Citation Nr: 0810728 Decision Date: 04/01/08 Archive Date: 04/14/08 DOCKET NO. 04-14 906 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent disabling for right knee post medial meniscectomy with degenerative joint disease (DJD) from July 15, 2002 to July 30, 2004. 2. Entitlement to a disability rating in excess of 30 percent disabling for right knee total knee arthroplasty (TKA), as of September 1, 2005. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The veteran served on active duty from July 1970 to November 1990. This case comes before the Board of Veterans' Appeals (Board) from a rating decision of February 2003 from the Department of Veterans Affairs (VA) Regional Office (RO), in St. Petersburg, Florida, which in part denied a rating in excess of 10 percent disabling for the veteran's right knee disorder. In July 2005, the Board remanded this matter for further development. While the matter was pending, the RO in a September 2006 rating decision granted a temporary total rating from July 30, 2004 to August 31, 2005, with a 30 percent rating assigned as of September 1, 2005. The 10 percent rating remained in effect prior to July 30, 2004. The Board has recharacterized these issues to reflect this increased rating which remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993).. The appeal of the issue of entitlement to a disability rating in excess of 30 percent disabling for TKA residuals as of September 1, 2005 is REMANDED to the agency of original jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. FINDING OF FACT For the period from July 15, 2002 to July 30, 2004, the veteran's right knee arthritis is shown to result in pain with occasional exacerbating episodes, but generally without evidence of laxity, instability or dislocations and noncompensable ranges of motion shown throughout, with the most recent ranges shown in February 2004 and May 2004 VA examinations of 0 to 125 degrees and 0 to 110 degrees. CONCLUSION OF LAW The criteria for a 20 percent rating for arthritis of the right knee have been met from July 15, 2002 to July 30, 2004. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.14, 4.25, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the present case, the veteran's claim on appeal was received in July 2002. The RO adjudicated it in February 2003. In this case, the VA's duty to notify was satisfied subsequent to the initial AOJ decisions by way of a letter(s) sent to the appellant in April 2003. Additional letters were sent in August 2005 and April 2006. The letters provided initial notice of the provisions of the duty to assist as pertaining to entitlement to service connection and for an increased rating, which included notice of the requirements to prevail on these types of claims, of his and VA's respective duties, and he was asked to provide information in his possession relevant to the claim. The duty to assist letter notified the veteran that VA would obtain all relevant evidence in the custody of a federal department or agency. He was advised that it was his responsibility to either send medical treatment records from his private physician regarding treatment, or to provide a properly executed release so that VA could request the records for him. The veteran was also asked to advise VA if there were any other information or evidence he considered relevant so that VA could help by getting that evidence. Although the notice letters were not sent before the initial AOJ decision in this matter, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the AOJ also readjudicated the case by way of a supplemental statement of the case issued in December 2006 after the notice was provided. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. For an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet App. 37 (2008). Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, supra. In this case the April 2006 letter specifically advised the veteran to refer to previous rating decisions, statements of the case and/or supplemental statements of the case for specific evidence. This letter also told the veteran that he should submit evidence showing his service-connected disability had gotten worse, and told him to send recent medical records preferably within the past 12 months. It informed him more specifically that his disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. This letter also provided examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation -- e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Additionally this notice also apprised him of how the VA determines the effective date for entitlement to benefits. See Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service- connection claim, including the degree of disability and the effective date of an award. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). Service medical records were previously obtained and associated with the claims folder. Furthermore, VA and private records were obtained and associated with the claims folder. Assistance shall also include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The evidence of record includes VA examinations reports, including the most recent ones from February 2004 and May 2004. In summary, the duties imposed on the VA to notify and assist have been considered and satisfied. Through notices of the RO and the AMC, the claimant has been notified and made aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim decided on appeal. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the claimant or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter being decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Increased Rating Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R., Part 4 (2007). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 (2007) requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 (2007) requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.7 (2007) provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the 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 visible behavior of the claimant 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 (2004). The Court has held that the RO must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). According to 38 C.F.R. § 4.59 (2007), painful motion is an important factor of disability with any form of arthritis, 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. See also Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991); Hicks v. Brown, 8 Vet. App. 417 (1995). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). While the veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). A recent decision of the United States Court of Appeals of Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service- connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Service connection for a right knee disorder was granted by the RO in April 1991, and an initial noncompensable rating was assigned. He filed this claim on appeal on July 15, 2002. The rating on appeal in part assigned an increased 10 percent rating for the right knee disorder from July 15, 2002 to July 30, 2004. The veteran appealed the determination. Among the evidence pertinent to the appeal were private treatment records reflecting that during 2001 he had problems with numbness in his thighs as well as edema shown to be do to other medical problems besides his right knee arthritis. Treatment for right knee problems were also documented in 2001. In April 2001, he was noted to have been taking Medrol for multiple arthritic complaints including his right knee but had to stop taking this due to it causing headaches. His knee symptoms were noted to have gone away while he was on Medrol but came back after he stopped. He was switched to Celebrex and by May 2001 he was said to be doing well with Celebrex and his knees did not bother him at all. A July 2001 X-ray study revealed moderate severity of DJD of the right knee with greatest involvement in the medial compartment. A July 2001 record gave a history of arthroscopic surgery on the knee, but did not specify which one. In July 2001 the veteran was seen for bilateral knee pain with a history of medial meniscectomies in 1971 with progressive knee pain over the past 10 years. X-rays revealed medial joint collapse. The veteran worked as an aircraft mechanic which involved climbing stairs and ladders, and he had severe pain at the end of the day. Physical examination revealed the right knee to have a skin lesion which he had known about over the medial joint line. He had negative patellar apprehension and significant pain over the medial joint line. The assessment was DJD medial joint line. An August 2001 record revealed treatment for other medical problems but physical examination of the musculoskeletal system revealed no frequent swelling, stiffness or weakness. The knees were not specifically mentioned. In early November 2001 complaints regarding the left knee were addressed and he was approved for a series of injections. However two subsequent records from November 2001 revealed the veteran underwent 3 injections of Synvisc for osteoarthritis of the right knee. The record from the second injection revealed minimal complaints other than continued knee pain. The record discussing the third injection to the right knee revealed him to have tolerated the previous 2 without difficulty and that his pain was decreasing. He had no effusion, erythema or drainage from the previous injection site. His range of motion was 0 to 95 degrees and quadricep strength was 4/5. He continued with medial joint pain and pain with all activities. The assessment was osteoarthritis of the right knee. A June 2002 follow-up for multiple problems revealed complaints of DJD in the knees that required surgery in the past. No significant findings regarding the right knee were reported except that all extremities showed no clubbing, cyanosis or edema. The report of a January 2003 VA examination of the veteran's right knee as well as left knee, noted complaints of knee problems since 1971, when he was diagnosed with torn medial meniscus and underwent surgery on the right knee in 1971 with mensicectomy of the right knee. He got better over time but started to return over the past 5 to 10 years with daily pain and stiffness and limitations with weightbearing activity. He denied any history of dislocation or rheumatoid arthritis. He was not taking any oral medications for his knee. He also was not using any orthotic brace or assistive devices. He complained of limitations because of his knee condition on weightbearing activities. He could not run and was limited in walking. He could not squat or kneel. He had difficulties performing his duties as an aircraft mechanic. On physical examination he was afebrile. His vital signs were stable. He walked with a slight antalgic gait. He used no assistive devices and wore no orthotics or braces. There was no obvious deformity and there was a trace effusion for the right knee. He had full extension at 0 degrees and had flexion of greater than 140 degrees. There was no significant laxity or instability of the right knee appreciated. There was slight pain with range of motion at the end points. X-rays were pending. The diagnosis was chronic bilateral knee pain and synovitis status post orthoscopic debridement and prior meniscectomies. He probably had secondary arthritis, but X-ray confirmation was necessary. The examiner opined that the veteran can go through periods of flareup which may alter the strength and coordination or range of motion. How often such flareups occurred was impossible to say with any degree of medical certainty. The addendum revealed that X-ray examination showed marked degenerative arthritic change of the right knee. Private treatment records from 2003 primarily deal with treatment for left knee problems with a left TKA done in October 2003 with recovery through January 2004. However some of the records address bilateral knee complaints including the right knee. A March 2003 record addressing bilateral knee pain revealed complaints of problems climbing steps and even slight inclines bothered his knee. He said he was progressively worse since he had surgery in 2001. He had full range of motion on examination but a mild Trendelburg gait with some trouble walking. Pulse were intact. There was no varus or valgus. X-rays were noted to show medial joint line narrowing and some patellofemoral changes although the joint line surface appeared satisfactory. The assessment was degenerative arthritis of the knees bilaterally possibly medial compartment. The March 2003 X-ray report diagnosed moderate osteoarthritic changes probably unchanged compared to the prior X-ray of July 2001. In May 2003 he was noted to have degenerative arthritis of both knee with full range of motion. Among the records prior to the October 2003 left knee TKA surgery was a record dated the day of the procedure with presurgical history noting that after he had the bilateral knee surgeries in 1971 he did well for years and even jogged until the late 1980's. By 1995 he had problems with swelling of the knee and he had trouble climbing steps and even slight inclines. He was said to limp at the end of the day although he had no locking or giving way. Orthopedic examination revealed palpable pulses, no gross varus or valgus. He had mild Trandelberg gait with trouble walking on his heels. He had full range of motion and X-ray showed medial joint narrowing bilaterally with some mild patellofemoral arthritis. The impression was degenerative arthritis of the bilateral knees primarily medial compartment. The report of a February 2004 VA examination of the knees included no records to review. Left knee complaints status post recent left knee TKA in October 2003 were discussed. Regarding the right knee the veteran described his problems with right knee pain as a sharp pain deep inside the joint, made worse by prolonged weight bearing. Walking on stairs or inclines caused the worst pain. By the end of the day his pain was so bad that he had to rest and elevate his legs for the rest of the evening. He denied his knees giving out on him and denied locking. He did have significant swelling of the right knee, as well as weakness and frequent popping of this knee. Physical examination findings for the right knee revealed overall bony enlargement. He had no obvious joint swelling, effusion or erythemia. His range of motion was 0 to 125 degrees with mild tenderness to palpation along the medial joint line and crepitation with flexion and extension and positive grind test. There was no motion with valgus or varus stress and he had negative Lachman's. His posture was normal. His gait showed a significant limp to the left. There was no obvious muscle atrophy of the lower extremities or quadriceps. He was diagnosed with moderately severe degenerative arthritis of the right knee. He had no change on additional motion or repetitive use. Yet it was most likely he would experience increased pain, incoordination, weakness and fatigability with repetitive use or during a flareup. However it was not possible to measure these objectively with any degree of medical certainty. The report of a May 2004 VA examination revealed the veteran to give a history of moderate DJD of the right knee with a meniscectomy done. This has been a significant problem for both knees and he was noted to have had a left knee total knee replacement. He complained of pain, weakness, stiffness and swelling of the right knee. He had difficulty later in the day of walking or prolonged standing which his job required. He had been off work since his left knee replacement. He took nonsteroidal medications for his right knee. There were no flareups associated with this. He used a cane at this time for balance. There had been no surgery of the right knee. There were no episodes of dislocation. There was no inflammatory arthritis. As far as his occupation and daily activities, any prolonged walking or standing caused significant pain and swelling of the knee. Physical examination revealed his right knee to have a range of motion of 0 to 110 degrees. There was no lateral instability. He had moderate effusion around the knee. He was slightly tender on the lateral aspects and at the base of the patella. Lachman's and McMurray's were negative. Range of motion and repetitive motion did not aggravate the knee at this time in a nonweightbearing position. With weightbearing he was unable to put repetitive stress on the knee. There was no indication to do diagnostic tests as arthritis was well documented in his records. The diagnosis was right knee status post medial meniscectomy with degenerative joint disease. Private medical records from 2004 prior to his right knee TKA surgery reveal that between March 2004 and mid-July 2004, problems with a keloid scar on the right knee were addressed, with this scar resected in March 2004 to decrease the risk of it infecting the artificial joint that would eventually be placed in the right knee. The veteran had some complications with infection around the incision which was treated between April 2004 and June 2004. By July 12, 2004 the scar was completely healed and by July 20, 2004 he was very anxious to have the TKA for the right knee. The doctor speculated that even with this surgery, he probably could not return to his job as it required squatting, stooping, kneeling and being on his feet. On July 30, 2004 he underwent the TKA. The RO is noted to have evaluated the veteran's right knee disorder under the criteria for traumatic arthritis, Diagnostic Code 5010 as well as the criteria for instability, Diagnostic Code 5257. Most recently, it continued a 10 percent evaluation based on painful movement, but continue to use Diagnostic Code 5257. According to VA General Counsel, in VAOPGPREC 9-98 (1998), when radiologic findings of arthritis are present, a veteran whose knee disability is evaluated under Diagnostic Code 5257 or 5259 is also entitled either to a separate compensable evaluation under Diagnostic Code 5260 or 5261, if the arthritis results in compensable loss of motion, or to a separate compensable evaluation under 5010 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain. VA General Counsel recently held that separate ratings under Diagnostic code 5260 (limitation of flexion of the leg) and diagnostic code 5261 (limitation of extension of the leg) may be assigned for a disability of the same knee. VAOPGCPREC 9- 2004 (Sept. 17, 2004). VA Fast Letter 04-22 further clarified this General Counsel decision and noted that all VA examinations must record range of motion findings for flexion and extension. VA Fast Letter 04-22 also pointed out that 38 C.F.R. §§ 4.40, 4.45 and 4.59 must still be considered and that objective evidence of pain on motion must still be considered if there is compensable limitation of flexion and extension, although the rules against pyramiding would only allow pain on motion to possibly elevate only one of the compensable evaluations of motion. Traumatic arthritis established by X-ray findings is to be evaluated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis established by x-ray findings will be evaluated on the basis of limitation of motion of the specific joint or joints involved. Diagnostic Code 5003. Diagnostic Code 5003 notes that in the absence of limitation of motion, rate as below: 20 percent with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations; and 10 percent with X-ray evidence of involvement of two or more major joints or two or more minor joint groups. Note (1) under Diagnostic Code 5003 states that the 20 percent and 10 percent ratings based on x- ray findings, above, will not be combined with ratings based on limitation of motion. The average normal range of motion of the knee is from 0 to 140 degrees. 38 C.F.R. § 4.71a, Plate II. Extension limited to 5 degrees receives a noncompensable rating; extension limited to 10 degrees warrants a 10 percent rating; extension limited to 15 degrees warrants a 20 percent rating; and extension limited to 20 degrees warrants a 30 percent rating. Limitation of flexion of the leg is addressed in Diagnostic Code 5260. Flexion limited to 60 degrees warrants a noncompensable rating. Separate ratings may be assigned under Diagnostic Codes 5260 (limitation of extension of the leg) and 5261 (limitation of flexion of the leg). VAOPGCPREC 9-2004 (2007). Diagnostic Code 5257 addresses other impairments of the knee, specifically, recurrent subluxation or lateral instability. The ratings are based on whether the impairment is slight (10 percent disabling), moderate (20 percent disabling), or severe (30 percent disabling). Based on a review of the foregoing, the Board finds that a 20 percent rating is warranted for the veteran's right knee disorder under Diagnostic Code 5003 as he is shown to have X- ray evidence of arthritis of the right knee with occasional incapacitating exacerbations, primarily due to pain. This pain is shown to have caused problems with using stairs, squatting and performing his job duties, as well as requiring rest end elevation of the knee at the end of the day. Thus, a 20 percent evaluation is warranted on the basis of X-ray evidence of involvement of 2 or more major joints with occasional incapacitating exacerbations. Activities such as repetitive use caused exacerbations that temporarily rendered him unable to perform activities such as weightbearing. However, none of the records or VA examination reports shows evidence of any compensable manifestations of instability or loss of motion on either flexion or extension. Repeatedly he had full range of motion, even on repeat testing, and there were no complaints or objective findings of instability, dislocations or laxity shown in these records and examination reports. Thus consideration of separate ratings for instability under Diagnostic Codes 5257 and for arthritis, to include loss of motion under Diagnostic Codes 5260 and 5261 is not applicable in this case. Likewise as there is no impairment of the tibia and fibula shown, a higher evaluation under Diagnostic Code 5262 is not for consideration. The Board finds that with application of 38 C.F.R. § 4.7, the criteria for a 20 percent rating is met for the right knee disorder effective from July 15, 2002 to July 30, 2004. ORDER An evaluation of 20 percent, but no more, for a right knee disorder is granted prior to July 30, 2004, subject to the laws and regulations governing the award of monetary benefits. REMAND Regarding the remaining issue of entitlement to a rating in excess of 30 percent disabling for the veteran's residuals of right knee TKA as of September 1, 2005, the Board finds that remand regarding this period is necessary. The matter was previously remanded in July 2005 to include obtaining additional records of post TKA surgery treatment, and if necessary obtain a new VA examination. The records which were obtained pursuant to this remand are noted to have been records from the July 30, 2004 surgery and postsurgery records up through early 2005, during which time he was in receipt of a temporary total disability rating. There have been no records obtained since his temporary total rating expired on September 1, 2005. Furthermore given the passage of time since the veteran's last examination, as well as the intervening TKA surgery, a new VA examination should be conducted to address his current symptoms status post TKA surgery of the right knee. To ensure that the VA has met its duty to assist the claimant in developing the facts pertinent to the claim, the case is REMANDED for the following: 1. The AOJ should request the veteran to identify the names, addresses, and dates of treatment for all medical care providers, VA and non-VA, inpatient and outpatient, who may possess additional records referable to treatment for his right knee disability from September 1, 2005 to the present. The veteran should provide all necessary written releases for these records. If any of the identified records cannot be obtained, the AOJ should notify the veteran of such and describe the efforts used in requesting these records. 2. After completion of the above, the AOJ should schedule the veteran for a VA orthopedic examination to determine the nature and extent of any disability resulting from his service- connected right knee TKA residuals. The claims file should be made available to the examiner for review of the pertinent evidence in conjunction with the examination. Any further indicated special studies should be conducted, to include X-rays. The examiner should record pertinent medical complaints, symptoms, and clinical findings, and note (1) whether the veteran has chronic residuals consisting of severe painful motion or weakness in the affected extremity. (2) The condition and positioning of the right knee prosthesis shown by X-ray and (3) the active and passive range of motion of the right knee in degrees. The examiner also should comment on the functional limitations caused by the veteran's service-connected right knee disability. It is requested that the examiner address the following questions: (a) Does the right knee disability, status post cause weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy? If the severity of these manifestations cannot be quantified, the examiner should so indicate. Specifically, the examiner must address the severity of painful motion from intermediate degrees to severe. The examiner must note at what degree in the range of motion that pain is elicited as well as the severity of such pain. (b) With respect to subjective complaints of pain, the examiner should comment on whether the subjective complaints are supported by objective findings; whether any pain is visibly manifested upon palpation and movement of the right knee; and whether there are any other objective manifestations that would demonstrate disuse or functional impairment of the knee due to pain attributable to the service-connected disabilities. (c) The examiner must discuss what is the effect of all noted manifestations on the ability of the veteran to perform average employment in a civil occupation. 3. Following completion of the above development, the AOJ should readjudicate the veteran's claim. If the benefit sought on appeal remains denied, the veteran should be provided a supplemental statement of the case, which reflects consideration of all additional evidence received. It must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and discussion of all pertinent regulations. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The purposes of this remand are to comply with due process of law and to further develop the veteran's claim. No action by the veteran is required until he receives further notice; however, the veteran is advised that failure to cooperate by reporting for examination may result in the denial of the claim(s). 38 C.F.R. § 3.655 (2007). The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case, pending completion of the above. The appellant and his representative have the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2007). ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs