Citation Nr: 1302194	
Decision Date: 01/18/13    Archive Date: 01/23/13

DOCKET NO.  09-03 480	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania



THE ISSUE

Entitlement to an initial disability rating in excess of 30 percent for a status-post left knee replacement.



REPRESENTATION

Appellant represented by:	National Association of County Veterans Service Officers



ATTORNEY FOR THE BOARD

J. Smith, Counsel


INTRODUCTION

The Veteran served on active duty from July 1960 to July 1963.
      
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in Philadelphia, Pennsylvania.

In September 2011, the Board remanded the case for additional development.  That development has been completed, and the case has since been returned for appellate review.

The Board notes that, at the time of the Board's September 2011 remand, the issue of entitlement to service connection for a right knee disorder was also in appellate status.  However, that claim was subsequently granted in an October 2012 rating decision.  As such, it is no longer in appellate status, and no further consideration is necessary.  See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997).

The Board has considered documentation included in the Virtual VA system in reaching the determinations below.  No new records pertinent to this appeal were found therein.



FINDING OF FACT

Since March 1, 2008, the Veteran's service-connected left knee disability, status post right knee replacement, has been manifested by chronic residuals consisting of severe painful motion or severe weakness of the left knee joint.




CONCLUSION OF LAW

The criteria for an initial evaluation of 60 percent, but no higher, for residuals of a total left knee replacement have been met since March 1, 2008.  38 U.S.C.A. § 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1- 4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5055 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Notice and Assistance

Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159(b) (2006); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2006); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). 

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a)  and 38 C.F.R. § 3.159(b)  require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 

With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration.  Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation.  However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

Nevertheless, the Veteran in this case is challenging the initial evaluation assigned following the grant of service connection for a left knee disability.  In Dingess, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. See also VAOPGCPREC 8- 2003 (December 22, 2003).  Thus, VA's duty to notify has been satisfied with respect to the issues of entitlement to a higher initial evaluation for his service-connected left knee disability. 

VA also has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

Here, the Board finds that all relevant facts have been properly developed and that all evidence necessary for equitable resolution of the issue has been obtained.  His service treatment records and post-service treatment records have been obtained.  Attempts were made to obtain his records from the Social Security Administration, but a June 2009 response from that agency indicated that no records exist.  VA's duty in this regard is thus satisfied.  38 U.S.C. § 5103A(b)(3) (requiring that VA continue any attempts to get federal records "until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile.").  The Veteran has not identified any available, outstanding records that are pertinent to the claim being decided herein.  He was also offered the opportunity for a personal hearing.  

In addition, the Veteran has been afforded multiple VA examinations in connection with his current claim.  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the VA examinations obtained in this case are adequate, as they are predicated on a review of the claims file and all pertinent evidence of record as well as on an examination, and fully address the rating criteria that are relevant to rating the disability in this case. 

Moreover, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disabilities since he was last examined. 38 C.F.R. § 3.327(a).  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11- 95. 

Thus, there is adequate medical evidence of record to make a determination in this case.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion regarding the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). 

The Board is further satisfied that the RO has substantially complied with its September 2011 remand directives.  Stegall v. West, 11 Vet. App. 268, 271 (1998). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required).  As directed by the Board, the AOJ provided a VA examination for his left knee disability.  See 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4).

For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim.  Therefore, no further assistance to the Veteran with the development of evidence is required.  


Law and Analysis

Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity in civil occupations.  See 38 U.S.C.A. § 1155.  Separate diagnostic codes identify the various disabilities.  The assignment of a particular diagnostic code is dependent on the facts of a particular case.  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology.  In reviewing the claim for a higher rating, the Board must consider which diagnostic code or codes are most appropriate for application in the Veteran's case and provide an explanation for the conclusion.  See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995).  
 
In the November 2008 rating decision on appeal, the RO granted service connection for status-post left knee replacement and assigned a temporary 100 percent rating effective from October 26, 2007, which was the date of claim.  Pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5055, a 30 percent evaluation was assigned effective from March 1, 2008.  

The Veteran expressed his timely disagreement with the rating assigned and the present appeal ensued.  Given that the Veteran appealed the initial evaluation assigned, the severity of his disability is to be considered during the entire period from the initial assignment of the disability rating to the present.  Fenderson v. West, 12 Vet. App. 119 (1999).  The relevant time period for consideration in a claim for an increased initial disability rating is the period beginning on the date that the claim for service connection was filed.  Moore v. Nicholson, 21 Vet. App. 211, 216-17 (2007).  In this case, however, the Board notes that evidence dated prior to March 1, 2008, will not be considered in adjudicating the claim since the Veteran was already receiving the maximum evaluation possible for that time period.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements.  In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. § 4.40.  Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities.  38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint.  38 C.F.R. § 4.59.

VA Office of General Counsel has provided guidance concerning increased rating claims for knee disorders.  Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition.  See Esteban v. Brown, 6 Vet. App. 259, 262 (1994).  VA General Counsel has stated that compensating a claimant for separate functional impairment under Diagnostic Code 5257 and 5003 does not constitute pyramiding.  See VAOPGCPREC 23-97 (July 1, 1997).

VA General Counsel held in VAOPGCPREC 23-97 that a Veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, provided that a separate rating must be based upon additional disability. When a knee disorder is already rated under Diagnostic Code 5257, the Veteran must also have limitation of motion under Diagnostic Code 5260 or 5261 in order to obtain a separate rating for arthritis.  If the Veteran does not at least meet the criteria for a zero percent rating under either of those codes, there is no additional disability for which a rating may be assigned.

In VAOPGCPREC 9-98, General Counsel also held that if a Veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also X-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59.  In addition, General Counsel considered a hypothetical situation in which a knee disability was evaluated under Diagnostic Code 5259 that was productive of pain, tenderness, friction, osteoarthritis established by x-rays, and a slight loss of motion.  For the purposes of the hypothetical, it was assumed that Diagnostic Code 5259 did not involve limitation of motion.  Given the findings of osteoarthritis, the General Counsel stated that the availability of a separate evaluation under Diagnostic Code 5003 in light of sections 4.40, 4.45, 4.59 must be considered.  See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991).  Absent x-ray findings of arthritis, limitation of motion should be considered under Diagnostic Codes 5260 and 5261.  The claimant's painful motion may add to the actual limitation of motion so as to warrant a rating under Diagnostic Codes 5260 or 5261.

The General Counsel further noted in VAOPGCPREC 9-98 that the removal of the semilunar cartilage may involve restriction of movement caused by tears and displacements of the menisci, but that the procedure may result in complications such as reflex sympathetic dystrophy, which can produce loss of motion.  Therefore, limitation of motion is a relevant consideration under Diagnostic Code 5259, and the provisions of 4.40, 4.45, and 4.59 must be considered.

In addition, the VA General Counsel has held that separate ratings may be assigned under DC 5260 and DC 5261 for disability of the same joint.  VAOPGCPREC 9-2004 (September 17, 2004).  Diagnostic Code 5010 states that traumatic arthritis is to be rated as degenerative arthritis under Diagnostic Code 5003, which in turn, states that the severity of degenerative arthritis, established by X-ray findings, is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints affected which in this case would be Diagnostic Codes 5260 (limitation of flexion of the leg) and 5261 (limitation of extension of the leg).  When there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation-of- motion code, a 10 percent rating will be assigned for each affected major joint or group of minor joints.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  In the absence of limitation of motion, a 10 percent evaluation is warranted if there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and there are occasional incapacitating exacerbations.  38 C.F.R. § 4.71a, Diagnostic Code 5003.

Under Diagnostic Code 5260, a noncompensable evaluation is contemplated for flexion limited to 60 degrees.  A 10 percent disability evaluation is assigned when flexion is limited to 45 degrees, and a 20 percent disability evaluation is warranted when flexion is limited to 30 degrees.  A 30 percent disability evaluation is assigned when flexion is limited to 15 degrees, which is the maximum evaluation available under Diagnostic Code 5260.

Under Diagnostic Code 5261, a noncompensable evaluation is assigned for extension limited to 5 degrees, and a 10 percent disability evaluation is contemplated for extension limited to 10 degrees.  When there is limitation of extension to 15 degrees, a 20 percent disability evaluation is warranted.  A 30 percent rating will be assigned for extension limited to 20 degrees, and a 40 percent rating is contemplated for limitation of extension to 30 degrees.  A 50 percent disability evaluation is warranted for extension limited to 45 degrees.

Under Diagnostic Code 5055, a 100 percent disability evaluation is assigned for one year following the implantation of the prosthesis.  Thereafter, a 30 percent disability evaluation is the minimum rating assigned for left knee prosthesis, and a 60 percent disability evaluation is contemplated for prosthetic replacement of a knee joint with chronic residuals consisting of severe painful motion or weakness in the affected extremity.  The affected knee may also be evaluated on the basis of intermediate degrees of residual weakness, pain, or limitation of motion by analogy to Diagnostic Codes 5256, 5261, or 5262.

Under Diagnostic Code 5256, a 30 percent disability evaluation is contemplated for ankylosis of the knee at a favorable angle in full flexion or in slight flexion between zero degrees and 10 degrees.  A 40 percent disability evaluation is warranted for ankylosis of the knee in flexion between 10 and 20 degrees.  A 50 percent disability evaluation is assigned when there is ankylosis of the knee in flexion between 20 and 45 degrees.

Under Diagnostic Code 5262, a 30 percent disability evaluation is contemplated for malunion of the tibia and fibula with marked knee or ankle disability.  A 40 percent evaluation is assigned for nonunion of the tibia and fibula with loose motion requiring a brace.

Considering the evidence of record in light of the above-noted criteria, and resolving all reasonable doubt in the Veteran's favor, the Board finds that a 60 percent rating, but no higher, for the Veteran's left knee disability is warranted since March 1, 2008, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5055.

On VA examination in October 2008, the Veteran recounted his history of sustaining a left leg injury during a parachute accident in 1961.  He reported having a history of numerous surgical procedures to the left leg, including a total left knee replacement in 2007.  On examination, the Veteran's gait was slow and antalgic, and he could not perform heel, toe, and tandem gait.  There was joint line tenderness in both knees.  The examination also revealed a scar 8.5 inches in length and 1/8 inch wide along the medial left knee.  The scar was well-healed without keloid formation, ulceration, or tenderness, and there was no deep adherence to underlying tissues.

In a December 2008 private medical report, the Veteran's private orthopedic surgeon noted that he was undergoing care for degenerative joint disease of both knees following a total knee replacement.  The physician noted that, despite the total knee replacement, the Veteran still had residual pain, swelling, and limitations of activity.  The physician noted that chronic medication management was required, which included 75 milligrams of Voltaren, 50 milligrams of Tramadol every 4-6 hours as needed, and 400 milligrams of Nerotonin daily.  The physician stated that the medications are medically necessary and are anticipated to be required on a chronic lifetime basis.

In February 2009, a VA physician noted that the Veteran continued to suffer with knee pain, even after joint replacement.

In June 2009, the Veteran reported having constant pain the knee ranging from 2/10 at best to 8/10 at worst.

On VA examination in August 2009, the Veteran reported that his pain was poorly responsive to treatment and that he had swelling of the knees.  On examination, he was found to have pain at the end of his range of motion.  He had joint line tenderness in both knees.  He had a slow, antalgic gait, and he could not perform heel, toe, and tandem gait due to pain.  The examiner further noted the presence of a scar measuring 8.5 inches long and 1/8 inch wide, which was healed without keloid formation, ulceration, or tenderness.  There was no deep adherence to the underlying tissue, and the scar color and texture was similar to the surrounding skin.

In September 2009, a VA provider noted that, despite the Veteran's total left knee replacement and a prolonged aggressive course of physical therapy, he continued to have persistent pain.  The Veteran reported having pain if his knees touched one another while lying on his side creating a frequent problem with sleeping.  He also reported having pain and swelling after walking for 15 minutes.  He had been prescribed Tramadol, Gabapentin, and Diclofenac on a daily basis to try and control symptoms.  It was also noted that the Veteran would likely need to remain on these medications indefinitely.  Upon examination and review of his symptoms, the VA provider injected the Veteran with Marcaine, Xylocaine, and Kenalog in the lateral margin of the patella.  The Veteran reported relief of his symptoms.    

In December 2009, the Veteran returned to the VA Orthopedic Clinic in hopes of receiving another injection.  He reported a temporary improvement in his symptoms following the September 2009 treatment, but indicated that his pain had returned.  The VA physician discussed the possibility of reinjection, but decided against it due to the risk of infection.

On VA examination in March 2010, the Veteran complained of pain and swelling.  He reported that he could only walk for 50 feet due to pain and that his pain would rise to 7/10 in a flare-up.  The examiner noted the Veteran was taking 2 tablets of 50 milligrams of Tramadol, 75 milligrams of Diclofenac, and 400 milligrams of Gabapentin.  His September 2009 steroid injection was noted.  The Veteran was diagnosed with status-post left knee replacement with pain, swelling, and flare-ups.  

On VA examination in April 2010, the Veteran's left knee had a satisfactory range of motion with no limitation.  X-rays were unremarkable.

In April 2011, the Veteran reported that his pain greatly interfered with his activities of daily living and indicated that he would like to proceed with exploratory arthroscopic surgery.  It was noted that he understood the risks.  

In June 2011, the arthroscopic surgery was conducted.  The physician noted the Veteran's chronic pain was likely due to synovial trapping.  It was also noted he had well-healed anterior surgical scars bilaterally.  Post-surgical records revealed that the Veteran had moderate swelling and pain and was using pain medication daily.

On VA examination in November 2011, the Veteran reported achiness and stiffness in the knees.  He reported that he could walk 100 feet at a time.  Pain was found at the end of range of motion.  The examiner noted the Veteran takes multiple medications to control his pain.

Collectively, the aforementioned evidence reflects that a 60 percent rating is warranted under Diagnostic Code 5055 for the Veteran's bilateral knee disabilities.  In this regard, the evidence of record demonstrates chronic residuals of the knee replacements consisting of severe painful motion.  Specifically, the record reflects that, despite his total knee replacement, the Veteran's pain has continued.  Objective evidence establishes that his pain necessitates the prescription of multiple pain medications, which the Veteran will have to take for the rest of his life.  He has undergone two additional surgical procedures following his knee replacement in an effort to minimize pain.  Moreover, subjectively, the Board finds the Veteran both competent and credible to report his symptoms.  See Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (holding that "as a layperson, the appellant is competent to provide information regarding the visible, or otherwise observable, symptoms of disability."). For all of these reasons, the Board finds the Veteran's symptomatology more closely approximates that contemplated by a 60 percent evaluation pursuant to Diagnostic Code 5055.

The rating code does not permit a rating in excess of 60 percent.  While Diagnostic Code 5055 allows a rating of 100 percent, this is a temporary evaluation available for one year immediately following a prosthetic replacement of the knee joint.  There is no diagnostic code pertaining to the knee or leg that allows ratings in excess of 60 percent.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5256-5263.

Further, the amputation rule set forth at 38 C.F.R. § 4.68 provides that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed.  For example, the combined evaluations shall not exceed the 60 percent evaluation set forth under Diagnostic Code 5162, 5163, and 5164 for an amputation of the thigh at the middle or lower thirds; for amputation of the leg with defective stump, thigh amputation recommended; and, amputation not improvable by prosthesis controlled by natural knee action.  38 C.F.R. § 4.68.  Thus, the provisions of 38 C.F.R. § 4.68 limit the combined rating for the Veteran's residuals of a left total knee replacement to 60 percent.  Thus, the currently assigned 60 percent disability evaluation for the Veteran's residuals of a total left knee replacement is the maximum rating that can be assigned under the rating schedule and pursuant to the restrictions of the amputation rule.  Therefore, as a matter of law, the Veteran cannot be granted a disability evaluation in excess of 60 percent for the disability at issue.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

Further, the Board has additionally considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca.  However, the Veteran is already assigned the maximum schedular evaluation available for a knee disability.  In Johnston v. Brown, 10 Vet. App. 80, 85 (1997), the Court determined that if a claimant is already receiving the maximum disability rating available, it is not necessary to consider whether 38 C.F.R. § 4.40 and 4.45 are applicable.  Thus, the provisions of 38 C.F.R. §§ 4.40 and 4.45 and DeLuca, supra, are not applicable. 

In reaching this decision, the Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted.  See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996).  

As held by the Court in Thun v. Peake, 22 Vet. App. 111 (2008), the threshold factor for extraschedular consideration is a finding on part of the Regional Office (RO) or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993); 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual pt. III, subpart iv, ch. 6, sec. B(5)(c).  Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extraschedular consideration is required.  See VA Gen. Coun. Prec. 6-1996 (Aug. 16, 1996).  Further analysis is necessary only if the schedular evaluation does not contemplate the claimant's level of disability and symtomatology, and is found inadequate.  If that is the case, the Board, or the RO, must then determine if the claimant's exceptional disability picture exhibits such factors as "marked interference with employment," or "frequent periods of hospitalization."  If it does, the matter is then to be referred to the Under Secretary of Benefits or the Director of the Compensation and Pension Service.

In this case, the threshold factor for extraschedular consideration has not been met.  The Board cannot find that the rating schedule is impractical in addressing any of the Veteran's symptomatology pertaining to his left knee.  In the course of the appeal, the Veteran has complained of instability, pain, swelling, difficulty with standing and walking, and stiffness in his left knee.  These symptoms are fully addressed by the schedular criteria.  In fact, the grant of the 60 percent disability evaluation is based on these severe residuals.  In short, all of the Veteran's symptomatology associated with his left knee disability is adequately contemplated by the rating schedule, the assigned evaluation is adequate, and the threshold factor for extraschedular consideration has not been met.

Finally, the Board considered whether an inferred claim for a total disability rating based on individual unemployability has been raised Rice v. Shinseki, 22 Vet. App. 447 (2009).  The Board acknowledges that the Veteran is no longer employed.  However, the record does not demonstrate, and the Veteran does not allege, unemployability on account of his left knee disability alone.  For example, the March 2010 VA examiner found the Veteran had been gainfully employed without the loss of work time until December 2007 when he retired after 28 years of employment.  The November 2011 examiner found he is no longer able to work as a general manager for a minor league baseball team, but found he could still perform sedentary work.  As such, the Board finds that Rice is inapplicable in the present case.


ORDER

Entitlement to a disability rating of 60 percent, but no higher, for status-post left knee replacement is granted since March 1, 2008, subject to statutory and regulatory provisions governing the payment of monetary benefits.




____________________________________________
JESSICA J. WILLS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs