257 for subluxation/instability. Essentially, these opinions state that separate compensable ratings may be assigned when limitation of knee motion is compensable or (under Code 5003) when there is x-ray evidence of arthritis together with a finding of painful motion. Further, in VAOPGCPREC 9-04 (September 17, 2004), the General Counsel opined that separate ratings under Diagnostic Code 5260 for limitation of flexion of the leg and Diagnostic Code 5261 for limitation of extension of the leg may be assigned for disability of the same joint. Here, the Veteran's service connected right knee disability has been assigned a single 10 percent evaluation for right knee disability, based on limitation of motion in flexion (Code 5260). The RO has previously failed to consider the possibility of concurrent evaluations for limitation of extension (Code 5261) or instability (Code 5257.) The Board will therefore discuss entitlement to an increased evaluation under Code 5260, but additional compensation under the other Codes. The veteran submitted a claim for increase in October 2003. In that claim he reported frequent dislocation. A VA joints examination was conducted in May 2004. The Veteran complained of daily knee pain, but denied swelling. He used a cane and at times wrapped his knee with an Ace bandage. The Veteran complained of instability and occasional buckling of the right knee. The examiner noted arthritic changes of the knee. Flexion was possible to 140 degrees, but there was pain at the end of motion. No impairment of extension was noted. The joint was tender on the medial line. No ligamentous laxity or other instability was observed. The examiner did not conduct any repetitive motion testing, but stated that he did not think the Veteran would lose any additional functional capacity due to pain, weakness, or fatigue. No reasoning is given for this opinion. Dr. EM saw the Veteran for knee complaints in October 2004. The Veteran reported right knee pain, stiffness, swelling, and intermittent giving way on stairs. Physical examination revealed a genu varum deformity. Flexion was possible to 120 degrees; no limitation of extension was reported. The joint was tender, and Dr. EM noted an "obvious valgus toggle medially." X-ray showed moderate to severe degenerative arthritis. The examiner diagnosed progressive post traumatic arthritis of the right knee. At an August 2006 VA joints examination, the Veteran complained of right knee pain and stated that sometimes the joint "pops out." Symptoms, particularly pain and limitation of motion, increased with activities such as walking. At times the Veteran used a cane. Physical examination revealed that extension was full, without notation of pain. Flexion was limited to 122 degrees, with an additional five degrees lost due to pain with repeated motion. A five degree varus laxity was seen in medial and lateral collateral ligaments. Mild osteoarthritis was noted on a May 2004 x-ray. In June 2008, Dr. EM again examined the Veteran. At that time, the Veteran reported "persistent ambulatory dysfunction of the right knee with pain on walking more than five minutes [or] ascending and descending stairs...." Right knee flexion was measured to 90 degrees, while extension was lacking 10 degrees. Dr. EM noted crepitus with movement, peripatellar discomfort, enlargement of the distal femur, and slight valgus stress instability. X-rays showed joint narrowing and degenerative changes. A VA joints examination was conducted in August 2008. The Veteran described daily, worsening pain of the right knee. He reported buckling, but no locking of the joint. He denied instability. The Veteran used a cane or knee sleeve on occasion. He denied problems with repetitive use. On physical examination, extension was full, while flexion was limited to 130 degrees. He reported pain at the end of movement in flexion. No instability of the joint was adduced. Repetitive motion testing revealed no additional functional limitation due to pain, fatigue, or lack of coordination. Moderate degenerative changes were seen on x- ray. Evaluation of Limitation of Motion Evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. Initially, the Board finds that no compensable evaluation is warranted for a right knee disability under Diagnostic Code 5261, for limitation of motion in extension. No VA examiners have reported limitation of extension. Extension is full and complete on objective testing, with no painful motion in that movement, including at the most recent August 2008 VA examination. Only Dr. EM, the private orthopedist, notes limitation of extension, and that only at a single June 2008 evaluation. He reported that the Veteran lacked 10 degrees of extension. No pain was noted on motion, though "peripatellar discomfort" was reported generally. Code 5261 provides that extension of the leg limited to 5 degrees is rated noncompensably (0 percent) disabling; extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. 38 C.F.R. § 4.71a. Here, while there is a single, June 2008 notation of limitation of extension meeting the criteria for assignment of a compensable, 10 percent evaluation, the great majority of examinations, both before and after that isolated instance, reflect no limitation of extension or DeLuca factors which could cause actual functional impairment in extension. The Board finds that the June 2008 range of motion represents a temporary and transient exacerbation, and is not reflective of the actual degree of disability of the right knee. As no functional impairment of the right knee is shown in extension, no compensable evaluation is assignable under Code 5261. Turning to flexion of the knee, the Board finds that the right knee disability is appropriately evaluated as 10 percent disabling under Diagnostic Code 5260, for limitation of motion in flexion. That Code provides flexion of the leg limited to 60 degrees is rated noncompensably (0 percent) disabling; flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. 38 C.F.R. § 4.71a. No objectively measured range of motion shows a limitation of movement to 45 degrees. Further, objectively measured additional functional impairment due to repetitive motion is minimal, and does not decrease the range of movement to a compensable degree. Even so, the subjectively described pain and functional limitation do appear, resolving all reasonable doubt in favor of the Veteran, to reflect a compensable degree of impairment of flexion, and assignment of a 10 percent evaluation is warranted. The described functional impact due to limitation of motion does not, however, warrant assignment of the next higher, 20 percent evaluation. The Board notes as well that given the presence of arthritis by x-ray, with painful limitation of motion, a 10 percent evaluation would be assignable under Code 5010-5003, for traumatic arthritis. The Veteran may not be evaluated under the arthritis Codes and limitation of motion codes simultaneously, as they rely upon the same symptoms and manifestations of impairment, and hence simultaneous rating would constitute prohibited pyramiding. 38 C.F.R. § 4.14. Evaluation of Instability As was discussed above, separate evaluations for the knee may be assigned for limitation of motion and for instability, as the criteria for evaluation are mutually exclusive and would not constitute pyramiding. Instability of the knee is evaluated under Diagnostic Code 5257, for other impairment of the knee that includes recurrent subluxation or lateral instability. Slight recurrent subluxation or lateral instability of the knee is rated 10 percent disabling; moderate recurrent subluxation or lateral instability of the knee is rated 20 percent disabling; and severe recurrent subluxation or lateral instability of the knee is rated 30 percent disabling. 38 C.F.R. § 4.71a. Here, the Veteran has consistently reported buckling of the knee to VA and private doctors. He also alleged such at the time of his October 2003 claim, stating that his "trick knee" had worsened. Doctors have not, however, consistently noted instability on objective testing. Only one VA examiner found laxity in the joint, while Dr. EM noted such at both evaluations during the appellate period. Two VA examiners reported none. In all instances where it was noted, the laxity was described as slight or mild. The Board finds that the preponderance of the evidence supports a finding that the service connected right knee disability is manifested by mild instability of the joint. The Board finds the Veteran's subjective complaints credible and corroborated by objective findings. Although not all doctors note laxity or instability, the majority do, and all reasonable doubt is resolved in favor of the Veteran. A separate 10 percent evaluation is therefore assigned for right knee instability as a manifestation of the service connected disability, effective from the date of the October 2003 claim. In short, the Board finds that the Veteran's right knee disability rating should be increased to 20 percent, effective from the date of receipt of the claim for increase in October 2003. The disability involving the right knee, most closely approximates the criteria for an evaluation of 20 percent (based on a function of 10 percent for instability and 10 percent for arthritis with noncompensable loss in full range of motion on flexion), and no higher. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261, 5257 (2008). III. Evaluation of Right Ulna Fracture Residuals The Veteran is currently evaluated as 30 percent disabled for impairment of flexion of the major (right) elbow under Code 5206 as a residual of the fracture of his right ulna in service. Similar to the knee, the rating schedule applicable to the elbow includes evaluations based on limitation of motion in flexion (Code 5206) and extension (Code 5207). Under the reasoning set forth in VAOPGCPREC 9-04 (September 17, 2004), it is permissible to assign simultaneous evaluations under each of these Codes. The Board therefore shall consider the Veteran's entitlement to a compensable evaluation under both. The Board does not consider here entitlement to additional evaluation for limitation of supination and pronation of the forearm under Code 5213, as the Schedule does not clearly show this movement to be separate and distinct from flexion and extension. A review of the relevant medical evidence of record reveals that at a May 2004 VA joints examination, the Veteran complained of "marked decreased range of motion and pain" since service. His functional capacity was complicated by the presence of nonservice connected gout and rheumatoid arthritis affecting his hands. On physical examination, there was a plum-sized gouty nodule over the olecranon process. Range of motion was described as "severely limited." Motion was possible from 50 degrees on extension and to 105 degrees on flexion. He complained of pain at the ends of motion. X-rays showed severe osteoarthritis and bursitis. Dr. EM's October 2004 orthopedic evaluation indicated the Veteran complained of pain and stiffness of the right elbow with enlargement of the bursa over the site of the in-service fracture. X-rays showed severe osteoarthritis, post fracture deformity, and an enlarged olecranon bursa with spur. Range of motion was measured as from 20 degrees extension to 110 degrees flexion. A notation in November 2004 show continued complaints of pain. At the August 2006 VA joints examination, the Veteran complained of limitation of motion of the right elbow and pain, both with and without movement. Pain was more pronounced at the ends of movement. Pain increased with repeated movement, as did weakness to a mild degree. There was a mild lack of endurance with repetitive movement. Measured range of motion was from 30 degrees extension to 110 degrees flexion, with an additional functional impairment of 5 degrees with repeated motion due to pain, weakness, and lack of endurance. Marked degenerative changes were seen on x-ray, as well as olecranon bursitis. Dr. EM again evaluated the Veteran for right elbow problems in June 2008. He complained of worsening pain, stiffness, and weakness of the right elbow. Measured range of motion of the elbow was from 25 degrees extension to approximately 135 degrees. (Normal range of motion for the elbow in flexion is 145 degrees, and Dr. EM stated that the Veteran "lacks 10 degrees of flexion.") There was pain at the end of movement. X-rays revealed progression of the degenerative changes. The most recent August 2008 VA joints examination noted complaints of pain and discomfort in the right elbow, with loss of range of motion. Physical examination showed motion from 50 degrees in extension to 90 degrees in flexion, with pain at the ends of movement. Repetitive motion testing resulted in no additional functional impairment. Initially, the Board finds that no compensable evaluation is warranted for limitation of motion in extension under Code 5207. The criteria for a compensable rating, with extension limited to 45 degrees or more, were met only at May 2004 and August 2008 VA examinations, when 50 degrees of extension was noted. At the three intervening examinations, both private and VA, extension was markedly better, from 20 to 35 degrees, even with consideration of the DeLuca factors. The majority of the examinations show the impairment to be noncompensable, and hence the preponderance of the evidence is against the claim. The Board considers the two instances of limitation of extension to 50 degrees to be isolated, acute flare-ups, and the lesser measurements to be a truer gauge of the service connected impairment. The Board notes that the Veteran suffers from nonservice connected gout and rheumatoid arthritis, both of which are noted to have some effect on the right elbow. Turning to the evaluation of flexion of the right elbow, the Board finds that no evaluation in excess of 30 percent is warranted under Code 5206. At no time has the measured limitation of flexion approached 45 degrees. The most severe limitation during the period under appeal here was 90 degrees, which would merit no more than a 20 percent evaluation. Although the record clearly reflects that the Veteran has regular severe pain of the left elbow, and there is evidence of weakness and fatigue on repetitive use, the Board cannot find that these contribute to an actual functional impairment that is the equivalent of 45 degrees of flexion. The evidence of record cannot support a finding of entitlement to an evaluation in excess of 30 percent; the Board is hard pressed to discover the justification for the currently assigned evaluation, and notes that such was assigned following a right bicep tear injury. ORDER Service connection for a right hip disability is granted. An increased rating to 20 percent (based on a function of 10 percent for instability and 10 percent for arthritis with noncompensable loss in full range of motion), and no higher, is granted, subject to the laws and regulations governing payment of monetary benefits, for the Veteran's right knee disorder from the date of receipt of the claim in October 2003. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261, 5257 (2008). Entitlement to an evaluation in excess of 30 percent for residuals of a right ulna fracture is denied. REMAND With regard to the remaining issues of evaluation of asbestos related pleural plaques, and entitlement to TDIU, the Board finds that remand is required. The lung disability claim requires additional evidentiary development and clarification, while the claim for TDIU may not be fully addressed until the evaluation of the lung impairment is finalized. The Veteran's claim for service connection for a lung disorder was inferred from the receipt of private medical records in August 2001, which showed a diagnosis of asbestos related pleural plaques. The issue was framed as entitlement to "service connection for asbestos related disease" in the July 2002 rating decision first addressing the claim. The December 2002 notice of disagreement referred to the claim as a "pulmonary disorder as a result of asbestos exposure." The Veteran referred to the condition as "asbestosis" in various correspondence. In the May 2004 decision granting service connection, the RO specified that the disability being granted service connection for was "asbestos related pleural plaques, previously rated as pulmonary disorder." No other pulmonary condition was service connected. Inexplicably, however, the RO evaluated the disability under Diagnostic Code 6600, as chronic bronchitis. While rating by analogy to a "closely related disease" based on function impacted, anatomical location, and symptomatology is perfectly permissible, its stretches credulity to equate a physical deformity of the lung wall with a disease of the bronchial airways, particularly when the Rating schedule includes Codes directly dealing with lung disability generally and asbestos related disease or physical damage specifically. Importantly, the criteria for evaluation of bronchitis differ significantly from those under Code 6833, for asbestosis, though they are the same as those used for evaluation of restrictive lung disease (Codes 6840 to 6845). Remand is required for the RO to clarify and reconsider the applicable Code; a VA examination will be helpful in determining whether the disability is best evaluated as a restrictive (Code 6833) or interstitial (Code 6845) lung disease. Evaluation as bronchitis is not, however, appropriate. Further, the Board notes that since at least 2006, doctors have stated that there is no functional lung impairment due to the service connected pleural plaques. Pulmonary function testing (PFT) of record appears to support this finding. The currently assigned 30 percent evaluation, in addition to possibly being assigned under an erroneous Code, appears to be based on a private October 2004 PFT conducted during a hospitalization for an acute pulmonary problem. It is unclear exactly what that problem was, as the records are not included in the file; the VA examiner notes that the test was faxed to him for review. As this test is completely out of line with all other testing and objective findings of record, the actual documents must be obtained and associated with the file, in order to allow the Board and RO to properly consider the historical status of the disability. Current testing does not justify the continued assignment of a 30 percent evaluation, and so the full basis for the initial assignment of that evaluation is important to the current issue on appeal. The claim of entitlement to TDIU is dependent upon the evaluation of all service connected disabilities, and hence must be remanded as inextricably intertwined with the evaluation of asbestos related pleural plaques. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2007). Expedited handling is requested.) 1. Take all necessary and reasonable steps to obtain complete private medical records from the Bergen Medical Alliance. In particular, the full report of October 2004 pulmonary function testing and associated clinical evaluations and appointments must be obtained and associated with the claims file. 2. Schedule the Veteran for a VA respiratory examination, to include administration of pulmonary function testing. The claims file must be reviewed in conjunction with the examination. The examiner is asked to identify with specificity the manifestations of service connected asbestos related pleural plaques. The examiner should specify whether the service connected disease and its symptomatology are more closely reflective of or analogous to a restrictive lung disease or to an interstitial lung disease. 3. The RO should review the claims file to ensure that all the foregoing requested development is completed, and arrange for any additional development indicated. The RO should then readjudicate the claims on appeal, to include reconsideration of the currently assigned evaluation for lung disability. If any benefit sought remains denied, the RO should issue an appropriate SSOC and provide the Veteran and his representative the requisite time period to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the appellant unless he is notified. The purposes of this remand are to ensure notice is complete, and to assist the Veteran with the development of his claims. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the appellant until further notice. However, the Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs