Citation Nr: 0812320	
Decision Date: 04/14/08    Archive Date: 05/01/08

DOCKET NO.  99-22 888	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Pittsburgh, Pennsylvania


THE ISSUES

1.  Entitlement to a rating higher than 30 percent for status 
post left total knee replacement, from October 1, 1998 
through March 25, 2001.

2.  Entitlement to a rating higher than 60 percent for status 
post left total knee replacement, from May 1, 2002, to 
include on an extra-schedular basis under 38 C.F.R. 
§ 3.321(b)(1).


REPRESENTATION

Appellant represented by:	Jeany Mark, Attorney


ATTORNEY FOR THE BOARD

M. Vavrina, Counsel


INTRODUCTION

The veteran had active military service from July 1957 to 
March 1960.

This appeal to the Board of Veterans' Appeals (Board) 
initially arose from a May 1999 rating decision in which the 
RO, inter alia, denied a rating higher than 30 percent for 
status post left total knee replacement.  The veteran filed a 
notice of disagreement (NOD) in June 1999, and the RO issued 
a statement of the case (SOC) in August 1999.  The veteran 
filed a substantive appeal (via a VA Form 9, Appeal to Board 
of Veterans' Appeals) in November 1999.  In October 2001, the 
RO issued another SOC. 

In a February 2001 decision, the Board denied the veteran's 
claim.  The veteran filed a timely appeal to the United 
States Court of Appeals for Veteran's Claims (Court).  By 
Order dated in October 2004, the Court vacated the Board's 
decision and remanded the matter to the Board for further 
proceedings consistent with an October 2004 single-judge 
Memorandum Decision.  Later, in an October 2004 rating 
decision, the RO increased the veteran's disability rating 
for status post left total knee replacement to 60 percent, 
effective May 1, 2002.  In doing so, the RO granted a 
temporary total evaluation (TTR) based on convalescence under 
38 C.F.R. § 4.30, effective March 26, 2001, and assigned a 
100 percent schedular rating under 38 C.F.R. § 4.71a, 
Diagnostic Code 5055, effective May 1, 2001.

In a June 2005 decision, the Board denied the veteran's claim 
for a rating higher than 30 percent for status post left 
total knee replacement, from October 1, 1998 through March 
25, 2001, and remanded the matter of rating higher than 60 
percent for status post left total knee replacement, from May 
1, 2002, to the RO (via the Appeals Management Center (AMC), 
in Washington, DC)) for further development and notice.  
After accomplishing the required actions, the RO continued 
the denial of  the second claim on appeal (as reflected in 
the July 2007 supplemental SOC (SSOC), and returned the 
matter to the Board for further appellate consideration.

In a July 2007 single-judge Memorandum Decision, the Court 
found that the Board had failed to provide adequate reasons 
or bases for its denial of a rating higher than 30 percent 
for status post left total knee replacement, between October 
1, 1998 and March 25, 2001.  Hence, in an August 2007 Order, 
the Court vacated that part of the Board's June 2005 
decision, which had denied a higher rating for the period 
from October 1, 1998 through March 25, 2001, remanding this 
matter to the Board for further action consistent with the 
Memorandum Decision.  

Thus, excluding all periods for which the veteran has been 
awarded a 100 percent disability rating, the matters before 
the Board remain those set forth on he title page.

The Board notes that, while the veteran previously was 
represented by the Disabled American Veterans, in January 
2005, the veteran granted a power-of-attorney in favor of 
Jeany Mark, a private attorney, with regard to the claims on 
appeal.  Later, in January 2005 and October 2007, the Board 
sent the veteran's attorney letters, inviting her to submit 
additional argument and/or evidence in support of the 
veteran's claims.  In May 2005 and January 2008, the 
veteran's attorney submitted additional written argument on 
the veteran's behalf.

The Board's decision on the claim for a rating higher than 30 
percent for status post left total knee replacement, for the 
period from October 1, 1998 through March 25, 2001, is set 
forth below.  The claim for a rating higher than 60 percent 
for status post left total replacement, from May 1, 2002, is 
addressed in the remand following the decision; this matter 
is being remanded to the RO via the AMC, in Washington, DC.  
VA will notify the veteran when further action, on his part, 
is required.

As a final preliminary matter, the Board notes that, in a May 
2007 statement, the veteran's representative raised a claim 
for a TTR under 38 C.F.R. § 4.30, based on convalescence 
following back surgery.  As this matter has not been 
adjudicated by the RO, it is not properly before the Board; 
hence, it is referred to the RO for appropriate action.  




FINDINGS OF FACT

1.  All notification and development actions needed to fairly 
adjudicate the claim herein decided have been accomplished.  

2.  For the period from October 1, 1998 through March 25, 
2001, the residuals of the veteran's left knee replacement 
consisted, primarily, of objective findings of degenerative 
joint disease, knee pain with medial joint line palpation 
that was more pronounced with flexion and extension, effusion 
that increased with activity, some medial ligamentous laxity, 
limitation of flexion ranging from 85 degrees to 110 degrees 
with pain on terminal flexion, and radiological evidence of a 
possible loosening of the prosthesis and lateral subluxation 
of the patella; the veteran complained of constant or 
recurrent pain and effusion.


CONCLUSION OF LAW

Resolving all reasonable doubt in the veteran's favor, the 
criteria for a 60 percent rating for status post left total 
knee replacement, for the period from October 1, 1998 through 
March 25, 2001, are met. 38 U.S.C.A. §§ 1155, 5103, 5103A 
5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 
4.7, 4.10, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 
5055 (1998-2001).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. 
No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 
(West 2002 & Supp. 2007)) includes enhanced duties to notify 
and assist claimants for VA benefits.  VA regulations 
implementing the VCAA have been codified, as amended at 
38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007).

Notice requirements under the VCAA essentially require VA to 
notify a claimant of any evidence that is necessary to 
substantiate the claim(s), as well as the evidence that VA 
will attempt to obtain and which evidence he or she is 
responsible for providing.  See, e.g., Quartuccio v. 
Principi, 16 Vet. App. 183 (2002) (addressing the duties 
imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)).  
As delineated in Pelegrini v. Principi, 18 Vet. App. 112 
(2004), after a substantially complete application for 
benefits is received,  proper VCAA notice must inform the 
claimant of any information and evidence not of record (1) 
that is necessary to substantiate the claim(s); (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(s), in accordance with 38 C.F.R. § 3.159(b)(1).

In rating cases, a claimant must be provided with information 
pertaining to assignment of disability ratings (to include 
the rating criteria for all higher ratings for a disability), 
as well as information regarding the effective date that may 
be assigned.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 
(2006).  

More recently, in Vazquez-Flores v. Peake, 22 Vet. App. 37 
(2008), the United States Court of Appeals for Veterans 
Claims (Court) held that, at a minimum, adequate VCAA notice 
requires that VA notify the claimant that, to substantiate an 
increased rating claim: (1) the claimant must provide, or ask 
VA 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; (2) 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 of 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; (3) the claimant must be 
notified that, should an increase in disability be found, a 
disability rating will be determined by applying relevant 
diagnostic codes; and (4) the notice must also provide 
examples of the types of medical and lay evidence that the 
claimant may submit (or ask VA to obtain) that are relevant 
to establishing entitlement to increased compensation.  

VCAA-compliant notice must be provided to a claimant before 
the initial unfavorable decision on a claim for VA benefits 
by the agency of original jurisdiction (in this case, the 
RO).  Id.; Pelegrini, 18 Vet. App. at 112.  See also Disabled 
American Veterans v. Secretary of Veterans Affairs, 327 F.3d 
1339 (Fed. Cir. 2003).  However, the VCAA notice requirements 
may, nonetheless, be satisfied if any errors in the timing or 
content of such notice are not prejudicial to the claimant.  
Id.

Here, the duty to notify was not satisfied prior to the 
initial unfavorable decision on the claim by the agency of 
original jurisdiction (AOJ).  Under such circumstances, VA's 
duty to notify may not be "satisfied by various post-
decisional communications from which a claimant might have 
been able to infer what evidence the VA found lacking in the 
claimant's presentation."  Rather, such notice errors may 
instead be cured by issuance of a fully compliant notice, 
followed by readjudication of the claim.  See Mayfield v. 
Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was 
not provided prior to the AOJ's initial adjudication, this 
timing problem can be cured by the Board remanding for the 
issuance of a VCAA notice followed by readjudication of the 
claim by the AOJ) see also Prickett v. Nicholson, 20 Vet. 
App. 370, 376 (2006) (the issuance of a fully compliant VCAA 
notification followed by readjudication of the claim, such as 
an SOC and or an SSOC, is sufficient to cure a timing 
defect).  

In this case, the RO issued post-rating notice letters in May 
2001, March 2006, and April 2007 to the veteran that fully 
addressed all for the notice elements for a higher rating.  
Both the May 2001 and April 2007 letters informed the veteran 
of what information and evidence must be submitted by the 
appellant and what information and evidence would be obtained 
by VA.  These letters specifically informed the veteran to 
submit any evidence in his possession pertinent to the 
claims.  

The May 2001 letter specifically asked the veteran to submit 
evidence showing that his service-connected left knee 
condition had increased in severity and suggested that such 
evidence might include: (1) a statement from his doctor, 
containing physical and clinical findings, the results of any 
laboratory tests or x-rays, and the dates of examinations and 
tests; (2) statements from other individuals who are able to 
describe from their knowledge and personal observations in 
what manner his disability had become worse; and (3) his own 
statement, in lieu of other evidence, describing his 
symptoms, their frequency and severity, and other 
involvement, extension and additional disablement caused by 
his disability.  

The veteran was notified of what was need to support a higher 
rating in the March 2006 letter.  In this letter, the RO gave 
examples of evidence the veteran could submit or tell VA 
about, such as, information about on-going treatment records, 
including VA or other Federal treatment records, not 
previously identified; recent Social Security determinations; 
statements from employers as to job performance, lost time, 
or other information regarding how his condition affects his 
ability to work; or statements discussing his disability 
symptoms from people who have witnessed how they affect him.  

In this case, the Board is aware that the above letters do 
not, individually, contain the level of specificity discussed 
in Vazquez-Flores.  However, the Board finds that any 
deficiency in this regard does not constitute prejudicial 
error in this case because, collectively, these letters 
reflect such notification that a reasonable person could be 
expected to understand what was needed to substantiate a 
higher rating claim (as indicated above, and the evidence of 
record indicates actual knowledge on the part of the veteran 
and/or his representative/attorney.  See Sanders v. 
Nicholson, 487 F. 3d 881, 889 (Fed. Cir. 2007).  

Regarding the latter point, the Board notes that the 
veteran's attorney has provided argument on his behalf before 
the Court and in May 2005 and January 2008 statements and the 
Board is aware of the veteran's statements made during 
various VA examinations and outpatient and inpatient 
evaluations, in which he described the effects of his left 
knee disability on daily life, and that he remains employed 
by VA.  These statements indicate an awareness on the part of 
the veteran and his attorney that information about such 
effects is necessary to substantiate a claim for a higher 
rating.  Significantly, the Court in Vazquez-Flores held that 
actual knowledge is established by statements or actions by 
the claimant or the claimant's representative that 
demonstrate an awareness of what is necessary to substantiate 
a claim.  Vazquez-Flores, 22 Vet. App. at 48, citing Dalton 
v. Nicholson, 21 Vet. App. 23, 30-31 (2007).  

The Board also points out that the August 1999 and October 
2001 SOCs and an April 2007 letter set forth the rating 
criteria applicable to the veteran's left knee disability 
(which suffices for Dingess/Hartman).  Moreover, the 
appellant was provided notice as to how effective dates are 
assigned (if a higher rating is granted), and the type of 
evidence that impacts this type of determination in a March 
2006 letter.  The veteran was accordingly made well aware of 
the requirements for an increased rating for this disability 
pursuant to the applicable rating criteria, and such action 
thus satisfies the third notification requirement of Vazquez-
Flores.  

After the veteran and his representative/attorney were 
afforded opportunity to respond to the notice identified 
above, the October 2001 SOC and July 2007 SSOC reflects 
readjudication of the claims on appeal.  Hence, while this 
notice was provided after the initial rating action on 
appeal, the appellant is not shown to be prejudiced by the 
timing of VCAA-compliant notice.  See Mayfield v. Nicholson, 
20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 
20 Vet. App. 370, 376 (2006) (the issuance of a fully 
compliant VCAA notification followed by readjudication of the 
claim, such as in a SOC or SSOC, is sufficient to cure a 
timing defect).

The record also reflects that VA has made reasonable efforts 
to obtain or to assist in obtaining all relevant records 
pertinent to the matter herein decided.  Pertinent medical 
evidence associated with the claims file consists of the 
veteran's service treatment records and post-service VA 
medical records, as well as reports of VA examinations.  Also 
of record and considered in connection with the appeal are 
various written statements provided by the veteran and or by 
his representative/
attorney, on his behalf.

In summary, the duties imposed by the VCAA have been 
considered and satisfied.  Through notices of the RO, the 
claimant has been notified and made aware of the evidence 
needed to substantiate the claim decided herein, 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 appellant 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, 20 
Vet. App. at 543 (rejecting the argument that the Board is 
without authority to consider harmless error).  See also ATD 
Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

II.  Analysis

Disability evaluations are determined by application of the 
criteria set forth in VA's Schedule for Rating Disabilities, 
which is based on average impairment of earning capacity.  38 
U.S.C.A. § 1155; 38 C.F.R. Part 4.  When a question arises as 
to which of two ratings applies under a particular diagnostic 
code, the higher rating is assigned if the disability more 
closely approximates the criteria for the higher rating; 
otherwise, the lower rating applies.  38 C.F.R. § 4.7.  After 
careful consideration of the evidence, any reasonable doubt 
remaining is resolved in favor of the veteran.  38 C.F.R. § 
4.3.  

The veteran's entire history is to be considered when making 
disability evaluations. See generally, 38 C.F.R. § 4.1; 
Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Where 
entitlement to compensation already has been established and 
an increase in the disability rating is at issue, it is the 
present level of disability that is or primary concern.  See 
Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Nevertheless, 
the Board acknowledges that a claimant may experience 
multiple distinct degrees of disability that might result in 
different levels of compensation from the time the increased 
rating claim was filed until a final decision is made.  Hart 
v. Mansfield, 21 Vet. App. 505, 509-10 (2007).  The following 
analysis is therefore undertaken with consideration of the 
possibility that different ratings may be warranted for 
different time periods.

Historically, in April 1963 rating decision, the RO granted 
service connection and assigned an initial noncompensable 
rating for postoperative residuals of a meniscectomy of the 
left knee joint, effective November 28, 1962.  In a July 1970 
rating decision, the veteran's disability rating was 
increased to 10 percent, effective April 1, 1969.  In a 
January 1996 rating decision, the RO assigned a 20 percent 
rating for the veteran's left knee disability, effective June 
28, 1995.

On July 27, 1997, the veteran underwent a left total knee 
replacement at the Pittsburgh VA Medical Center (VAMC).  In 
September 1998, the veteran filed a claim for an increased 
rating for his left knee disability.

The residuals of the veteran's service-connected left total 
knee replacement have been evaluated under 38 C.F.R. § 4.71a, 
Diagnostic Code 5055.  That diagnostic code provides for 
assignment of a 100 percent rating for one year following the 
implantation of the prosthesis.  This period commences at the 
conclusion of the initial grant of a TTR for one month 
following hospital discharge pursuant to 38 C.F.R. § 4.30.  
Thereafter, a 60 percent rating is warranted if there are 
chronic residuals consisting of severely painful motion or 
severe weakness in the affected extremity.  With intermediate 
degrees of residual weakness, pain, or limitation of motion, 
the disability will be rated by analogy to Diagnostic Codes 
5256, 5261 or 5262.  The minimum rating is 30 percent.  38 
C.F.R. § 4.71a, Diagnostic Code 5055.

The Board points out that, when evaluating musculoskeletal 
disabilities, VA may, in addition to applying schedular 
criteria, consider granting a higher rating in cases in which 
a claimant experiences additional functional loss due to 
pain, weakness, excess fatigability, or incoordination, to 
include with repeated use during flare-ups, and those factors 
are not contemplated in the relevant rating criteria.  See 
38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 
204-7 (1995).  The provisions of 38 C.F.R. §§ 4.40 and 4.45 
are to be considered in conjunction with the diagnostic codes 
predicated on limitation of motion.  See Johnson v. Brown, 9 
Vet. App. 7 (1996)).

Considering the pertinent evidence in light of the above, and 
resolving all reasonable doubt in the veteran's favor, the 
Board finds that, for the period from October 1, 1998 through 
March 25, 2001, the totality of the veteran's left knee 
symptomatology more nearly approximated a 60 percent but no 
higher rating.  

During an October 1998 VA orthopedic examination, the veteran 
complained of effusion and constant pain in his left knee for 
the previous two months because his kneecap kept switching to 
the left.  He reported that he could hardly walk and that he 
could not bend his left knee.  The veteran also stated that 
his knee pain awakened him at night.  The examiner reported 
that the veteran used Ibuprofen for his knee, and that the 
veteran had flare-ups of his left knee pain when he stood on 
his feet or walked for a long period of time.  The veteran 
used neither a brace for his knee joint nor a cane.  He 
reported that improvement in his left knee disability had 
occurred four months after his surgery in 1997, but that 
thereafter his condition seemed to deteriorate and his knee 
pain inhibited his daily activities.  

On examination, the left knee joint appeared to be swollen 
about one inch greater than the right knee joint.  There was 
tenderness at the medial aspect of the left knee joint, 
positive crepitus, and definite swelling with marked 
deformity with multiple scars.  The last scar was from the 
total knee replacement which had not succeeded.  The examiner 
stated that the left knee had angulation that was quite 
obvious, and that range of motion was recorded as extension 
to 0 degrees and flexion to 90 degrees.  The diagnosis was 
status post left knee prosthesis with small effusion within 
the left knee joint.

An October 1998 VA emergency care center note reflects that 
the veteran's chief complaint was left knee pain.  The 
veteran reported that over the previous nine days he had had 
increased swelling and difficulty bending his left knee and 
shifting gears in his car.  He denied trauma to the area.  On 
examination, there was some point tenderness in the medial 
area of the patella, and some medial ligamentous laxity 
without erythema or warmth to the left knee joint.  X-rays of 
the left knee revealed the patellar component was more 
irregular than shown on the July 1998 film.  The impression 
was left knee pain.

A November 1998 VA orthopedic clinic note reflects that the 
veteran had been doing relatively well following his left 
knee replacement until two weeks previously, when he awakened 
one morning with significant left knee pain.  The pain was 
global in nature but tended to localize in the medial and 
lateral aspects of the knee.  While in general, the veteran's 
knee pain was associated with activity, it still would awaken 
him at night.  On examination, there was minimal effusion of 
the left knee, and range of motion was from 0 to about 85 
degrees, with terminal flexion being very painful.  The left 
knee was stable to varus and valgus stressing as well as 
relatively stable to anterior and posterior translation of 
the tibia with the knee flexed.  The examiner could feel the 
cam and post mechanism engage with posterior drawer.  There 
was some pain with medial joint line palpation, which was 
more pronounced with flexion and extension.  With this 
maneuver, a slip of tissue could be felt snapping back and 
forth underneath the digit, which was painful for the 
veteran.  The assessment was rule out infection and aseptic 
loosening.

A later November 1998 VA orthopedic clinic note reflects that 
the veteran reported that his left knee pain was considerably 
improved, although he had persistent medial and lateral joint 
pain, especially when standing.  He also stated that he was 
not limited in his ambulatory ability by this pain as it did 
not bother him as much, compared to standing, when he was 
walking.  X-rays revealed what appeared to be a well-fixed 
and well-aligned total knee arthroplasty.  There was, 
however, some subluxation of the patella.  Range of motion 
left knee was from about 0 to 90 degrees with terminal 
flexion somewhat painful.  Once again, at two very specific 
points on the medial and lateral aspects of the left knee 
joint, pain could be elicited with palpation.  In addition, 
on the lateral aspect of the joint, there was a slip of 
tissue that could be palpated snapping over a small bony 
prominence.  The physician commented that infection had been 
ruled out as the cause of the veteran's knee pain.  Lidocaine 
was injected at two very specific points on the medial and 
lateral aspects of his knee and the veteran reported that 
they had provided 100 percent pain relief.  The physician 
noted his suspicion that the veteran was having some sort of 
"snapping tissue phenomenon" where a fold of synovium or 
other tissue was repetitively snapping over the prominence.  
The physician commented that the veteran had been 
spontaneously improving since his last visit and hoped that 
he continued to do so until the symptoms resolved.  The 
diagnostic injection that day was thought to demonstrate that 
it was probably not aseptic loosening but a snapping tissue 
phenomenon.  The examiner opined that no surgical 
intervention was in order but wanted to see him back in three 
months.

A January 1999 VA orthopedic clinic note reflects a comment 
that the veteran had been doing relatively well since his 
left total knee arthroplasty a year and a half previously.  
However, the veteran then reported still having some medial 
and lateral pain, mostly medial, in the left knee, and that 
he had some slips of soft tissue that seemed to be clicking 
when the knee would flex.  Otherwise, the veteran said that 
the knee felt better than it had the last time.  Range of 
motion of the left knee was from 0 to 110 degrees.  There was 
no evidence of erythema, warmth, or swelling of the left 
knee, and the incision was well healed.  There was an area 
medially of soft tissue that could be felt and that seemed to 
be somewhat painful to the veteran.  The veteran did not want 
a cortisone shot at that time.  X-rays revealed a well-fixed 
knee prosthesis with no slippage or change since the last 
visit.  The examiner commented that the veteran was doing 
well after a left total knee arthroplasty.

An April 1999 orthopedic clinic note shows that the veteran 
continued to complain of knee pain.  The examiner noted a 
history of repeated effusions.  On examination of the left 
knee, there was moderate effusion, a well-healed scar, and no 
erythema or warmth.  Range of motion was from 0 to 110 
degrees.  There was no varus or valgus instability, but there 
was some crepitus with knee motion.  X-rays revealed well-
positioned femoral and tibial components.  There was the 
question of a laterally riding patella.  The assessment was 
recurrent effusions in the knee and pain possibly secondary 
to malpositioned patella component.

An April 1999 x-ray of the left knee revealed a three-part 
left total knee arthroplasty with the components aligned as 
they had been in January 1999.  There was no evidence of 
loosening or other abnormality.  A bone scan of the left 
knee, later in April 1999, revealed mild increased activity 
surrounding the left total knee prosthesis, suggestive of 
possible loosening.  There was no sign of infection.

A May 1999 VA orthopedic clinic note reveals that several 
workups for knee infection had been negative.  The veteran 
had had continued chronic knee pain since about four months 
after surgery, which was greater laterally than medially, 
mostly with activity.  He also had rest pain at night that 
awakened him.  In addition, the veteran had effusions that 
were minimal but that became severe with increased activity.  
On examination, the veteran had minimal effusions.  Left knee 
scars were well healed.  There was no erythema or warmth in 
the left knee.  Range of motion of the knee was from 0 to 110 
degrees.  The veteran's left knee did not exhibit varus or 
valgus instability or patellar clunk.  There was minimal 
crepitus.  It was noted that previous X- rays had shown a 
well-positioned prosthetic component of the femur and tibia 
but had also shown that the patella was riding laterally and 
was somewhat subluxed.  The examiner noted that a revision of 
the left total knee arthroplasty was planned.

A late June 2000 orthopedic clinic note reflects that, during 
an early June visit, the physician had aspirated 40 cc of 
straw-colored fluid from the veteran's knee.  The veteran 
reported that he had been trying to take it easy on his knee, 
and there had been no significant recurrence of effusion, and 
that his left knee was feeling relatively well, although he 
still had complaints of pain and swelling.  On examination of 
the left knee, there was no particular point tenderness, 
erythema or point discharge.  There was effusion of about 
15cc of fluid that was aspirated.  X-rays revealed no signs 
of loosening or significant malalignment.  The assessment 
included objective recurrent effusion of the left knee.

An October 2000 orthopedic clinic note reflects a history of 
problems with the total left knee arthroplasty for quite some 
time with recurrent effusions and aspirations.  The veteran 
reported getting by even in light of recurrent pain and 
effusion into his left knee.

During a January 2001 primary care visit, the veteran 
complained of ongoing degenerative joint disease pain for 
which he took Naprosyn twice a day.  The assessment included 
ongoing knee pain and degenerative joint disease.  Naprosyn 
was discontinued and Tramadol was prescribed.

A February 2001 orthopedic clinic note reveals that bone 
scans had shown some signs of loosening of the prosthesis in 
the veteran's left knee, although nothing specific.  The 
veteran reportedly worked at a VA facility in its file room.  
On examination, range of motion of the left knee was from 0 
to 100 degrees.  The knee was stable to anterior and 
posterior stress, but opened up to valgus stress.  There was 
clicking and pain, medially and laterally.  There was also 
peripatellar pain with patellar glide.  Sensation was intact 
in all nerve distributions distally.  The assessment was 
failed left total knee arthroplasty, with recurrent 
effusions.  The examiner added that the veteran did open up 
medially and had significant pain with this.

The pertinent medical evidence reflects the possibility of 
some loosening of the left knee prosthesis necessitating a 
planned surgical revision; the revision took place on March 
26, 2001.  A surgical note pertaining to the procedure 
reflects that it was discovered that the femoral component 
was too internally rotated and the patella was subluxing 
laterally.  It also appeared that the femoral component was 
overhanging medially and the tibial component was overhanging 
post medially, by a couple of millimeters.

During the period in question, the medical evidence reveals 
that the service-connected left knee disability was 
manifested by complaints of constant or recurrent pain and 
effusion that increased with activity, and objective findings 
of degenerative joint disease, knee pain with medial joint 
line palpation that was more pronounced with flexion and 
extension, some medial ligamentous laxity and subluxation.  
X-rays revealed possible loosening of the prosthesis and the 
patella riding laterally, was somewhat subluxated.  
Limitation of flexion ranged from 85 degrees to 110 degrees 
with pain at terminal flexion.  Although flexion was 
moderately limited, extension, was consistently measured as 
being to 0 degrees, i.e., normal.  See 38 C.F.R. § 4.71, 
Plate II ( establishing standard range of knee motion as from 
0 degrees (on extension) to 140 degrees (on flexion)).  No 
functional loss was associated with the veteran's crepitus, 
which was described as minimal; and, during the period under 
consideration, it does not appear that the veteran used a 
knee brace or other aids to ambulate, such as a cane.  

Based on the aforementioned evidence, and with consideration 
of functional loss due to pain and other factors, consistent 
with 38 C.F.R. §§  4.40 and 4.45, and DeLuca, as well as the 
benefit-of-the-doubt doctrine (see 38 U.S.C.A. § 5107(b) and 
38 C.F.R. § 3.102), the Board finds that, for the period from 
October 1, 1998 through March 25, 2001, the residuals of the 
veteran's left total knee replacement more nearly approximate 
residuals consisting of severe painful motion or weakness in 
the affected extremity, warranting a 60 percent rating.  

There is no basis for more than a 60 percent rating based on 
evaluation of the veteran's disability by analogy under 
Diagnostic Codes 5256, 5261, or 5262 as the maximum 
assignable rating under each of these diagnostic codes is 60, 
50, and 40, respectively.  Moreover, the medical evidence 
fails to show ankylosis of the knee, extension limited to 45 
degrees, or nonunion of tibia and fibula, with loose motion, 
requiring brace.  See 38 C.F.R. § 4.71a, Diagnostic Codes 
5256, 5261, 5262 (1998-2001).

The Board notes that the veteran had a history of traumatic 
arthritis in the left knee with knee instability, which was 
rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5257 and 
5259, prior to his knee replacement.  However, the left total 
knee replacement in July 1997 resulted in a rating under the 
specific diagnostic code for knee replacement.  Diagnostic 
Code 5055 provides a minimum rating of 30 percent, which is 
the maximum schedular rating available under Diagnostic Code 
5257 for knee instability; hence, Diagnostic Code 5257 
provides no basis for assignment of a higher rating.  The 
Board also finds that removal of the knee joint renders a 
separate compensable rating under Diagnostic Code 5003 for 
degenerative arthritis of the knee inapplicable.

The rating schedule itself directs that the knee replacement 
be rated under specific criteria that include residual 
weakness, pain or limitation of motion.  Separate compensable 
ratings for instability and arthritis, or painful motion, 
under Diagnostic Codes 5003 and 5257, would appear to 
constitute impermissible pyramiding in such circumstances-
that is, valuation of the same manifestations of disability 
under various diagnoses resulting in an artificial inflation 
of the service-connected disability rating.  See 38 C.F.R. § 
4.14 (1998-2001).  To do so in this case would effectively 
supplant the specific rating criteria and rating codes 
contained in Diagnostic Code 5055 for evaluation of the 
higher degrees of disability than the minimum schedular 
rating of 30 percent.  Accordingly, separate compensable 
ratings under Diagnostic Codes 5003 for arthritis and 5257 
for knee instability are not warranted in this case.  See 
VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-
98, 63 Fed. Reg. 56,703 (1998).

Further, while, under certain circumstances, separate ratings 
may be assignable for post-surgical scars (see Esteban v. 
Brown, 6 Vet. App. 259, 261-62 (1994) (permitting separate 
ratings for separate problems arising from the same injury if 
they do not constitute the same disability or same 
manifestation under 38 C.F.R. § 4.14), here, the record 
presents no basis for assignment of any compensable rating 
for post-surgical scars during the period in question.  The 
examiners described the scars associated with the left knee 
surgeries as well healed and consistently have found no 
erythema or warmth at the surgical site.  There is thus no 
evidence of infection or ulceration of the scars.  Moreover, 
there is no showing, that the scars are tender and painful on 
objective demonstration; there is also no indication that the 
scars, themselves, result in limitation of function of the 
knee.  See 38 C.F.R. § 4.118, Diagnostic Codes 7803, 7804 and 
7805 (as in effect prior to August 30, 2002).

Accordingly, even considering functional loss due to pain and 
other factors, there is no showing, during the period in 
issue of the implantation of a prosthetic replacement of the 
knee joint, that the criteria for a maximum 100 percent 
rating were met.  

The Board emphasizes that the rating assigned for the period 
from October 1, 1998 through March 25, 2001, depends on 
medical findings relevant to that period and not on future 
events, including surgical revision.  See Degmetich v. Brown, 
104 F.3d 1328, 1331 (Fed. Cir. 1997) (in claim for service 
connection, allegations of a future disability are not 
sufficient for an award of compensation).  Furthermore, the 
veteran has been compensated for his additional disability 
related to his surgical revision on March 26, 2001. 

The above determinations are based on consideration of 
pertinent provisions of the rating schedule.  Additionally, 
the Board finds that there is no showing that at any point 
during the period from October 1, 1998 through March 25, 
2001, the veteran's status post left total knee replacement 
has reflected so exceptional or unusual a disability picture 
as to warrant the assignment of any higher rating on an 
extra-schedular basis.  See 38 C.F.R. § 3.321(b)(1) (cited to 
in the August 1999 SOC).  There simply is no evidence of 
marked interference with employment (i.e., beyond that 
contemplated in the assigned rating), or frequent periods of 
hospitalization.  Indeed, a February 2001 VA clinic note 
refers to the veteran's employment with VA, and the veteran 
was not hospitalized for the left knee at any point during 
the period in question.  There also is no evidence that the 
disability otherwise rendered impractical the application of 
the regular schedular standards.  In the absence of evidence 
of any of the factors outlined above, for the period in 
question, such the criteria for invoking the procedural 
actions outlined in 38 C.F.R. § 3.321(b)(1) are not met.  See 
Bagwell v. Brown, 9 Vet. App. 157, 158-9 (1996); Floyd v. 
Brown, 9 Vet. App. 88, 96(1996); Shipwash v. Brown, 8 Vet. 
App. 218, 227 (1995).

For all the foregoing reasons, the Board concludes that, for 
the period in question, the criteria for a 60 percent but no 
higher rating for status post left total knee replacement are 
met.  The Board has applied the benefit-of-the-doubt doctrine 
in reaching the decision to award the 60 percent rating, but 
finds that the preponderance of the evidence against 
assignment of a higher rating.  
See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2007); Gilbert 
v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  


ORDER

A 60 percent rating for status post left total knee 
replacement, from October 1, 1998 through March 25, 2001, is 
granted, subject to the laws and regulations governing the 
payment of VA compensation.




REMAND

The Board's review of the claims file reveals that further RO 
action for the claim remaining on appeal is warranted.  

With respect to the veteran's claim for a rating higher than 
60 percent for status post left total knee replacement, from 
May 1, 2002, as noted above, the veteran is currently 
receiving the highest disability rating, 60 percent, under 38 
C.F.R. § 4.71a, Diagnostic Code 5055.  In an April 2007 
facsimile, the veteran's attorney confirmed the veteran is 
seeking a rating higher than 60 percent for status post left 
total knee replacement, from May 1, 2002.  Thus, for the 
veteran to prevail on his claim for a rating higher than 60 
percent for status post left total knee replacement from May 
1, 2002, the evidence would need to show that a higher rating 
was warranted on an extra-schedular basis under 38 C.F.R. § 
3.321(b)(1). 

In this regard, the Board notes that the veteran's left knee 
was last examined for rating purposes in August 2002.  The 
Board acknowledges that a claimant may experience multiple 
distinct degrees of disability that might result in different 
levels of compensation from May 1, 2002 until a final 
decision is made.  Hart, 21 Vet. App. at 509-10.  To ensure 
that the record reflects the current severity of the 
disability, the Board finds that a more contemporaneous 
examination, with findings responsive to the applicable 
rating criteria, is needed to properly evaluate the veteran's 
left knee disability.  See 38 U.S.C.A. § 5103A; 38 C.F.R. 
§ 3.159.  See also Green v. Derwinski, 1 Vet. App. 121, 124 
(1991) (VA has a duty to provide the veteran with a thorough 
and contemporaneous medical examination) and Caffrey v. 
Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote 
for rating purposes cannot be considered contemporaneous).  

Accordingly, the RO should arrange for the veteran to undergo 
VA orthopedic examination to evaluate the severity of the 
residuals from the veteran's left total knee replacement.  
The veteran is hereby advised that failure to report to the 
scheduled examination, without good cause, shall result in a 
denial of the claim for increase.  See 38 C.F.R. § 3.655(b) 
(2007).  Examples of good cause include, but are not limited 
to, the illness or hospitalization of the claimant and death 
of an immediate family member.  Id.  If the veteran fails to 
report to the scheduled examination, the RO must obtain and 
associate with the claims file (a) copy(ies) of any notice(s) 
of the date and time of the examination sent to the veteran 
by the pertinent VA medical facility.

Prior to arranging for the veteran to undergo further 
examination, the RO should obtain and associate with the 
claims file all outstanding VA medical records for the period 
in question from the Butler and Pittsburgh VAMCs.  The claims 
file currently includes outpatient treatment records dated 
from February 20, 2002 through September 30, 2002, and from 
July 12, 2004 through April 9, 2007.  The Board emphasizes 
that records generated by VA facilities that may have an 
impact on the adjudication of a claim are considered 
constructively in the possession of VA adjudicators during 
the consideration of a claim, regardless of whether those 
records are physically on file.  See Dunn v. West, 11 Vet. 
App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 
613 (1992).  Hence, the RO must obtain all outstanding 
pertinent VA treatment records, following the current 
procedures prescribed in 38 C.F.R. § 3.159 as regards 
requests for records from Federal facilities.

To ensure that all due process requirements are met, the RO 
should also give the veteran another opportunity to present 
information and/or evidence pertinent to the claim remaining 
on appeal, notifying him that he has a full one-year period 
for response.  See 38 U.S.C.A. § 5103(b)(1) (West 2002); but 
see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2007) (amending the 
relevant statute to clarify that VA may make a decision on a 
claim before the expiration of the one-year notice period).  
The RO should also invite the veteran to submit all evidence 
in his possession, and ensure that its notice meets the 
requirements of Vazquez-Flores (cited and discussed above), 
as appropriate.

After providing the appropriate notice, the RO should attempt 
to obtain any additional evidence for which the veteran 
provides sufficient information, and, if needed, 
authorization, following the current procedures prescribed in 
38 C.F.R. § 3.159.  

The actions identified herein are consistent with the duties 
imposed by the VCAA.  See 38 U.S.C.A. §§ 5103, 5103A; 38 
C.F.R. § 3.159.  However, identification of specific actions 
requested on remand does not relieve the RO of the 
responsibility to ensure full compliance with the VCAA and 
its implementing regulations.  Hence, in addition to the 
actions requested above, the RO should also undertake any 
other development and/or notification action deemed warranted 
by the VCAA prior to adjudicating the claim remaining on 
appeal.  The VA's readjudication of the claim remaining on 
appeal should include consideration of all evidence added to 
the record since the RO's last adjudication of the claim and 
whether a higher rating is warranted on an extra-schedular 
basis under 38 C.F.R. § 3.321(b)(1).  

Accordingly, this matter is hereby REMANDED to the RO, via 
the AMC, for the following action:

1.  The RO should obtain from the Butler 
and Pittsburgh VAMC all outstanding 
pertinent records of evaluation and/or 
treatment of the veteran's left knee, 
from May 1, 2002 to the present.  The RO 
must follow the procedures set forth in 
38 C.F.R. § 3.159(c) as regards 
requesting records from Federal 
facilities.  All records or responses 
received should be associated with the 
claims file.

2.  The RO should send to the veteran and 
his attorney a letter requesting that the 
veteran provide sufficient information, 
and if necessary, authorization to enable 
it to obtain any additional evidence 
pertinent to the claim remaining on 
appeal that is not currently of record.  
The RO should invite the veteran to 
submit all pertinent evidence in his 
possession, and explain the type of 
evidence that is his ultimate 
responsibility to submit.

The RO should ensure that its notice 
meets the requirements of Vazquez-Flores 
(cited to and discussed above), as 
appropriate, and the RO should clearly 
explain to the veteran that he has a full 
one-year period to respond (although VA 
may decide the claim within the one-year 
period).

3.  If the veteran responds, the RO 
should assist him in obtaining any 
additional evidence identified by 
following the current procedures set 
forth in 38 C.F.R. § 3.159.  All 
records/responses received should be 
associated with the claims file.  If any 
records sought are not obtained, the RO 
should notify him and his attorney of the 
records that were not obtained, explain 
the efforts taken to obtain them, and 
describe further action to be taken.

4.  After all available records and/or 
responses from each contacted entity are 
associated with the claims file, the RO 
should arrange for the veteran to undergo 
VA orthopedic examination of his left 
knee, by an appropriate physician, at a 
VA medical facility.

The entire claims file must be made 
available to the physician designated to 
examine the veteran, and the examination 
report should include discussion of the 
veteran's documented medical history and 
assertions.  All indicated tests and 
studies (including X-rays) should be 
accomplished (with all results made 
available to the requesting physician 
prior to the completion of his or her 
report), and all clinical findings should 
be reported in detail and correlated to a 
specific diagnosis.  

The examiner should conduct range of 
motion studies of the left knee 
(expressed in degrees), noting the exact 
measurements for flexion and extension, 
and specifically identifying any 
excursion of motion accompanied by pain.  
If pain on motion in the knee is 
observed, the examiner should comment on 
the extent of pain, and indicate at which 
point pain begins.  Tests of joint motion 
against varying resistance should be 
performed on the knee.  The extent of any 
incoordination, weakened movement and 
excess fatigability on use should be 
described.  In addition, the physician 
should indicate whether, and to what 
extent, the veteran experiences likely 
additional functional loss due to pain 
and/or any of the other symptoms noted 
above during flare-ups and/or with 
repeated use; to the extent possible, the 
examiner should express such functional 
loss in terms of additional degrees of 
limited motion.

The examiner should render a specific 
finding as to the presence or absence of 
any lateral instability and/or recurrent 
subluxation in the left knee.  If 
instability is present, the examiner 
should, based on the examination results 
and the veteran's documented medical 
history and assertions, provide an 
assessment as to whether such instability 
is slight, moderate or severe.  The 
examiner should also indicate whether the 
veteran experiences dislocation in the 
knee, and if so, whether such 
dislocations are accompanied by frequent 
episodes of locking, pain and/or effusion 
into the joint. 

The examiner should set forth all 
examination findings, together with the 
complete rationale for the comments and 
opinions expressed, in a printed 
(typewritten) report

5.  If the veteran fails to report to the 
scheduled examination, the RO must obtain 
and associate with the claims file 
copy(ies) of any notice(s) of the 
examination sent to him by the pertinent 
VA medical facility.

6.  To help avoid future remand, the RO 
must ensure that all requested action has 
been accomplished (to the extent 
possible) in compliance with this 
REMAND.  If any action is not undertaken, 
or is taken in a deficient manner, 
appropriate corrective action should be 
undertaken.  See Stegall v. West, 11 Vet. 
App. 268 (1998). 

7.  After completing the requested 
actions, and any additional notification 
and/or development deemed warranted, the 
RO should readjudicate the claim for 
higher rating claim remaining on appeal.  
If the veteran fails, without good cause, 
to report to the scheduled examination, 
the RO should apply the provisions of 
38 C.F.R. § 3.655(b), as appropriate.  
Otherwise, the RO should adjudicate the 
claim, on the merits (to include on an 
extra-schedular basis, pursuant to 38 
C.F.R. § 3.321(b)(1)), in light of all 
pertinent evidence and legal authority.  

8.  If the benefit sought on appeal 
remains denied, the RO must furnish to 
the veteran and his attorney an 
appropriate SSOC that includes clear 
reasons and bases for all determinations, 
and afford them the appropriate time 
period for response before the claims 
file is returned to the Board for further 
appellate consideration.

The purpose of this REMAND is to afford due process; it is 
not the Board's intent to imply whether the benefits 
requested should be granted or denied.  The veteran need take 
no action until otherwise notified, but he may 
furnish additional evidence and/or argument during the 
appropriate time frame.  See Kutscherousky v. West, 12 Vet. 
App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); 
Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 
3 Vet. App. 129, 141 (1992).

This REMAND 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).



______________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs