Citation Nr: 1126221 Decision Date: 07/12/11 Archive Date: 07/19/11 DOCKET NO. 07-00 420 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to a rating in excess of 30 percent for the right knee, status post total knee arthroplasty for the period prior to January 2, 2008. 2. Entitlement to a schedular rating in excess of 60 percent for the right knee, status post total knee arthroplasty for the period from January 2, 2008 to March 29, 2009. 3. Entitlement to a schedular rating in excess of 30 percent for the right knee, status post total knee arthroplasty for the period from May 1, 2010. 4. Entitlement to a rating in excess of 60 percent for the right knee, status post total knee arthroplasty, on an extraschedular basis. 5. Entitlement to total disability individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Donna D. Ebaugh INTRODUCTION The Veteran served on active duty from May 1974 to January 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision of the RO in Seattle, Washington. The file was subsequently transferred to the RO in Reno, Nevada. In February 2008, the Veteran testified at a hearing before the undersigned. A transcript of the hearing is of record. This case was previously remanded by the Board in April 2008 and is now ready for disposition. The issues of entitlement to TDIU and entitlement to rating in excess of 60 percent for the right knee, status post total knee arthroplasty, on an extraschedular basis, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. (CONTINUED NEXT PAGE) FINDINGS OF FACT 1. For the period prior to January 2, 2008, the Veteran's right knee replacement did not result in chronic residuals consisting of severe painful motion or weakness, ankylosis, limitation of extension to 10 degrees, or instability. 2. For the period from January 2, 2008 to March 29, 2009, the Veteran was in receipt of the maximum schedular rating for a right knee replacement. 3. For the period from May 1, 2010, the Veteran's right knee replacement resulted in chronic residuals consisting of severe painful motion or weakness. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for the right knee, status post total knee arthroplasty for the period prior to January 2, 2008, have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159 (as amended), 4.1, 4.2, 4.3, 4.6, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5055, 5256-5262 (2010). 2. The criteria for a rating in excess of 60 percent for the right knee, status post total knee arthroplasty for the period from January 2, 2008 to March 29, 2009, have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159 (as amended), 4.1, 4.2, 4.3, 4.6, 4.7, 4.40, 4.45, 4.59, 4.68, 4.71a, DCs 5055, 5256-5262 (2010). 3. The criteria for a rating of 60 percent, but no higher, for the right knee, status post total knee arthroplasty for the period from May 1, 2010, have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159 (as amended), 4.1, 4.2, 4.3, 4.6, 4.7, 4.40, 4.45, 4.59, 4.68, 4.71a, DCs 5055, 5256-5262 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Here, the duty to notify was not satisfied prior to the initial unfavorable decision on the claim by the RO. 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 RO'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 RO); 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 or SSOC, is sufficient to cure a timing defect). In this case, the VCAA duty to notify was satisfied subsequent to the initial RO decision by way of a letter sent to the Veteran in April 2008 that fully addressed all four notice elements. The letter informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. Therefore, he was "provided the content-complying notice to which he [was] entitled." Pelegrini, 18 Vet. App. at 122. Furthermore, the increased rating claim was readjudicated following the April 2008 Remand, and a supplemental statement of the case was issued in March 2011. Consequently, the Board finds that the duty to notify has been satisfied. With respect to the Dingess requirements, the April 2008 letter provided notice of the type of evidence necessary to establish a disability rating or effective date for the disability on appeal. Next, VA has a duty to assist a Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010). In compliance with its duty to assist, the RO associated the Veteran's service treatment records and VA outpatient treatment records. Moreover, the Veteran was afforded VA examinations to evaluate the disability on appeal. As an initial matter, the Board finds that the June 2005, June 2007, May 2009, and June 2010 examinations were adequate for the purpose of determining the relevant levels of severity of the Veteran's disability. The examiners conducted extensive personal physical examinations and conducted the appropriate radiological testing. Moreover, the May 2009 and June 2010 examiners reviewed the Veteran's c-file. There is no indication that the examiners were not fully aware of the Veteran's past medical history or that they misstated any relevant facts. The Board acknowledges that the June 2005 VA examiner did not review the claims file. Similarly, the June 2007 VA examiner did not note whether the claims file was reviewed. The VA examiners conducted a thorough evaluation and reviewed relevant X-ray evidence. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). Moreover, as discussed above, the Veteran was afforded subsequent examinations in May 2009 and June 2010, which is also found to be thorough and adequate upon which to base a decision. Further, the June 2005 VA examiner did not note whether there was any additional limited motion on repetitive testing. Notwithstanding the lack of repetitive testing at the June 2005 examination, the Board accepts the June 2005 findings to support the Veteran's range of motion and emphasizes that the Veteran specifically reported that he did not experience flare-ups at the time. Further, the June 2007 VA examiner did conduct repetitive testing and noted no additional limitation of motion. Again, the Veteran was reevaluated in May 2009 and June 2010. Notably, the Board's April 2008 remand ordered the subsequent May 2009 and June 2010 VA examinations. Here, the Board finds that the examiners substantially complied with the Board's requests for opinions regarding the Veteran's ranges of motion and the affect of his disability on his employment. The Board acknowledges that the Veteran disagrees with the May 2009 VA examiner's assessment regarding his ability to perform sedentary work but finds that a remand for further examination is not necessary for the above reasons. Additionally, the Veteran was afforded the opportunity to testify before the Board in April 2008. In Bryant v. Shinseki, 23 Vet.App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. 3.103(c)(2) (2010) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the undersigned essentially elicited testimony necessary to determine the nature of the Veteran's disability. In addition, the undersigned sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Transcript (T) pages 18, 19. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor has identified any prejudice in the conduct of the Board hearing. By contrast, the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Ratings Historically, the Veteran was granted service connection for degenerative joint disease in the right knee, in October 2002. His disability was rated as 30 percent disabling for arthritis and instability. In March 2004, he underwent a total right knee replacement. He was granted a 100 percent rating from March 23, 2004 to April 20, 2005. A 30 percent disability rating was assigned from May 1, 2005. In June 2005, he underwent a VA compensation and pension examination. Following the examination, a September 2005 rating decision confirmed the 30 percent disability rating from May 1, 2005. The Veteran filed a notice of disagreement, which led to the current appeal before the Board. Additionally, while the increased rating claim was on appeal, he experienced loosening of the right knee replacement and following the April 2008 Board remand, the Veteran underwent another right knee replacement in March 2009. As such, his ratings were adjusted in a March 2011 rating decision as follows: from January 2, 2008 to March 29, 2009, his 30 percent rating was increased to 60 percent; from March 30, 2009 to April 30, 2010, he was assigned a 100 percent rating; and from May 1, 2010, he was assigned the minimum 30 percent evaluation for a total knee replacement. Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2010). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2010). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25 (2010). However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14 (2010). The Court has held that the RO must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The Board notes that the guidance provided by the CAVC in DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Hart v. Mansfield, 21 Vet. App. 505 (2007). During all of the relevant periods on appeal, the Veteran's right knee disability has been rated under DCs 5257-5055. Under this DC 5055, for one year following implantation, the knee joint warrants an evaluation of 100 percent. Thereafter, where there are chronic residuals consisting of severe painful motion or weakness in the affected extremity, a 60 percent evaluation is warranted. Where there are intermediate degrees of residual weakness, pain or limitation of motion, the disability is rated by analogy to DCs 5256, 5261 or 5262. The minimum evaluation is 30 percent. If there are intermediate degrees of residual weakness, pain, or limitation of motion, DC 5055 instructs to rate by analogy to DC 5256, 5261, or 5262. VA's General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under diagnostic Codes 5003 and 5257. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997). The General Counsel subsequently clarified that for a knee disability rated under DC 5257 or DC 5259 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under DC 5260 or DC 5261 need not be compensable but must at least meet the criteria for a zero-percent rating. A separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. VAOPGCPREC 9-98 (1998). VA's General Counsel has also held that separate ratings are also available for limitation of flexion and limitation of extension under DCs 5260 and 5261. VAOPGCPREC 9- 2004 (2004). For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5260 provides for a zero percent evaluation where flexion of the leg is limited to 60 degrees. For a 10 percent evaluation, flexion must be limited to 45 degrees. A 20 percent evaluation is warranted where flexion is limited to 30 degrees. A 30 percent evaluation may be assigned where flexion is limited to 15 degrees. Diagnostic Code 5261 provides for a zero percent evaluation where extension of the leg is limited to 5 degrees. A 10 percent evaluation requires extension limited to 10 degrees. A 20 percent evaluation is warranted where extension is limited to 15 degrees. A 30 percent evaluation may be assigned where the evidence shows extension limited to 20 degrees. For a 40 percent evaluation, extension must be limited to 30 degrees. And finally, where extension is limited to 45 degrees a 50 percent evaluation may be assigned. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. Diagnostic Code 5256 provides for the assignment of a 30 percent rating when there is ankylosis in a favorable angle in full extension, or in slight flexion between 0 and 10 degrees. A 40 percent rating is assigned when there is extremely unfavorable ankylosis in flexion between 10 and 20 degrees. A 50 percent rating is warranted when there is extremely unfavorable ankylosis in flexion between 20 and 45 degrees. A 60 percent rating is warranted when there is extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more. Ankylosis is "immobility and consolidation of a joint due to disease, injury, surgical procedure." See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). A 40 percent rating under DC 5262 requires nonunion of the tibia and fibula with loose motion, requiring use of a brace. Malunion of the tibia and fibula with marked knee or ankle disability allows for the assignment of a 30 percent rating; with moderate disability, 20 percent; and with slight disability, 10 percent. Knee impairment with recurrent subluxation or lateral instability warrants a 10 percent evaluation if it is slight, a 20 percent evaluation if it is moderate, or a 30 percent evaluation if it is severe. 38 C.F.R. § 4.71a, DC 5257. a. Prior to January 2, 2008 As noted above, the Veteran's right knee disability was rated under DC 5257-5055 as 30 percent disabling prior to January 2, 2008. During that period, the Veteran underwent a VA examination in June 2005. At that time, the Veteran reported constant aching pain over the anterior aspect of the knee with painful, limited motion of the knee. He reported that his knee pain worsened with walking 1 to 1 1/2 miles or standing for more than one hour. He reported that he used a cane once per week if he planned to stand or walk for more than two hours. He claimed constant mild swelling of the knee but indicated that he experienced no locking, clicking, instability or giving way of the knee. He also indicated that he took pain medication (Motrin) twice a day. He reported that he had no flare ups. He also reported that he was a student at the time, attending school four hours per day, four days per week. He reported that he was also able to do all of his activities of daily living without restrictions. Upon physical examination, the June 2005 VA examiner noted a minimal limp favoring the right leg. He walked easily on his heels and toes. He performed 50 percent of the normal squatting maneuver and complained of right knee pain during the entire squatting maneuver. He had mild intra-articular effusion. He had flexion from zero to 80 degrees with a complaint of pain at the extreme of flexion. There was no tenderness to palpation. Ligaments were intact with varus and valgus stress. Drawer sign was normal. The examiner noted that McMurray's and Lachman's could not be tested. The examiner also noted that the right thigh was two inches less in girth than the left. The right calf was 1/2 inch less in girth than the left. As noted above, the examiner noted that no additional limited motion or joint function was inspected because there were no flare-ups. There was no ankylosis. No inflammatory arthritis, no swelling of peripheral joints. The examiner also indicated that a June 2005 private X-ray of the right knee revealed a well-placed total knee prosthesis without evidence of loosening. The Board has also observed May 2005 VA X-ray findings associated with the June 2005 VA examination, which contained impressions as follows: a suggestion of osteopenia; when comparing all views of the right knee, no definite plain film evidence of acute fracture or dislocation was seen; some bony spurring was seen; the subtle lucency adjacent to the periphery of the cement of the knee prosthesis was of questionable significance, if clinical suspicion for loosening bone scan correlation suggested; a few soft tissue calcifications in were in the knee; and there was a suggestion of a possible very small joint effusion. In June 2007, the Veteran underwent another VA examination. At that time, he reported pain when he stood for more than 10 to 15 minutes or when he walked more than 100 feet. He reported that there was no weakness, no stiffness, no swelling, no heat, no redness, no instability, no locking, and no fatigability. He also reported no periods of flare-ups and that he uses a cane as needed. He also reported that he gave up his job because he could not stand for very long. On physical examination, the June 2007 VA examiner noted that the Veteran was limping. The examiner also noted flexion to 90 or 92 degrees and that the Veteran had full extension. There was no further limitation of motion on repetitive testing. The examiner also noted that there was no effusion, no instability, no weakness, no tenderness, no redness or eat, no abnormal movement, no guarding, and no ankylosis. There were also no inflammatory signs. The Board has also considered VA outpatient treatment records including X-ray reports. An August 2005 VA outpatient treatment record confirmed that there had been no X-ray evidence of hardware failure. A March 2006 VA X-ray indicated no radiographic evidence of loosening. The radiologist compared the March 2006 X-ray with the May 2005 X-ray and determined that there had been no significant interval change. An April 2006 VA X-ray also confirmed no evidence of acute fracture or dislocation. The right knee did not appear to be significantly changed since the March 2006 study. The Board has also reviewed VA outpatient treatment records, including a September 2005 record which indicated that he experienced right knee pain rated at three out of 10. The same record indicated that the Veteran had right knee flexion to 100 degrees and had extension within normal limits. He also reported, at that time, that he did knee exercises and used a stationary bike at home every day. The Board has also reviewed private treatment records from Dr. L. A May 2006 private X-ray noted post-op arthrofibrosis in the right knee. Physical examination in May 2006 resulted in findings of no effusion, neutral alignment, full extension and flexion to 80 degrees. A June 2006 private treatment record indicated that the Veteran experienced a motor vehicle accident the day before. The Veteran also complained of pain in the right knee and the physician explained that he would always have chronic aches and pains with some limitation of motion in his replaced right knee. The physician indicated that they could improve his function with manipulation. An October 2006 private treatment record indicated that the Veteran received a cortisone shot in the right knee. The impression was postoperative stiffness in the right knee. The Veteran had full extension in the right knee as well as flexion to 85 degrees. A November 2006 private treatment record indicated that while under anesthesia for a procedure on his left knee, the Veteran's right knee was manipulated for arthrofibrosis. The private physician obtained zero to 115 degrees flexion. Another November 2006 private treatment record indicated range of motion to 95 degrees. A December 2006 private treatment record indicated full extension and flexion to 110 degrees. As the evidence does not reveal chronic residuals consisting of severe painful motion or weakness in the affected extremity, a higher rating is not warranted under DC 5055. Further, as neither ankylosis or nonunion or malunion of the tibia and fibula has been shown, an analogous rating is not warranted under DCs 5256 or 5262. Additionally, an analogous rating under DC 5260 is not for application as the Veteran is already rated at the highest schedular rating available under DC 5260. Lastly, a rating is not warranted under DC 5261 for limitation of extension as the evidence has not shown extension limited to 10 degrees, which would trigger the assignment of a combined rating of 40 percent if the criteria for a 30 percent rating under DC 5260 were shown. There is also no basis for assigning a higher 40 percent rating under DC 5261 because a loss of extension to 30 degrees has not been shown. Indeed, all of the treatment records and examination reports have shown full extension. The Board also finds that a higher (or separate ratings) for limitation of motion is not warranted in this case, even with consideration of any additional limitation of function due to factors such as pain, weakness, incoordination and fatigability. See 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Again, the Board emphasizes that at worst, the Veteran had flexion to 80 degrees, in May 2006. The Veteran has not reported flare-ups at anytime during the period on appeal. Thus, despite his mild limp and complaints of pain, the Board finds that the evidence does not show a limitation of motion that more nearly approximates the assignment of a separate compensable ratings based upon limitation of extension or flexion under Diagnostic Code 5260 or Diagnostic Code 5261, even with consideration of the DeLuca factors. The Board also observes that the Veteran's disability rating has been identified as DC 5257-5055. The Board finds that a higher schedular rating is not warranted under DC 5257 for instability as the Veteran is already rated at the highest schedular rating. Finally, the disability does not warrant referral for extraschedular consideration. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extraschedular rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extraschedular rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as governing norms. Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are present, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. For the period prior to January 2, 2008, there has been no showing that the Veteran's disability picture for his right knee disability could not be contemplated adequately by the applicable schedular rating criteria discussed above. The criteria provide for higher ratings, but as has been explained thoroughly herein, the currently assigned rating adequately describes the severity of the Veteran's symptoms for this disability during the periods of appeal. Given that the applicable schedular rating criteria are adequate, the Board need not consider whether the Veteran's right knee disability picture includes such exceptional factors as periods of hospitalization and interference with employment. Referral for consideration of the assignment of a disability rating on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111. b. Period from January 2, 2008 to March 29, 2009 As noted above, the Veteran's right knee disability was increased to 60 percent for the period from January 2, 2008 to March 29, 2009. The Board has considered all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board has found no section that provides a basis upon which to assign higher disability evaluation. As 60 percent rating is the maximum possible single schedular rating under DCs 5256-5262, a rating under any one of those diagnostic code provisions would not afford the Veteran a higher disability rating Further, separate awards would not result in any additional compensation to the Veteran. Under the "amputation rule" the combined rating for orthopedic disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed. 38 C.F.R. § 4.68. An amputation at the middle or lower thigh or at or above the knee level warrants a 60 percent rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5162-5164. As the Veteran was already in receipt of a 60 percent rating, additional compensation would be precluded under 38 C.F.R. § 4.68. In so finding, the Board clearly acknowledges that, while it would theoretically be possible to obtain a combined rating in excess of 60 percent, if the maximum rating for limitation of extension (50 percent under Diagnostic Code 5261) were combined with the maximum rating for limitation of flexion (30 percent under Diagnostic Code 5260) and the maximum rating for instability (30 percent under Diagnostic Code 5257); the amputation rule would preclude a rating in excess of 60 percent. Therefore, for the period from January 2, 2008 to March 29, 2009, the Veteran was in receipt of the maximum schedular rating for his right knee status post total arthroplasty. c. Period from May 1, 2010 As noted above, the Veteran underwent a second total right knee replacement on March 30, 2009 and his disability was rated as 100 percent disabling from that time until April 30, 2010. Even though the Veteran underwent the May 2009 VA compensation and pension occurred while he was in receipt of a 100 percent disability rating, the Board has considered the examination and noted the Veteran's complaints of severe daily pain and stiffness, as well as limited range of motion, including flexion to 65 degrees. The Board emphasizes that the Veteran has already been assigned a temporary total evaluation for the first year following the replacement. Following the expiration of that temporary total evaluation, his disability rating was reduced to 30 percent, the minimum rating under DC 5055. For the foregoing reasons, the Board finds that the Veteran's disability should be rated as 60 percent disabling, but no higher, under DC 5055. During the period since May 1, 2010, the Veteran underwent a VA examination in June 2010. At that time, the Veteran reported that he controls his pain with medication including hydrocodone (150 pills per month) and carisoprodol (90 pills per month), as well as treating his knee with ice. This is an increase from the 800 mg of Motrin he took for pain during the period prior to January 2008, where his disability was also rated at 30 percent. Additionally, at the Veteran underwent another VA examination in June 2010. At that time, he reported that he used a cane and wore a brace as needed to stabilize his knee. He reported that could complete the following activities of daily living: wash himself, dress himself, and transfer without assistance. He also reported that he could stand for 30 minutes and could walk on flat land with his cane for a quarter to a half mile without stopping. The maximum he could lift and carry on an occasional basis was 20 pounds. He was limited in his ability to squat. He also reported that he could not kneel or crawl and that he could climb one flight of stairs slowly, could not climb on ladders and had difficulty walking up steps. He reported that he can no longer bicycle but that he was able to walk although he felt unstable when he walked. However, there was no history of recent falls. He also complained of pain, stiffness, and recurrent swelling of his right knee. Physical examination at the June 2010 examination revealed that the Veteran walked with a noticeable limp, using a cane for support. He had difficulty walking on his toes and complained of increasing pain. There were no calluses on his feet. There was no uneven shoe wear. The Veteran completed only a third of a squat, limited by bilateral knee pain. The examiner found that the Veteran did not have ankylosis of the knee. Consistent with prior VA examinations, the girths of his thighs and calves were smaller on the right side than the left. There were no constitutional signs of inflammatory arthritis. Lastly, he reported that he had not had any incapacitating episodes requiring bed rest prescribed by a physician within the 12 months prior to the examination. Range of motion findings at the June 2010 VA examination included flexion to 60 degrees and full extension. There was no additional loss of motion on repetitive movement of the right knee. June 2010 VA X-rays revealed status post right knee arthroplasty was stable. Soft tissue swelling and effusion was noticed. Soft tissue density was noted along the posterior tibia from old joint which could be associated with joint effusion or popliteal cyst. Based on the marked decrease in the Veteran's range of motion (from in excess of 80 degrees to 60 degrees, severe painful motion (marked increase in the amount of pain medication he consumes), and increased weakness (manifested by his inability to use his stationary bicycle, climb stairs, squat, or walk more than short distances), the Board finds that the Veteran is entitled to a rating of 60 percent, but no higher, for chronic residuals of severe painful motion or weakness under DC 5055. See also 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). However, a schedular rating in excess of 60 percent rating would be precluded under 38 C.F.R. § 4.68 d. Other Considerations The Board has also considered the Veteran's statements regarding his right knee pain, weakness, limitation, and their effect on his daily activities during all periods on appeal. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (table); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, knee pathology is not the type of disorder that a lay person can provide competent evidence on the degree of severity. Thus, the Board finds that the Veteran's statements of severity lack probative value as he is not competent to evaluate the severity of his symptoms. Moreover, the Board acknowledges the Veteran's belief that his symptoms are of such severity as to warrant a higher rating; however, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. Therefore, the Board finds that the medical findings, which directly address the criteria under which the disabilities are evaluated, more probative than the Veteran's assessment of the severity of his disabilities. e. Scar The Board has also considered a separate rating for the Veteran's scar related to his original right knee arthroplasty in March 2004 and the revised right knee arthroplasty in March 2009. The June 2005 VA examiner noted that the Veteran had a well-healed 7 inch scar over the anterior aspect of his right knee related to his right knee replacement surgery, in addition to a 5 1/2 inch scar over the lateral aspect of the knee, and arthroscopic scars that were all well-healed, without swelling or tenderness. The June 2010 VA examiner noted a 9 inch mid-line surgical scar and a 4 1/2 inch lateral parapatellar incision. Private treatment records confirm the presence of well-healed scars on the right knee. Diagnostic Code 7801 (scars other than the head, face, or neck that are deep or that cause imitated motion) provides a 10 percent rating for scars that cover an area or areas exceeding 6 square inches (39 sq. cm.); a 20 percent rating for scars that cover an area or areas 12 square inches (77 sq. cm.); a 30 percent rating for scars that cover an area or areas exceeding 72 square inches (465 sq. cm.); and a 40 percent rating for scars that cover an area or areas exceeding 144 square inches (929 sq.cm.). Note (1) provides that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with Sec.4.25 of this part. Note (2) provides that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118 (effective August 30, 2002). Diagnostic Code 7802 (scars other than the head, face, or neck that are superficial and do not cause imitated motion) provides a 10 percent rating for scars that cover an area or areas exceeding 144 square inches (929 sq. cm.) or greater. Note (1) provides that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with Sec.4.25 of this part. Note (2) provides that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118 (effective August 30, 2002). Diagnostic Code 7803 (scars that are superficial and unstable) provides a 10 percent rating for scars that are superficial and unstable. Note (1) provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118 (effective August 30, 2002). Diagnostic Code 7804 (scars that are superficial and painful on examination) provides a 10 percent rating for scars that are superficial and painful on examination. Note (1) provides that a superficial scar is one not associated with underlying soft tissue damage. Note (2) provides that, in this case, a 10-percent evaluation will be assigned for a scar on the tip of a finger or toe even though amputation of the part would not warrant a compensable evaluation. 38 C.F.R. § 4.118 (effective August 30, 2002). Diagnostic Code 7805 (other scars) will be rated on the basis of limitation of function. 38 C.F.R. § 4.118 (effective August 30, 2002). A separate rating is not warranted for the Veteran's scars as the criteria described in DCs 7801, 7802, 7803, 7804, and 7805 have not been shown. Specifically, the June 2005 VA examiner noted that the Veteran's scar was nontender and notably, the June 2010 VA examiner only described the scars as well-healed. At no time did any of the VA treatment records, private treatment records, or VA examination reports indicate that there was any limitation of motion due to the scar, that the scar was superficial and unstable, or that it covered an area or areas exceeding 144 square inches. ORDER A rating in excess of 30 percent for the right knee, status post total knee arthroplasty for the period prior to January 2, 2008, is denied. A schedular rating in excess of 60 percent for the right knee, status post total knee arthroplasty for the period from January 2, 2008 to March 29, 2009, is denied. A schedular rating of 60 percent, but no higher, for the right knee, status post total knee arthroplasty for the period from May 1, 2010, is granted subject to the law and regulations governing the award of monetary benefits. REMAND While the increased rating claims listed above have been on appeal, the Court held that a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, the issue was properly before the Board by virtue of his increased-rating claims pursuant to Rice. In fact, the Veteran reported during the February 2008 hearing before the Board that he was unemployable due to his right knee. Accordingly, as Rice had not yet been decided at the time of the April 2008 Remand, the Board referred the issue of entitlement to TDIU to the RO for further development rather than remanding the issue of entitlement to TDIU as part and parcel of the increased rating claims. The RO developed the claim and, in March 2010, determined that a TDIU was not warranted. Total disability ratings for compensation purposes may be assigned when the schedular rating for service-connected disabilities is less than 100 percent, when it is found that those disabilities are sufficient to produce unemployability without regard to advancing age. If unemployability is the result of a single service-connected disability, that disability must be rated at 60 percent or more. If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more. For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a). Here, the RO essentially determined that the Veteran did not meet the schedular requirements for a TDIU as per 38 C.F.R. § 4.16(a). The Veteran is now in receipt of a 60 percent rating for his right knee disability. He therefore meets the requirement of 4.16(a). However, the June 2010 VA examination failed to adequately address the question of whether the right knee disability precluded employment. The examiner merely noted that the Veteran reported that he had not returned to work because of his knee. A new examination is needed. Further, although the Veteran is in receipt of the maximum schedular rating for his service-connected disability, the Board must still consider whether the matter should be referred to the Under Secretary for Benefits for consideration of an extra-schedular evaluation. See Smallwood v. Brown, 10 Vet. App. 93, 97-98 (1997) (requiring the Board to consider whether referral for an extra-schedular rating was warranted when Veteran was in receipt of the maximum combined schedular evaluation possible pursuant to the amputation rule of 38 C.F.R. § 4.68). Such a finding should be made after the examination is conducted. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a VA examination with opinion to determine whether he is unemployable solely due to his service-connected right knee disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should be requested to review all pertinent records associated with the claims file and to comment on the effect of the Veteran's service-connected disability on his ability to engage in any type of full-time employment and whether, in the examiner's opinion, the service-connected right knee disability alone is of such severity to result in unemployability. Findings should also be made as to whether the Veteran's right knee disability has resulted in frequent hospitalizations or marked interference with employment. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important 'that each disability be viewed in relation to its history[,]' 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. The examiner should explain the rationale for any opinion given regarding the effect of the Veteran's service-connected conditions on his ability to obtain or maintain employment, to include discussion of obstacles and challenges he might face, and his capability for performing sedentary employment in light of his past employment experience. The examiner should note that consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. 2. Upon completion of the above, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs