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