Citation Nr: 1237142 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 09-23 035 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an increased disability rating for a right knee disorder, rated as 10 percent disabling for the period prior to April 30, 2009; at 10 percent disabling from June 1, 2009 to September 12, 2010; at 30 percent from September 13, 2010 to November 23, 2010 and at 30 percent disabling beginning on January 1, 2011. 2. Entitlement to a disability rating in excess of 30 percent for a right knee disorder, status-post total knee arthroplasty, beginning on May 17, 2012. 3. Entitlement to an increased rating for a left knee disorder, rated as 10 percent disabling for the period prior to September 16, 2008 and at 10 percent disabling beginning on November 1, 2008. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from July 1974 to November 1977 and from June 1986 to June 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina which denied the Veteran's claims for an increased rating for his bilateral knee disabilities. A June 2009 Decision Review Officer (DRO) decision assigned a temporary total evaluation based upon convalescence for the Veteran's left knee disability for the period between September 16, 2008 and October 31, 2008 pursuant to 38 C.F.R. § 4.30 (2011); a 10 percent rating was assigned as of November 1, 2008. A March 2010 DRO decision assigned a temporary total evaluation based upon convalescence under the provisions of 38 C.F.R. § 4.30 (2011) for the Veteran's right knee disability for the period between April 30, 2009 and May 31, 2009; a 10 percent rating was assigned as of June 1, 2009. An October 2010 supplemental statement of the case (SSOC) assigned a 30 percent rating for this right knee disability, effective September 13, 2010. In April 2010, the Veteran's former representative, the North Carolina Division of Veterans Affairs, withdrew their Power of Attorney (POA). A new POA election form has not been received. The Veteran testified before a DRO at a June 2010 hearing. A hearing transcript has been associated with the claims file. A review of the Virtual VA paperless claims processing system reveals documents pertinent to the claims on appeal, namely a February 2012 VA examination. Subsequent to the issuance of the July 2011 SSOC, additional evidence pertinent to the claims on appeal was submitted. The Veteran waived RO consideration of this evidence in May 2012. See 38 C.F.R. § 20.1304 (2011). The issues of entitlement to an increased rating for a right knee disorder, status-post total knee arthroplasty and an increased rating for a left knee disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. For the period prior to April 30, 2009, the Veteran's right knee disorder manifested as flexion that was limited to 120 degrees and extension that was limited to five degrees, at worst, as well as subjective reports of pain and giving way; the record was negative for frequent episodes of locking or effusion, recurrent subluxation, lateral instability, ankylosis, impairment of the tibia and fibula or additional limitation of motion on repetitive testing. 2. For the period from June 1, 2009 to September 12, 2010, the Veteran's right knee disorder manifested as flexion that was limited to 110 degrees and extension that was limited to five degree, at worst, as well as subjective reports of pain and giving way; the record was negative for frequent episodes of locking or effusion, recurrent subluxation, lateral instability, ankylosis, impairment of the tibia and fibula or additional limitation of motion on repetitive testing. 3. For the period from September 13, 2010 to November 23, 2011 and from January 1, 2011 to May 17, 2011, the Veteran's right knee disorder manifested as flexion that was limited to 80 degrees and extension that was limited to 20 degrees, at worst, as well as subjective reports of pain and giving way; the record was negative for recurrent subluxation, lateral instability, ankylosis, impairment of the tibia and fibula or additional limitation of motion on repetitive testing. 4. The Veteran underwent a total right knee arthroplasty on May 17, 2011. CONCLUSIONS OF LAW 1. The criteria for an increased rating for right knee disorder prior to May 17, 2011 have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.1-4.10, 4.20, 4.27, 4.71, 4.71a, 5256-5262 (2011). 2. The criteria for a total rating for a right knee disorder, status-post total knee arthroplasty for the period between May 17, 2011 and May 12, 2012 have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.1-4.10, 4.20, 4.27, 4.71, 4.71a, 5055 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2011). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). For claims pending before VA on or after May 30, 2008, 38 C.F.R. 3.159 was amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). The United States Court for Veterans Appeals (Veteran's Court or Court) had held that at a minimum, adequate VCAA notice in an increased rating claim required that VA notify the claimant that, to substantiate such a 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. Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008). The Federal Circuit vacated the Court's decision, overturning the requirement that VA provide notice that the claim could be substantiated by evidence of a disability's impact on daily life and that VA provide notice with regard to potential diagnostic code criteria (element 2). Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The generic first, third, and fourth elements (contained in the Veteran's Court's decision) were not disturbed by the Federal Circuit's decision. The Veteran was provided with VCAA notice in a February 2008 letter with regards to the instant claim for an increased rating for his bilateral knee chondromalacia. This letter provided notice as to what evidence was required to substantiate his claims. This letter informed him of what evidence VA would obtain, of what evidence he was expected to provide, and of what assistance the VA could provide the Veteran in obtaining evidence from other agencies. The February 2008 preadjudication letter notified the Veteran that medical or lay evidence could be submitted to substantiate his claim for an increased rating and provided specific examples. This letter stated that such evidence should describe the manner in which the Veteran's disability symptoms had affected him. It also notified the Veteran that he may submit statements from his employers. A December 2008 provided notice regarding remaining elements outlined in Vazquez-Flores I, after the initial adjudication of the Veteran's claim. The timing deficiency with regard to this December 2008 letter was cured by the readjudication of his claims in an June 2009 SOC. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran has not alleged suffering any prejudice from this notice deficiency and any VCAA notice error in regard to the Veteran's claims are therefore deemed harmless and does not preclude appellate consideration. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (holding that a party alleging defective notice has the burden of showing how the defective notice was harmful). The VCAA requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. §5103A; 38 C.F.R. §3.159(c)(d). VA will help a claimant obtain records relevant to his claim(s), whether or not the records are in Federal custody, and that VA will provide a medical examination and/or opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has met the duty to assist the Veteran in the development of the instant claim. The evidence of record includes the service treatment records, VA treatment records and the VA examination reports. During a June 2010 DRO hearing, the Veteran testified that he received all of his treatment at VA. The Board notes that the March 2008 VA examiner did not indicate a review of the Veteran's claims file, however, an examination is not rendered inadequate merely because a veterans claims file was not reviewed. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008). Thus, there is no indication that there is any additional relevant evidence to be obtained by either VA or the Veteran. Therefore, the Board determines that VA has made reasonable efforts to the assist the Veteran in obtaining the evidence necessary to substantiate his claim for increase. Legal Criteria Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by a veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. Limitation of leg flexion that is limited to 45 degrees warrants a 10 percent rating, limited to 30 degrees warrants a 20 percent rating while limitation to 15 degrees is rated as a maximum 30 percent disabling. 38 C.F.R. § 4.71a, 5260. The Veteran's right knee disability is rated under the diagnostic code for limitation of motion. Limitation of leg extension warrants a 10 percent rating when limited to 10 degrees, a 20 percent rating when limited to 15 degrees, a 30 percent rating when limited to 20 degrees, a 40 percent rating when limited to 30 degrees and a maximum 50 percent rating when limited to 45 degrees. 38 C.F.R. § 4.71a, 5261. For rating purposes, normal range of motion in a knee joint is zero degrees of extension and 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40 and 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. The VA General Counsel has held that separate ratings could also be provided for limitation of knee extension and flexion. VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). Knee ankylosis at favorable degree in full extension or in slight flexion between zero degrees and 10 degrees warrants a 30 percent rating. Knee ankylosis in flexion between 10 and 20 degrees warrants a 40 percent rating while such ankylosis in flexion between 20 and 45 degrees warrants a 50 percent rating. Extremely unfavorable knee ankylosis in flexion at an angle of 45 degrees or more warrants a 60 percent rating. 38 C.F.R. § 4.71a, 5256. Semilunar, dislocated cartilage with frequent episodes of "locking," pain and effusion into the joint warrants a maximum 20 percent rating. 38 C.F.R. § 4.71a, 5258. The removal of symptomatic semilunar cartilage warrants 10 percent rating. 38 C.F.R. § 4.71a, 5259. Malunion of the tibia and fibula with a slight knee disability warrants a 10 percent rating, such malunion with a moderate knee disability warrants a 20 percent rating and such malunion with a marked knee disability warrants a 30 percent rating. Nonunion of the tibia and fibula with loose motion that requires a brace warrants a maximum 40 percent rating. 38 C.F.R. § 4.71a, 5262. Knee impairment with recurrent subluxation (partial dislocation) or lateral instability warrants a 10 percent rating if it slight, 20 percent rating if it is moderate or a maximum 30 percent rating if it is severe. 38 C.F.R. § 4.71a, 5257. Knee replacements warrant a 100 percent rating for one year following implantation of the prosthesis. Following this one-year period, the minimum rating is 30 percent. A 60 percent rating is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. Intermediate degrees of residuals weakness, pain, or limitation of motion are rated by analogy to diagnostic codes 5256, 5261, or 5262. 38 C.F.R. § 4.71, 5055. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Factual Background The Veteran was awarded service connection for a right knee disorder in a February 1988 rating decision. A January 2008 VA bilateral knee X-ray revealed mild bilateral medial compartment joint space narrowing and a single loose body within both knees, with the left larger than the right. A March 2008 VA examination reflected the Veteran's reports of bilateral knee pain, with his left knee worse than the right knee, that was increased with standing or walking. Episodes of dislocation, subluxation or locking were denied. He treated his symptoms with Motrin. Physical examination found a bony joint enlargement, deformity, tenderness and painful movement and was negative for masses behind the knee, clicks or snaps, grinding, instability, patellar abnormalities or meniscus abnormalities bilaterally. Right knee flexion was from zero degrees to 135 degrees, with pain beginning at 120 degrees, and extension was to zero degrees. There was also no additional limitation of motion on repetitive testing. An accompanying knee X-ray showed degenerative changes and chondromalacia bilaterally. Following this examination, a diagnosis of degenerative joint disease with chondromalacia patellae bilaterally was made. A December 2008 VA physical therapy treatment note reflected the Veteran's reports of bilateral mechanical symptoms of the knees with recent pain. Physical examination revealed medial joint line tenderness on palpation as well as "some" lateral tenderness. Gait was mildly antalgic and he was unable to squat. Right knee flexion was to 120 degrees while extension lacked five degrees. Lachman's test, McMurray's test, anterior drawer sign, posterior drawer sign and pivot/reverse pivot shift were negative. Patellar grind, glide, crepitus and tilt were negative. A January 2009 VA treatment note reflected the Veteran's reports of constant right knee pain and giving way that resulted in near falls. There was also anterior knee pain with terminal knee extension. A small hinged, wrap-around knee brace was supplied. An April 15, 2009 VA orthopedic surgery treatment note indicated that there was tenderness along the medial joint line of the right knee. Range of motion was from zero degrees and 130 degrees with patellar grind. McMurray's test was painful. He subsequently underwent a right knee arthroscopy and medial meniscus debridement. A May 2009 VA treatment note indicated that there was a notable soft tissue swelling/mass over the tibial tubercle that was mobile in the right knee. There was minimal swelling and medial joint line tenderness. Range of motion was from five degrees to 95 degrees. A June 1, 2009 VA treatment note reflected the Veteran's reports of some occasional right knee instability when he walked. There was a palpable soft, movable mass with minimal pain on deep palpation on examination. Range of motion was from zero degrees to 130 degrees without effusion, retropatellar crepitus or patellar apprehension. In a June 2009 substantive appeal, the Veteran wrote that he was wearing two knee braces and that his knees still gave way. A September 2, 2009 VA treatment note reflected the Veteran's reports of bilateral knee pain, with the right worse than the left, and a sharp/stabbing pain along the medial joint line and underneath the patella. This pain was worse with knee flexion and he reported that knee extension "caused him to nearly pass out." The knee binded up but there was no true locking. Physical examination found the bilateral knees to be tender to palpation at the medial joint line without effusion. The knees were stable to varus/valgus stress and there was patellar grind and patellar apprehension. Right knee range of motion was from five degrees to 110 degrees, with pain beginning at 85 degrees. A February 2010 VA orthopedic treatment note contained an assessment of osteoarthritis in the bilateral knees and an extra-articular loose body in the right tibial tubercle region. During a June 2010 DRO hearing, the Veteran testified that he had undergone multiple surgeries for his knees and that he would be undergoing a total knee replacement. He wore a knee brace everyday and used Tylenol to ease his pain. His had sudden sharp pain in his knees. His knee also gave out when he was walking, getting out of the car or using the stairs. A September 13, 2010 VA treatment note reflected the Veteran's reports of long-standing bilateral knee pain, with the right worse than the left, and giving way. Physical examination found right knee range of motion to be from 20 degrees to 80 degrees "before pain." There was exquisite tenderness to palpation over the medial joint line. Accompanying X-rays found no degenerative joint disease bilaterally. A January 2011 VA treatment note indicated that the Veteran's right knee range of motion was from zero degrees to 115 degrees with pain. A second January 2011 VA treatment note indicated his right knee range of motion was from zero degrees to 70 degrees with pain. The Veteran underwent a total right knee replacement on May 17, 2011. Right Knee Claim For the period prior to April 30, 2009, and considering the Veteran's subjective complaints of right knee pain and other symptoms, the evidence of record shows that right knee extension was to five degrees, at worst. Flexion was found to be to 120 degrees, at worst, on several occasions. Although a March 2008 VA treatment note found that there was pain beginning at 120 degrees on flexion, no additional limitation of motion was found and such motion continued to 135 degrees. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (pain that resulted in additional functional impairment may warrant a higher rating). While the Veteran's right knee motion, in degrees, is not to a level to warrant a 10 percent rating under the rating criteria, the record also reflects the Veteran's reports of pain. These reports by the Veteran, which the Board finds to be both competent and credible, would presumably account for some additional functional impairment on repetitive use the right knee. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Deluca, supra. These reports are not sufficient to warrant a rating higher than 10 percent based upon limitation of motion in the right knee for the period prior to April 30, 2009. See 38 C.F.R. § 4.71a, 5260-5261. For the period between June 1, 2009 and September 12, 2010, the evidence of record demonstrates the Veteran's continued complaints of right knee pain that was severe at times. Flexion was found to be to 110 degrees and extension was to five degrees, both at worst, in a September 2009 VA treatment note. Although the September 2009 VA treatment note found that there was pain beginning at 85 degrees of flexion, no additional limitation of motion was found. See Mitchell, supra. As with the prior period, the Veteran's right knee motion, in degrees, is not to a level to warrant a 10 percent rating under the rating criteria. However, and in consideration of the Veteran's competent and credible reports of pain and other symptoms, some additional functional impairment on repetitive use the right knee could be presumed. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Deluca, supra. These reports are not sufficient to warrant a rating higher than 10 percent based upon limitation of motion in the right knee for the period between June 1, 2009 and September 12, 2010. See 38 C.F.R. § 4.71a, 5260-5261. For the period between September 13, 2010 to November 2011 and from January 1, 2011 to May 17, 2011, the evidence of record documents the Veteran's continued complaints of right knee pain. Flexion was found to be to 70 degrees, at worst, in a January 2011 VA treatment note and extension was found to be to 20 degrees, at worst, in a September 13, 2010 VA treatment note. Such limitation of extension warrants a 30 percent rating. Although the January 2011 VA treatment notes found that there was pain on range of motion, no additional limitation of motion was found. See Mitchell, supra. A rating in excess of 30 percent for limitation of extension is not warranted as the record does not establish that it was limited to 30 degrees for this period. See 38 C.F.R. § 4.71a, 5260-5261. In addition, the Board notes that 30 percent is the highest schedular rating for limitation of flexion. The Veteran has generally reported knee instability in that his knee gave way. The clinical evidence does demonstrate that the Veteran wore knee braces. However, objective evidence of instability was not found on physical examination, as anterior/posterior drawer signs, McMurray's tests and Lachman's tests were consistently negative. His knee were also found to be stable on vagus-valgus stress. Although the April 2009 VA treatment note indicated that the McMurray's test was "painful," there is no indication that there was instability present. A separate rating for recurrent subluxation or lateral instability is therefore not warranted for the right knee. See 38 C.F.R. § 4.71a, 5257. The clinical evidence has demonstrated that the Veteran retained a significant amount of knee motion and the clinical evidence have consistently been negative for ankylosis. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992) (indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable). The Veteran has not alleged, and the clinical evidence has not established, nonunion of the tibia and fibula or frequent episodes of locking or effusion. A higher rating is therefore not warranted for the right knee on that basis for any period prior to May 17, 2011. 38 C.F.R. § 4.71a, 5256-5262. The record establishes that the Veteran underwent a total knee arthroplasty on May 17, 2011. The rating criteria for knee replacements provided that a total rating is warranted for one year following implantation of the prosthesis. It does not appear from the evidence of record that the Veteran has been granted this total rating following his right knee replacement. A 100 percent rating is therefore warranted for the period between May 17, 2011 and May 17, 2012. 38 C.F.R. § 4.71a, 5055. Extraschedular Consideration Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(1)(b). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular consideration when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the Rating Schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step--a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. The Veteran's right knee disability manifested as limited motion and subjective complaints of pain, as described above, for the period prior to May 17, 2011. He underwent a total knee arthroplasty on May 17, 2011. These factors are contemplated by the rating criteria. There have been no reported factors outside the rating schedule. The Veteran has not alleged, and the evidence has not shown, marked interference with employment outside of the periods in which he was recovering from his various knee surgeries. The Board also notes that the Veteran had been awarded a temporary total rating based upon convalescence for these periods. Hence, referral for consideration of an extraschedular rating is not warranted. Moreover, as evidence by the record, the Veteran is currently employed as a hotel manager and has maintained full-time employment during the course of this appeal; as such, consideration of a total disability rating based on individual unemployability due to service connected disabilities (TDIU), under 38 C.F.R. § 4.16(a)-(b), is not warranted. See Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009) (TDIU is a part of an increased rating or initial rating only when there is evidence of unemployability). ORDER An increased disability rating for a right knee disorder prior to May 17, 2011 is denied. Entitlement to a total rating for the period between May 17, 2011 and May 17, 2012 for a right knee disorder, status-post total knee arthroplasty, is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND As detailed above, the Veteran underwent a total right knee arthroplasty on May 17, 2011. The Board has granted him a total rating for a one year period following this surgery. It does not appear that a new VA orthopedic examination addressing the Veteran's right knee has been conducted since the expiration of that convalescence period. A veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). In addition, a remand will allow the AOJ to consider the Veteran's right knee disorder under the rating criteria for a knee replacement for the period following the implantation of a prosthesis. 38 C.F.R. § 4.71a, 5055. In a February 2012 Disability Benefits Questionnaire (DBQ), the examiner noted that the Veteran had undergone a left knee meniscectomy in 2010. The clinical evidence, however, establishes that he underwent a right knee arthroplasty with chondroplasty and partial medial meniscectomy on November 24, 2010. The current clinical evidence of record does not document a left knee meniscectomy in 2010. It is not clear whether the February 2012 examiner identified the incorrect knee or records reflecting a left knee meniscectomy are missing from the claims file. In addition, the Veteran has indicated on multiple occasions that he was to undergo a left knee total knee arthroplasty but the current record does not indicate that such a surgery has actually been conducted. A new VA examination is therefore required to determine whether the Veteran underwent a left knee meniscectomy and the current severity of his knee disorder, including whether he has undergone a total left knee replacement. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should afford the Veteran a VA orthopedic examination to determine the nature and severity of his service connected bilateral knee disorders. The examiner should review the claims file and note such a review in the examination report or in an addendum. All appropriate tests (to include x-rays, as necessary) and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should note the ranges of motion for both knees. Whether there is any pain, weakened movement, excess fatigability or incoordination on movement should be noted, and whether there is likely to be additional range of motion loss due to any of the following should be addressed: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner is asked to describe whether pain significantly limits functional ability during flare-ups or when either knee is used repeatedly. All limitation of function must be identified. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. In addition, the examiner should note whether the Veteran has any instability or recurrent subluxation of either knee. Further, the examiner should note whether the Veteran has any dislocated cartilage with frequent episodes of "locking," pain, and effusion into the joint. With regard to the right knee, the examiner should specifically note whether the Veteran has chronic residuals including severe painful motion or weakness. With regard to the left knee, the examiner should specifically note whether the Veteran had undergone a meniscectomy in 2010 and whether he had undergone a total knee arthroplasty. 2. The RO/AMC should review the examination report(s) to ensure that it (they) contain all information and opinions requested in this remand. 3. Following completion of the above and any additional development deemed warranted, the issues on appeal should again be re-adjudicate. The RO/AMC should also consider whether the Veteran's right knee disorder, status-post total knee arthroplasty warrants a rating under the provisions of 38 C.F.R. § 4.71a, 5055. If these appeals are not fully granted, the Veteran and his representative should be furnished a supplemental statement of the case, before returning the case to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters 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. 2011). ____________________________________________ APRIL MADDOX Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs