Citation Nr: 1302575	
Decision Date: 01/23/13    Archive Date: 01/31/13

DOCKET NO.  05-06 284	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUES

1.  Entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the right knee.  

2.  Entitlement to a rating in excess of 20 percent for postoperative residuals of internal derangement of the right knee, specifically, instability.

3.  Entitlement to an initial rating in excess of 10 percent for postoperative scars, residuals of a right knee injury.  

4.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. Zawadzki, Counsel


INTRODUCTION

The Veteran served on active duty from December 1958 to August 1959.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from June 2003 and February 2004 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York.  

The Veteran submitted his claims for increased rating on December 13, 2002. In the June 2003 rating decision, the RO continued a 20 percent rating for postoperative internal derangement of the right knee, based on instability.  In the February 2004 rating decision, the RO continued the 20 percent rating for postoperative internal derangement of the right knee, based on instability; continued a 10 percent rating for right knee degenerative arthritis; continued a 10 percent rating for postoperative scars as a residual of right knee injury; and denied a TDIU.  

In March 2008, February 2010, and August 2011, the Board remanded the claims on appeal to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development.  After completing the requested development, the AMC continued to deny the claims (as reflected in a November 2012 supplemental statement of the case (SSOC)), and returned these matters to the Board for further appellate consideration.

The Veteran was initially granted service connection and assigned a 20 percent rating for postoperative internal derangement of the right knee, pursuant to Diagnostic Code 5257 (evaluating recurrent subluxation or lateral instability of the knee) in an October 1959 rating decision.  See 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2012).  The 20 percent rating was continued in a January 1980 rating decision.  In December 2002, the Veteran filed a claim for an increased rating of his service-connected disability.  In a March 2003 rating decision, the RO deferred the claim for an increased rating for postoperative internal derangement of the right knee pending the receipt of private medical records, but granted a separate 10 percent rating for right knee degenerative arthritis, pursuant to Diagnostic Code 5010-5260, and a separate 10 percent rating for postoperative scars, pursuant to Diagnostic Code 7804.  Each 10 percent rating was effective December 13, 2002, the date the Veteran's claim for an increased rating was received. In the June 2003 rating decision, and after receiving additional evidence, the RO continued the 20 percent rating for postoperative residuals of internal derangement of the right knee, pursuant to Diagnostic Code 5257.  

In May 2003, the Veteran submitted a claim for a TDIU which was interpreted as a claim for an increased rating of his service-connected right knee disabilities.  In the February 2004 rating decision, the RO continued the 20 percent rating for postoperative internal derangement of the right knee, based on instability; continued a 10 percent rating for right knee degenerative arthritis; continued a 10 percent rating for postoperative scars as a residual of right knee injury; and denied a TDIU.  

While the RO indicated in February 2004 that it was adjudicating the Veteran's claim for an increased rating filed in May 2003, within one year of issuance of the March 2003 rating decision granting service connection for degenerative arthritis and scars of the right knee, new and material evidence regarding the Veteran's right knee was associated with the claims file and the claims for higher ratings were addressed in the February 2004 rating decision.  See 38 C.F.R. § 3.156(b) (2012).  The submission of new and material evidence within the one-year appeal period following the notification of the denial of a claim serves to abate the finality of that decision.  See Buie v. Shinseki, 24 Vet. App. 242, 252 (2011) (holding that appellant submissions of new and material evidence within one year after the date of mailing of an RO decision prevents the determination from becoming final).  

As the Veteran has clearly been seeking higher ratings for his right knee disabilities since the date of his December 2002 claim, and service connection for degenerative arthritis and scars was initially granted in the March 2003 rating decision, these claims are for higher initial ratings.  By contrast, as the Veteran was service-connected for postoperative internal derangement of the right knee, evaluated based on instability, for over 40 years at the time of his December 2002 claim, this matter has been characterized as a claim for an increased rating.  

The Board has reviewed the Veteran's Virtual VA file and finds that it does not include any additional documents pertinent to the present appeal.

The claims file reflects that the Veteran was previously represented by the American Legion (as reflected in a March 2004 VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative).  In May 2011, the Veteran filed a VA Form 21-22 appointing Disabled American Veterans as his representative.  The Board recognizes the change in representation.

VA treatment records associated with the claims file subsequent to the Board's August 2011 remand include an April 2010 psychiatric consultation.  The Veteran reported that he was dealing with a medical condition, specifically, knee pain, for years.  He gave a history of depression status post his medical condition and reported that he had been receiving treatment in the private sector.  The Veteran reported that his physical limitation due to his knee pain was frustrating him and he was claiming the emotional impact of his knee pain as service-connected.  The physician noted that the Veteran had a right knee injury in service in 1958.  The pertinent impression following treatment on the date of this consultation was adjustment disorder, not otherwise specified.  Other VA treatment records include findings of and treatment for depression.  The April 2010 treatment record raises a claim for service connection for a psychiatric disorder, including adjustment disorder and/or depression, to include as secondary to the service-connected right knee disability.  

The issue of entitlement to service connection for a psychiatric disorder, including adjustment disorder and/or depression, to include as secondary to the service-connected right knee disability, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over this matter, and it is referred to the AOJ for appropriate action.  However, this matter will be referenced in the remand below, as it is inextricably intertwined with the Veteran's claim for a TDIU.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC.


FINDINGS OF FACT

1.  All notification and development action needed to fairly adjudicate the claims decided below has been accomplished.

2.  Resolving any reasonable doubt in his favor, effective December 13, 2002, the Veteran's service-connected degenerative arthritis of the right knee was manifested by functional impairment resulting in extension limited to 15 degrees, with flexion limited to no less than 90 degrees.  

3.  Since July 28, 2009, the Veteran's service-connected degenerative arthritis of the right knee has been manifested by complaints of pain with extension limited to no more than 5 degrees and flexion to no less than 60 degrees; there has been no evidence of dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 
 
4. Since December 13, 2001, one year prior to the date VA received the Veteran's claim for an increased rating for his service-connected right knee disability, postoperative residuals of internal derangement, this disability has been manifested by instability which is no worse than moderate.  

5.  Since December 13, 2002, the effective date of the grant of service connection for postoperative scars, residuals of a right knee injury, these scars have been shown to be well-healed and have not been shown to be deep or cause limited motion or limitation of function.   


CONCLUSIONS OF LAW

1.  The criteria for an initial rating of 20 percent, but no greater, for degenerative arthritis of the right knee have been met effective December 13, 2002.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.21, 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261 (2012).

2.  Since July 28, 2009, the criteria for a rating in excess of 10 percent for degenerative arthritis of the right knee have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.21, 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261 (2012).

3.  The criteria for a rating in excess of 20 percent for postoperative residuals of internal derangement of the right knee, specifically, instability, have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.21, 4.71a, Diagnostic Code 5257 (2012).

3.  The criteria for an initial rating in excess of 10 percent for postoperative scars, residuals of a right knee injury, are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.21, 4.118, Diagnostic Codes 7801, 7802, 7803, 7804, 7805 (as in effect prior to October 23, 2008).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this decision, the Board will discuss the relevant law which it is required to apply.  This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions.  See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction).  The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts.

Duty to Notify and Assist

The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the Court have been fulfilled.  In this case, the Veteran's claim for an increased rating for his service-connected right knee disability was received on December 13, 2002.  The Veteran was provided notice of what evidence was required to substantiate his claim for an increased rating, and of his and VA's respective duties for obtaining evidence in correspondence dated in January 2003 and April 2008.  The claims were reviewed and SSOCs were issued in September 2009, April 2011, and November 2012.  See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004).  See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006); Kent v. Nicholson, 20 Vet. App. 1 (2006), Mayfield v. Nicholson (Mayfield III), 499 F.3d 1317 (Fed. Cir. 2007).

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court found that the VCAA notice requirements applied to all elements of a claim.  Notice as to this matter was provided in the April 2008 letter.  

The Veteran has been made aware of the information and evidence necessary to substantiate his claims for increased ratings and has been provided opportunities to submit such evidence.  A review of the claims file and Virtual VA e-folder shows that VA has conducted reasonable efforts to assist him in obtaining evidence necessary to substantiate his claims during the course of this appeal.  His VA treatment records have been obtained and associated with his claims file and his private physicians have submitted several letters regarding his conditions.  The Veteran was also provided with VA examinations to evaluate his service-connected right knee disabilities in February 2003, October 2004, July 2009, March 2010, and October 2011.  A VA physician reviewed the claims file and rendered an opinion regarding the Veteran's employability in November 2012.  

In February 2010, the claims on appeal were remanded, in part, to obtain the Veteran's records from the Social Security Administration (SSA).  In March 2010, the SSA indicated that the requested medical records could not be furnished because the medical records had been destroyed.  The AMC made a formal finding of the unavailability of the Veteran's SSA records in January 2011, and such formal finding was listed in the evidence considered in the April 2011 SSOC.  Under these circumstances, VA has fulfilled its duty to attempt to obtain the SSA records, and that no further action in this regard is required.

As noted above, this case was most recently remanded in August 2011 so that additional VA treatment records could be obtained and so that the Veteran could be provided a VA examination to evaluate his right knee disabilities.  In October 2011, the AMC obtained the VA treatment records requested in the Board's August 2011 remand directives and the Veteran underwent a VA examination in October 2011.  There was substantial compliance with the Board's remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 

The Board has considered that the November 2012 VA opinion regarding the Veteran's employability reflects that the physician reviewed the claims file as well as VA treatment records from the Northport VA Medical Center (VAMC) in the Compensation and Pension Record Interchange (CAPRI), dated from 2000 to 2012.  She also included in her report a laboratory study from January 2012.  The most recent VA treatment records currently available for the Board's review are dated in October 2011.  In Bell v. Derwinski, 2 Vet. App. 611 (1992), the Court indicated VA adjudicators have constructive, if not actual, possession of VA records when put on notice of the existence of these records. Therefore, when VA adjudicators are on notice that additional VA records may exist concerning the claim, the records  must be obtained before deciding the claim.  

The Board has carefully considered the fact that the November 2012 opinion indicates that more recent VA treatment records are available; however, the VA physician who reviewed these records specifically stated that the progress notes from 2000 to 2012 revealed that the Veteran was seen for his diabetes, chronic obstructive pulmonary disease (COPD), Parkinson's disease, hypertension, renal insufficiency, anxiety, and depression.  Notably, the physician made no mention of references to the right knee in these records.  

A September 2011 treatment record from the Northport VAMC reflects that the Veteran presented with complaints of significant pain in his right knee and requested a scooter.  The orthopedic attending physician stated that since the Veteran's cardiologist had said he was unfit for surgery, there was not much more which could be done for him in orthopedics.  The Veteran was to review his medical condition with his non-VA cardiologist and inquire whether total knee replacement was feasible.  This treatment record suggests that the Veteran did not receive further orthopedic treatment of his right knee.  Moreover, in his December 2012 Informal Hearing Presentation (IHP), the Veteran through his representative stated that the AMC had been directed to obtain the treatment records from the Northport VAMC since March 2010 and the available records had been associated with the claims file.  

The treatment records and VA examination reports currently associated with the claims file describe the Veteran's service-connected right knee disability and provide findings responsive to the pertinent rating criteria.  The record does not indicate that the Veteran has received any more recent VA treatment which would include medical findings responsive to these rating criteria.  Rather, for the reasons stated above, the record suggests that any more recent treatment was for disorders other than the service-connected right knee conditions.  A remand to obtain any more recent VA treatment records would impose unnecessary additional burdens on adjudication resources, with no benefit flowing to the Veteran, and is, thus, unnecessary.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991).  

In February 2003, the Veteran submitted a VA Form 21-4142 (Authorization and Consent to Release Information to the Department of Veterans Affairs (VA)) indicating that he received treatment for his right knee from his private primary care physician, J. Weinberg, M.D.  He also submitted a VA Form 21-4142 for his private rheumatologist, P. Rumore, M.D. Treatment records from these physicians were requested by the RO in March 2003.  These physicians subsequently furnished several letters in support of the Veteran's claims; however, no treatment records were provided.  

In the March 2008 remand, the Board instructed that records from Dr. Rumore should be obtained.  In the April 2008 VCAA letter, the AMC asked the Veteran to complete and return a VA Form 21-4142 for each non-VA doctor who had treated him for his right knee since 2003, including Dr. Rumore.  However, the Veteran did not furnish a VA Form 21-4142 for this or any other physician.  VA is only obligated to obtain records that are adequately identified and for which necessary releases have been received.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  As the Veteran has not provided a release form for the additional private treatment records; it is not possible for VA to obtain them; hence, no further action in this regard is warranted.

VA treatment records reflect that the Veteran has been treated by several other private physicians, including a private pulmonologist, cardiologist, endocrinologist, and psychiatrist.  The March 2010 VA examination report reflects that he was  seeing his outside orthopedist for his right knee and had had multiple treatments with physical therapy.  Records from these private physicians and physical therapy records have not been associated with the claims file; however, there is no indication that records from a pulmonologist, cardiologist, endocrinologist, or psychiatrist would be pertinent to the claims adjudicated here.  Moreover, as just discussed, the Veteran has not submitted the necessary releases to allow VA to obtain any additional private treatment records.  Accordingly, no further action in regard to obtaining private treatment records is warranted.  

The Veteran has not identified any additional, relevant evidence that has not been requested or obtained.  The Veteran has been notified of the evidence and information necessary to substantiate his claim, and he has been notified of VA's efforts to assist him.  See Quartuccio v. Principi, 16 Vet. App. 183 (2002).  As a result of the development that has been undertaken, there is no reasonable possibility that further assistance will aid in substantiating his claim.

The Merits of the Claim

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which assigns ratings based on average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012).  Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran.  38 C.F.R. § 4.3.

 The veteran's entire history is to be considered when making disability evaluations.  See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007).  Where the question for consideration is entitlement to a higher initial rating since the grant of service connection, evaluation of the medical evidence since the grant of service connection to consider the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required.  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  For reasons which will be discussed below, the Board finds that assignment of staged ratings is appropriate in this case.  

Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21.  Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of his disability in reaching its decision.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

Arthritis due to trauma is evaluated pursuant to Diagnostic Code 5010, which, in turn provides that such arthritis should be rated as degenerative arthritis.  See 38 C.F.R. § 4.71a, DC 5010.  

Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings is evaluated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint involved.  When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003.  The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  38 C.F.R. § 4.71a, Diagnostic Code 5003.  

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.

The Rating Schedule provides for ratings of 0, 10, 20, or 30 percent where there is limitation of flexion of the leg to 60, 45, 30, or 15 degrees, respectively, and for ratings of 0, 10, 20, 30, 40, or 50 percent for limitation of extension of the leg to 5, 10, 15, 20, 30, or 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261.

VA's General Counsel has held that separate ratings are available for limitation of flexion and limitation of extension under Diagnostic Codes 5260 and 5261. VAOPGCPREC 9-2004 (2004).

Diagnostic Code 5257 provides ratings of 10, 20, and 30 percent for recurrent subluxation or lateral instability of the knee which is slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257.

VA's General Counsel has held that a veteran who has arthritis and instability in his knees may receive separate ratings under Diagnostic Codes 5003 and 5257.  See VAOPGCPREC 23-97 (1997).  The VA General Counsel subsequently held that separate ratings are only warranted in these types of cases when a veteran has limitation of motion in his knees to at least meet the criteria for a zero-percent rating under Diagnostic Codes 5260 or 5261, or (consistent with DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995) and 38 C.F.R. §§ 4.45 and 4.59) where there is probative evidence showing the veteran experiences painful motion attributable to his arthritis.  See VAOPGCPREC 9-98 (1998).

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

Regarding the evaluation of his right knee scars, the criteria for rating scars were revised during the pendency of this appeal, effective October 23, 2008.  The AMC considered the amended regulations in the September 2009, April 2011, and November 2012 SSOCs. Nevertheless, the revised criteria only apply to claims filed on or after October 23, 2008, and to those claims where a request for consideration of the new criteria has been received.  See 73 Fed. Reg. 54708 (Sept. 23, 2008).  As the claim for a higher initial rating was initiated by a notice of disagreement (NOD) filed prior to the effective date of the revised criteria, and the Veteran has not requested consideration of his claim under the revised criteria, those criteria are not for application.  Thus, all diagnostic codes discussed herein are the version in effect prior to October 23, 2008.  No prejudice has resulted to the Veteran in the consideration of the amended criteria by the AMC in September 2009, April 2011, and November 2012, as the AMC also considered the former criteria.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby).

As in effect prior to October 23, 2008, Diagnostic Code 7804 provides a 10 percent rating for superficial scars that are painful on examination.  38 C.F.R. § 4.118, Diagnostic Code 7804 (as in effect prior to October 23, 2008).  

The Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The evaluation of evidence generally involves a 3-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  The third step of the inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  Layno v. Brown, 6 Vet. App. 465 (1994).  Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service-connected mental disorder and drowning which caused Veteran's death).

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183 (1997).  In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).  Laypersons have also been found to not be competent to provide evidence in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). 

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107.  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 C.F.R. § 3.102.  When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996). 

VA treatment records reflect complaints regarding and treatment for right knee pain.  A December 2002 record notes that the Veteran was being followed by an orthopedist who was considering knee replacement, although the Veteran was advised to lose weight first.  A December 2002 right knee X-ray revealed degenerative joint disease regarding the medial and lateral compartments.  Later that month, the Veteran returned with complaints of constant right knee pain.  The incisions were described as well-healed and, while there was medial and lateral joint line tenderness, there was no gross instability.  The physician noted that the recent X-ray revealed severe tricompartmental arthritis.  The assessment was right knee degenerative joint disease and the physician opined that he had severe DJD and nothing short of a total knee arthroplasty would be of lasting benefit.    

In a February 2002 letter, the Veteran's private rheumatologist, Dr. Rumore stated that the Veteran had severe end stage osteoarthritis of the knees, right worse than left.  He noted that the Veteran had undergone arthroscopic debridement and meniscectomies many years earlier for knee pain, which had likely contributed to the degree of the severity of his right knee osteoarthritis.  Dr. Rumore reported that the Veteran had responded poorly to multiple medications, but had found intraarticular injections of corticosteroid to be minimally helpful.  

In a January 2003 letter, Dr. Rumore wrote that the Veteran had severe osteoarthritis in various locations.  As regards his knees, the rheumatologist noted that the Veteran had experienced severe pain which was only minimally improved with anti-inflammatory medications and analgesics.  He received slight and temporary relief from intra-articular corticosteroid injections and experienced very minimal improvements with intra-articular hyaluronate injections.  Dr. Rumore stated that X-ray studies of the knees showed essentially end stage osteoarthritis with bone-on-bone articulation, particularly in the right knee.  He added that the Veteran had chronic low backache secondary to degenerative disc disease, osteoarthritis, and spinal stenosis, for which he had undergone lumbar laminectomy infusions.  The rheumatologist commented that the Veteran experienced severe pain as a result of his severe osteoarthritis and had great difficulty ambulating and with stairs.  He had poor exercise capability because of arthritis, and his conditions were exacerbated by his other medical conditions.  Dr. Rumore concluded by opining that the Veteran was "clearly disabled from any type of work activity."  

The Veteran was afforded a VA examination to evaluate his right knee disability in February 2003.  He complained of right knee pain and gave a history of an in-service right knee injury and surgery to remove the menisci, bilaterally.  He stated that, after service, he worked as a salesman until 1982 when he went on disability due to knee pain and the development of another medical complication.  

The Veteran's then-complaints regarding the right knee included pain, swelling, stiffness, weakness, buckling, and difficulty ascending stairs.  The Veteran described pain of 9+/10, with pain medication only minimally effective.  In addition to pain medication, the Veteran stated that he had had a trial of physical therapy and acupuncture, but neither of these was helpful.  His functional status was described as able to walk independently with a cane and sometimes a walker, depending on the weather, with limited walking and stairs.  As regards his activities of daily living, he was limited in showering and putting on socks and shoes.  The Veteran added that he had used a knee brace and special stockings for a long time, but was presently getting no benefit from these.  

Examination of the right knee revealed swelling, effusion, and warmth.  There was an 11 cm. scar on the lateral side of the knee and a 9 cm. scar on the medial side of the knee, painful with motion.  Active and passive range of motion was from 15 to 90 degrees with limitation secondary to flexion contraction and pain.  There was no gross instability and anterior and posterior drawer tests were negative.  Lachman and McMurray tests were difficult to perform secondary to pain.  There was medial and lateral joint line tenderness.  The examiner observed that the Veteran was ambulating with a cane and had a slow and antalgic gait on the right side.  The examiner described the Veteran as having limitations with walking, stairs, driving, showering, and dressing.  She reviewed the December 2002 X-ray study demonstrating degenerative joint disease in the right knee.  The diagnosis following examination was degenerative arthritis of the right knee secondary to trauma during service, affecting the Veteran's functional status, walking, taking stairs, driving, and activities of daily living.  

In correspondence dated in March 2003, the Veteran's private primary care physician, Dr. Weinberg, wrote that the Veteran had multiple medical problems, including hypercholesterolemia, bronchial asthma, hypertension, and severe osteoarthritis.  He added that the Veteran was overweight and had a history of adrenal insufficiency as well as venous insufficiency and congestive heart failure.  Dr. Weinberg stated that the Veteran had a history of many years of knee pain and the physician had taken knee X-rays which showed severe osteoarthritis.  Dr. Weinberg reported that the Veteran's pain had been worsening over the past several years and he was unable to walk long distances or climb stairs.  He opined that the Veteran was not a candidate for knee replacement due to his other medical problems.  He concluded by stating that the Veteran was disabled by his knees and limited in terms of his daily activities.  

Also in March 2003, Dr. Rumore submitted another letter in support of the Veteran's claim in which he reiterated the statements made in his January 2003 letter, adding that the Veteran's right knee was especially severe in disabling features.  

The Veteran returned to the Northport VA Medical Center (VAMC) for follow-up on his right knee pain in July 2003.  Examination revealed no swelling or instability and right knee range of motion was from 0 to 90 degrees.  The impression was right knee DJD, not relieved by injections.  The physician opined that the Veteran required a total knee arthroplasty, but added that it was unclear whether this could be accomplished secondary to obesity, diabetes mellitus, chronic obstructive pulmonary disease, and hypertension.  

In a September 2003 letter, Dr. Rumore stated that the Veteran continued to have severe osteoarthritis in his knees and back.  He noted that the Veteran's severe osteoarthritis, especially in the knees, caused severe pain and he had great difficulty ambulating, with stairs being virtually impossible.  He added that the Veteran's back symptoms also caused severe pain and he had tremendous difficulty with movement and was unable to sit for long periods of time.  Dr. Rumore reiterated that the Veteran remained clearly disabled from any type of work activity and opined that he was unable to work in any capacity.  

Dr. Rumore submitted another letter in February 2004, in which he again stated that the Veteran was clearly disabled from any type of work activity and commented that his right knee was especially severe in disabling features.  

The Veteran's right knee was evaluated during an October 2004 VA examination.  The examiner noted that the Veteran had a history of congestive heart failure, hypertension, diabetes, adrenal insufficiency, COPD, hyperlipidemia, depression, and spinal stenosis.  In discussing his history, the Veteran stated that he had tried to work about eight or nine years earlier, but was unable to do so because of right knee pain; adding that he could not sit or stand for long periods and had difficulty walking and driving.  His present right knee complaints included constant sharp pain, level 10/10, and stiffness.  The Veteran reported that he sometimes had swelling, heat, and redness.  He described giving way but denied locking.  He stated that he became easily fatigued with walking.  He described buckling and noted that, many times, his knee felt unstable.  He gave a history of two falls in the past year.  The Veteran stated that his knee pain had worsened recently and was increased by standing, sitting for long periods, walking, and climbing stairs.  He stated that his pain medication was not helpful and, while he had tried physical therapy, it was also not helpful.  The Veteran stated that he had a constant flare-up of knee pain, level 10/10, and asserted that he could not stand to shave or take a shower, adding that he needed help all the time.  He reported using a cane for 12 years and stated that he sometimes used a walker at home.  He added that he had had a brace for 10 years, but reported that this was not helpful.  He denied a history of dislocation, subluxation, or inflammatory arthritis, but described a history of instability, lack of endurance, and fatigability after repetitive use.  He denied additional limitations in function during flare-ups.  

As regards his functional status, the Veteran reported that he could not work eight years earlier because of problems with sitting, walking, and standing as a result of his right knee disability.  He described problems completing his activities of daily living in that he needed help in the shower and had difficulties shaving and dressing.  He stated that he had to stop walking after two blocks as a result of pain and added that driving was very difficult.  He complained of only mild pain in his left knee.  

Examination revealed mild swelling and mild effusion.  There was an 11 cm. scar on the lateral side of the knee and a 9 cm. scar on the medial side of the knee.  There was pain with motion.  Active and passive range of motion was from 0 to 90 degrees, with limitation secondary to severe pain.  There was no gross instability.  Anterior and posterior drawer tests and Lachman's test were negative.  McMurray's and Apley tests were positive for pain.  There was no medial lateral instability or joint line tenderness.  Repetitive range of motion testing revealed increased pain and decreased range of motion, more so in extension, especially at the end.  The examiner commented that the right knee was more painful at 90 degrees of flexion and 15 degrees of extension.  The examiner observed that the Veteran was ambulating slowly with a cane with an antalgic gait on the right side.  She commented that he had limitations with walking, stairs, driving, showering, and dressing.  The diagnosis was advanced degenerative arthritis of the right knee secondary to trauma during service.  The examiner concluded by stating that the Veteran had limitation in walking, sitting, and standing, as well as decreased range of motion, regarding pain in his right knee.  

In a December 2004 letter, Dr. Rumore wrote that the Veteran was experiencing worsening symptoms of pain in his knees, particularly the right knee.  He commented that examination revealed severe pain on motion, crepitations, and tenderness.  There was a small extension contracture of about 10 degrees and flexion to about 120 degrees.  Dr. Rumore opined that the right knee was deteriorating clinically as manifested by the degree of pain and tenderness on examination and by loss of some range of motion.  He again stated that the Veteran was clearly disabled from any type of work activity.  

In his January 2005 VA Form 9, the Veteran asserted that his right knee had become extremely unstable and he described severe difficulty walking, sitting, driving, and sleeping.  

On VA examination in July 2009, the Veteran reported that he had stopped working as a salesperson in 1982 secondary to right knee pain, adding that he had been on Social Security disability since that time.  He complained of pain and intermittent swelling of the right knee.  He stated that his pain was 6-7/10 on average, but increased during flare-ups related to prolonged standing or walking.  He described these flare-ups as occurring on a daily basis and lasting for several hours.  He stated that his pain was usually relieved with rest or pain medication and was increased with standing and walking.  The Veteran reported that he required some assistance with dressing, especially as regards dressing his lower extremities, but reported that he was able to bathe and shower with the use of some assistive devices.  He stated that his ambulation was limited to less than one block with a walker and he used a Stair Glide for climbing from the first to second floor in his home.  

On examination, there was a completely healed scar at the medial aspect of the right knee as well as the anterior lateral aspect, from his previous meniscectomy.  There was no tenderness or pain along the scar tissue.  The right knee was moderately enlarged with tenderness along the medial and lateral joint line.  Active and passive range of motion revealed extension to -5 degrees and flexion to 95 degrees, with pain at the end of extension and flexion.  The Veteran was unable to tolerate repetitive range of motion testing because of pain.  Valgus stress was mildly positive and varus stress was positive.  Anterior drawer and Lachman's tests were negative, and the Veteran was unable to tolerate the McMurray test due to pain.  The Veteran had an antalgic gait and he was able to walk a short distance with a walker.  The examiner reviewed a July 2009 X-ray of the right knee which revealed findings consistent with moderate to severe osteoarthritic changes, involving the medial, lateral, and patellofemoral compartments.  

The diagnosis was chronic pain syndrome involving the right knee related to moderate to severe osteoarthritic changes, involving the medial, lateral, and patellofemoral compartments with limited range of motion, pain, and instability.  The examiner opined that the Veteran's right knee condition could significantly limit his functional ability, including activities of daily living and ambulation.  The examiner observed that flare-ups occurred daily related to prolonged standing and walking, and noted that joint function was limited mainly due to pain and mild weakness of the right quadriceps, but was not limited due to fatigue or incoordination of the right knee.  

The Veteran underwent another VA examination in March 2010.  He reported that he could not sit or stand for prolonged periods of time and had problems driving due to his right knee.  The examiner noted that the Veteran had diagnoses of diabetes, COPD, hypertension, renal insufficiency, anxiety, and depression, but the Veteran indicated that these conditions did not affect his employability as they were under control.  He described his right knee pain as constant and achy in nature, with weakness and stiffness.  There was a varus deformity and some instability with collapsing on walking with a walker.  There was giving way but no dislocation or subluxation.  There was some swelling of the right knee more than the left.  There was no heat or redness of the right knee, but there was localized tenderness medially and anteriorly on palpation.  

However, the Veteran described flare-ups every morning, when he woke with stiffness and difficulty moving and standing.  He reported having a Stair Glide and a wheelchair and stated that his seated walker helped him function at home.  He reported seeing non-VA doctors who gave him cortisone shots, the last one being two months earlier.  The Veteran stated that these shots helped for a few days.  He reported that he needed help with all activities of daily living, such as dressing and showering.  The examiner commented that he needed help with ambulation, and was ambulating 50 to 75 feet with a walker.  

Examination of the right knee revealed mild swelling and effusion.  There was no sign of infection, redness, or heat.  There was a varus deformity as well as two scars on the side of the knee, measuring 11 cm. on the lateral side and 9 cm. on the medial side.  There was pain on palpation medially and anteriorly.  Active and passive range of motion was from 0 to 90 degrees with limitation secondary to severe pain.  On repetitive range of motion testing, this was decreased from -5 to 90 degrees, with severe pain on the medial and anterior sides of the knee.  There was fatigue, weakness, lack of endurance, and incoordination noted after repetitive range of motion.  Anterior and posterior drawer tests and Lachman's test were negative.  McMurray and Apley tests were positive on the medial side for pain.  There was no medial lateral instability or joint line tenderness.  The right knee scar had no underlying soft tissue damage.  The examiner stated, "Right knee scar is opposed to the service-connected orthotic right knee surgery and this affects his flexion and extension of the right knee."  She commented that the Veteran used a walker and had a slow gait which was antalgic on the right.  She added that he had limitations with showering, dressing, stairs, and walking, observing that he used a Stair Glide for stairs and could walk 50 to 75 feet with a seated walker before having to rest.  

The examiner reviewed the July 2009 X-ray study discussed above and diagnosed  chronic right knee pain syndrome, advanced degenerative arthritis of the right knee, medial and lateral meniscectomy done in June 1959, and varus deformity.  The examiner commented that the Veteran had severe osteoarthritis of the right knee and his function was very limited in walking, standing, sitting, and doing stairs secondary to pain.  She noted that the scar resulted in no limitations of function, and described the scar as clean, dry, and intact with no soft tissue loss or soft tissue damage.  

An April 2010 record of VA treatment notes that the Veteran had substantial difficulties with his gait due to pain from his right hip and knee as well as his legs feeling fatigued with cramping of the calves, bilaterally, after walking moderate distances.  

In April 2011, the Veteran gave a long history of right knee pain and dysfunction which was limiting his ability to ambulate, although he was still able to ambulate 6 to 10 steps.  Examination revealed a genu varum deformity on the right side.  Gait was antalgic and favored the right side.  The medial and lateral right knee scars were described as well-healed.  There was gross grinding on range of motion, which was limited from 0 to 60 degrees.  There was no instability.  The impression was severe tricompartmental DJD of the right knee with genu varum.  The physician noted that the Veteran did not want a total knee arthroplasty as his cardiologist did not recommend this.  An April 2011 X-ray study of the right knee revealed moderate to severe degenerative arthritis.  An April 2011 MRI of the right knee revealed residual meniscal tissue at the anterior horn of the medial meniscus which was degenerated and frayed and mild residual meniscal tissue at the posterior horn of the lateral meniscus near the central root attachment.  There were no sizable retained free meniscal fragments seen centrally within the tibiofemoral compartments.  There was tricompartmental osteoarthritis, marked attenuation of the anterior cruciate ligament (ACL) with near complete chronic rupture, an 8 mm. anterior tibial translation, degeneration of the posterior cruciate ligament (PCL), popliteus tendinopathy at the femoral insertion, moderate joint effusion, medial suprapatellar plica, and mild focally prominent fat infiltration/atrophy of the medial gastrocnemius muscle.  

During treatment in May 2011, the Veteran again gave a long history of right knee pain and dysfunction which was limiting his ability to ambulate.  He was able to walk 6 to 10 steps, but reported that his symptoms had worsened over the last week and he was having difficulty sleeping at night because of the pain.  Examination revealed a genu varum deformity on the right side.  Gait was antalgic and favored the right side, although the Veteran was unable to stand due to pain.  The medial and lateral right knee scars were described as well-healed.  There was gross grinding on range of motion, which was limited from 0 to 60 degrees.  There was no instability.  The physician reviewed a right knee X-ray study and the April 2011 MRI and rendered an impression of severe tricompartmental DJD of the right knee with genu varum, no significant retained or free meniscal fragments.  A treatment record from later that month notes that the Veteran had been wheelchair bound for two years due to his knee injury.  

In a May 2011 statement, the Veteran asserted that he was no longer able to walk, work, or stand for any length of time as his right knee was inflamed and very painful.  

During VA treatment in June 2011, the Veteran was unable to walk because of knee pain.  The impression was severe tricompartmental DJD of the right knee with genu varum, no significant retained or free meniscal fragments.  An August 2011 record notes the Veteran's difficulty walking due to prior knee symptoms and hip problems on the right side.  In September 2011, the Veteran presented with complaints of significant pain in his right knee and requested a scooter.  The orthopedic attending physician commented that this request was complicated by the fact that the Veteran had a tremor in the right upper extremity and was right hand dominant.  The physician added that, since the Veteran's cardiologist had said he was unfit for surgery, there was not much more which could be done for him in orthopedics.  The Veteran was to review his medical condition with his outside cardiologist to see whether there was a chance for a total knee replacement and was to call back if this was possible.  

The Veteran's right knee was most recently evaluated during VA examination in October 2011.  The Veteran reported that he could not sit or stand for prolonged periods of time, nor could he drive.  The examiner noted that the Veteran had diagnoses of diabetes, COPD, hypertension, renal insufficiency, anxiety, and depression.  The Veteran described his right knee pain as constant and achy in nature, with weakness and stiffness.  He reported some instability with collapsing when he stood with a walker.  He stated that he only went to the bathroom with his walker and used a wheelchair for inside and outside the house.  He added that he had a Stair Glide in his home.  He denied a history of dislocation, but described subluxation anteriorly, moderate in severity.  There was moderate swelling, but no heat or redness of the right knee.  The Veteran stated that his pain medications were mildly helpful.  He described flare-ups every morning when he would wake up and experience stiffness and difficulty standing and moving about.  He stated that his wife did most of the cooking and cleaning and helped him with dressing, transferring to a chair, and taking a shower.  He described his pain as 9/10 and stated that this was increased by any movement, weight bearing, sitting, or standing for a prolonged period of time.  He added that he had to retire from working at age 65 due to right knee pain and difficulty with prolonged sitting or standing.  

On examination, the Veteran presented in a wheelchair.  There was mild to moderate swelling of the right knee with effusion by palpation.  There was no sign of infection, redness, or heat, but there was a varus deformity.  There was an 11 cm. scar on the lateral side of the knee and a 9 cm. scar on the medial side of the knee.  There was no underlying soft tissue damage.  There was pain on palpation medially and anteriorly.  There was no medial lateral instability or joint line tenderness.  Active and passive range of motion was from 0 to 80 degrees with limitation secondary to severe pain.  With repetitive testing, range of motion was decreased to -5 to 70 degrees with pain in both flexion and extension.  The examiner commented that, on repetitive range of motion, the Veteran had severe pain on the medial and anterior sides of the knee.  There was fatigue, weakness, lack of endurance, and incoordination noted after repetitive testing.  The Veteran's transfer with a walker revealed an antalgic gait on the right side, but the examiner noted that it was not safe for the Veteran to walk.  She added that he had limitations in showering, dressing, and with stairs.  

After reviewing the July 2009 right knee X-ray study and the April 2011 right knee MRI discussed above, the examiner rendered diagnoses of chronic right knee pain syndrome; advanced degenerative arthritis of the right knee, marked attenuation of the ACL, degeneration of the PCL; right medial and lateral meniscectomy in June 1959; and varus deformity.  She commented that the Veteran had severe traumatic osteoarthritis of the right knee and his function was very limited with only walking to go to the bathroom.  She added that he had difficulty with prolonged standing, sitting, and stairs secondary to his pain, but stated that the scar did not result in limitation of function.  She noted that the Veteran had moderate anterior subluxation and his right knee pain increased with repetitive motion, causing more weakness, fatigue, and incoordination.  She concluded by stating that the Veteran retired at age 65 secondary to right knee pain due to his inability to do prolonged standing or sitting.  

In November 2012 and in conjunction with the claim for a TDIU, a VA physician reviewed the claims file and noted that the Veteran had past employment as a clerk in a department discount company for 18 years, doing office work for 7 years, and in a beauty shop until 2002.  She stated that he stopped working because of his non-service connected poor health conditions of diabetes, COPD, Parkinson's, hypertension, renal insufficiency, anxiety, and depression.  She summarized clinical findings pertaining to the right knee, including progressive degenerative joint disease, painful limitation of motion, anterior instability, mild swelling, and asymptomatic scars.  She noted that the Veteran had fatigue, weakness, lack of endurance and an inability to walk or stand; however, she stated that this was secondary to his poor health, observing that he was wheelchair bound.  She reviewed current laboratory studies and stated that the reported values were consistent with uncontrolled diabetes with renal insufficiency.  The physician concluded that it was at least as likely as not that the Veteran's service-connected right knee condition was progressive in nature; however, it was less likely than not that the current state of the right knee, solely, warranted TDIU.  

In explaining her opinion, the VA physician noted that the Veteran had a prior employment history of having a job with his arthritic knee.  Further, she stated that the October 2011 VA examination implied that the Veteran's fatigue, lack of endurance, and inability to walk were consequences of his "poor health conditions" and such was substantiated throughout his VA treatment notes dated from 2000 to 2012, where he was seen for diabetes, COPD, Parkinson's, hypertension, renal insufficiency, anxiety, and depression.  The physician stated that the VA examinations demonstrated progression of the Veteran's right knee arthritis, but that such was not sufficient to render him totally disabled for employment.  Rather, she opined that the Veteran's inability to stand, sit, and perform cognitive skills necessary for employment were at least as likely as not directly related to his non-service connected progressive, complex systemic medical conditions.  She concluded by stating that the Veteran's diabetes, COPD, Parkinson's, hypertension, renal insufficiency, anxiety, and depression were at least as likely as not the causes for rendering him unemployable, not solely his right arthritic knee condition.  

Degenerative Arthritis of the Right Knee - Prior to July 28, 2009

Considering the pertinent evidence of record in light of the law, and resolving all reasonable doubt in favor of the Veteran, the Board will stage the right knee degenerative arthritis rating and find that an increased, 20 percent rating is warranted for degenerative arthritis of the right knee effective December 13, 2002 - the date the Veteran's claim for an increased rating was received.  

The evidence reflects that, during the period prior to July 28, 2009, degenerative arthritis of the right knee was manifested by functional impairment resulting in extension limited to 15 degrees and flexion limited to 90 degrees.  Range of motion on VA examination in February 2003 was described as from 15 to 90 degrees, secondary to flexion contraction and pain.  On VA examination in October 2004, range of motion was from 0 to 90 degrees, with limitation secondary to severe pain.  However, repetitive range of motion testing revealed increased pain and decreased range of motion, more so in extension, especially at the end.  Specifically, the examiner commented that the right knee was more painful at 15 degrees of extension and 90 degrees of flexion.  

The Court has held that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system."  Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011).  Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance."  Id., quoting 38 C.F.R. § 4.40.  Although the October 2004 VA examiner could have used more precise language, the Board is resolving any reasonable doubt in the Veteran's favor, and finds that this examination report reflects that pain on repetitive range of motion testing resulted in extension limited to 15 degrees.  The examiner did describe decreased range of motion on repetitive testing, more so in extension, and noted that the right knee was more painful at 15 degrees of extension.  During this examination, the Veteran also gave a history of lack of endurance and fatigability after repetitive use of the right knee.  Accordingly, considering the Veteran's functional impairment due to pain and other factors set forth in 38 C.F.R. §§ 4.40 and 4.45, the evidence demonstrates that functional impairment resulting from degenerative arthritis of the right knee results in extension limited to 15 degrees.  An initial 20 percent is therefore warranted.  See 38 C.F.R. § 4.71a, Diagnostic Code 5261.  However, no higher rating based on limitation of motion is warranted, as flexion limited to 90 degrees does not warrant a compensable rating pursuant to Diagnostic Code 5260.  This evidence also provides no basis for assignment of separate ratings for limited flexion and extension.  See VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004).  

While right knee range of motion was from 0 to 90 degrees during VA treatment in July 2003, there is no indication that the physician performed repetitive testing.  Similarly, in his December 2004 letter, Dr. Rumore wrote that the Veteran had a small extension contracture of about 10 degrees and flexion to about 120 degrees.  This letter suggests extension limited to no more than 10 degrees; however, again, this physician did not discuss range of motion of the right knee after repetitive use.  Accordingly, resolving any reasonable doubt in the Veteran's favor, an initial 20 percent rating for degenerative arthritis of the right knee, based on limitation of extension, is warranted during the period beginning December 13, 2002.  

In a November 2012 rating decision, the AMC granted service connection and assigned an initial noncompensable (0 percent) rating for right knee limitation of extension, pursuant to Diagnostic Code 5010-5261.  This grant of service connection was effective October 14, 2011, the date of a VA examination demonstrating extension limited to 5 degrees.  Despite this recent award of a separate noncompensable rating based on limitation of extension, the evidence demonstrates that an initial 20 percent rating, effective December 13, 2002, pursuant to Diagnostic Code 5261 is warranted.  

While a higher initial rating of 20 percent is warranted based on functional impairment resulting in limitation of extension, no higher rating based on functional impairment is for assignment.  The February 2003 VA examiner described the Veteran as having limitations with walking, stairs, driving, showering, and dressing; the March 2003 letter from Dr. Weinberg indicates that the Veteran was unable to walk long distances or climb stairs.  During the October 2004 VA examination the Veteran reported that he experienced a constant flare-up of right knee pain, to level 10/10; could not stand to shave or take a shower; had to stop walking after two blocks because of pain; and had difficulty dressing and driving.  However, he denied additional limitations in function during flare-ups.  The VA examiner noted the Veteran's limitations with walking, sitting, standing, stairs, driving, showering, and dressing.  

Despite the described limitations, even considering functional impairment resulting from pain, the Veteran retained motion from 15 to 90 degrees on VA examinations in February 2003 and October 2004 and he was able to walk with a cane on both dates.  Moreover, in his January 2003 letter, Dr. Rumore noted that the Veteran had osteoarthritis in various locations and, in addition to osteoarthritis of the knees, he had chronic low backache secondary to degenerative disc disease, osteoarthritis, and spinal stenosis.  Dr. Rumore commented that the Veteran had severe pain as a result of his severe osteoarthritis and had great difficulty ambulating and with stairs.  Similarly, in his September 2003 letter, the physician noted that the Veteran continued to have severe osteoarthritis in his knees and back, and that such osteoarthritis, especially in the knees, caused severe pain and great difficulty ambulating, with stairs being virtually impossible.  Notably, he added that the Veteran's back symptoms also caused severe pain and the Veteran had tremendous difficulty with movement and was unable to sit for long periods of time.  

The January and September 2003 letters suggest that the Veteran's functional impairment is attributable to several conditions.  The evidence does not demonstrate that the service-connected right knee disability, alone, results in additional functional impairment beyond that contemplated in the assigned rating.  

The record indicates that the Veteran underwent right knee medial and lateral meniscectomy in service.  Diagnostic Code 5259 provides a maximum rating of 10 percent for symptomatic removal of semilunar cartilage.  38 C.F.R. § 4.71a, Diagnostic Code 5259.  While the Veteran underwent right knee meniscectomy in service, and is symptomatic, his symptoms of painful and limited motion, instability, and scarring are being separately evaluated.  It would be inappropriate pyramiding to evaluate the same symptoms separately under Diagnostic Code 5259.  See 38 C.F.R. § 4.14.

While Diagnostic Code 5257 provides for rating in excess of 20 percent for severe recurrent subluxation or lateral instability, the Veteran is currently in receipt of a 20 percent rating for internal derangement of the right knee, rated based on instability, and entitlement to an increased rating pursuant to Diagnostic Code 5257 will be separately addressed below.  

Moreover, no other potentially applicable diagnostic code provides a basis for assignment of a rating in excess of 20 percent for degenerative arthritis during the period prior to July 28, 2009.  As it is neither contended nor shown that the right knee degenerative arthritis involves ankylosis or impairment of the tibia and fibula, rating under the Diagnostic Codes evaluating these disabilities is not warranted.  38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262.

With resolution of all reasonable doubt in the Veteran's favor, a 20 percent initial rating, but no greater, for degenerative arthritis of the right knee, beginning December 13, 2002 is warranted.  

Degenerative Arthritis of the Right Knee - Since July 28, 2009

Considering the pertinent evidence of record in light of the law, the Board finds that a rating in excess of 10 percent for degenerative arthritis of the right knee, from July 28, 2009, is not warranted.  

The Veteran was afforded a VA examination to evaluate his right knee disability on July 28, 2009.  Range of motion on that date was from -5 to 95 degrees, with pain at the end of extension and flexion.   Subsequent range of motion testing revealed flexion limited to no less than 60 degrees, as demonstrated during VA treatment in April and May 2011, and extension limited to no more than 5 degrees, as demonstrated after repetitive range of motion testing on VA examinations in March 2010 and October 2011.  Such limitation of flexion and extension warrant only noncompensable ratings pursuant to Diagnostic Codes 5260 and 5261, respectively.  Accordingly, the evidence since July 28, 2009 does not warrant a rating in excess of 10 percent based on limitation of flexion or extension.  This evidence also provides no basis for assignment of separate ratings for limited flexion and extension.  See VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004).  

The Board has considered the Veteran's functional impairment due to pain and other factors set forth in 38 C.F.R. §§ 4.40 and 4.45 during the period since July 28, 2009.  The Veteran continued to consistently complain of right knee pain during this period.  However, as discussed above, pain itself does not rise to the level of functional loss.  See Mitchell, 25 Vet. App. at 38Even considering pain, there is no indication that functional impairment resulted in limitation of motion as required for a higher rating during these period; rather, extension has been limited to no more than 5 degrees and flexion has been limited to no less than 60 degrees during this period.  
During the July 2009 VA examination, the Veteran reported daily flare-ups of right knee pain related to prolonged standing or walking; however, he stated that his pain was usually relieved with rest or pain medication.  While he described needing some assistance with dressing, the Veteran stated that he was able to bathe and shower with the use of assistive devices.  He was able to walk a short distance with a walker. The VA examiner opined that the Veteran's right knee condition could significantly limit his functional ability, including activities of daily living and ambulation, and noted his reported daily flare-ups related to prolonged standing and walking.  However, the examiner found that joint function was limited mainly due to pain and mild weakness of the right quadriceps, but was not limited due to fatigue or incoordination of the right knee.  

The Veteran again described daily flare-ups of right knee pain on VA examination in March 2010, stating that he woke with stiffness and difficulty moving and standing every morning.  He reported that he could not sit or stand for long periods of time, had problems driving, and needed help with activities of daily living, like showering and dressing.  The examiner noted that the Veteran needed help with ambulation, and was ambulating 50 to 75 feet with a walker.  There was fatigue, weakness, lack of endurance, and incoordination after repetitive range of motion testing.  The examiner commented that the Veteran was very limited in walking, standing, sitting, and doing stairs secondary to pain.  

During VA treatment in April and May 2011, the Veteran gave a history of right knee pain limiting his ability to ambulate, with an ability to walk 6 to 10 steps.  Another record from May 2011 indicates that the Veteran had been wheelchair bound for two years due to his knee injury.  The following month, the Veteran was unable to ambulate because of knee pain.  Most recently, on VA examination in October 2011, the Veteran reported that he could not sit or stand for prolonged periods, nor could he drive.  He stated that he used a walker to go to the bathroom, but otherwise used a wheelchair.  He again described daily flare-ups of right knee pain when waking.  There was fatigue, weakness, lack of endurance, and incoordination after repetitive range of motion testing.   The examiner noted that the Veteran had limitations in showering, dressing, and with stairs.  She commented that his function was very limited with only walking to go to the bathroom; adding that he had difficulty with prolonged standing, sitting, and stairs secondary to pain.  

Despite the described limitations, and even considering  pain, fatigue, weakness, lack of endurance, and incoordination demonstrated after repetitive range of motion testing in March 2010 and October 2011, the Veteran has retained right knee range of motion from -5 to 90 degrees and -5 to 70 degrees on those dates, respectively.  

Moreover, an April 2010 VA treatment record notes that the Veteran had substantial difficulties with his gait due to pain from his right hip and knee as well as his legs feeling fatigued with cramping of the calves, bilaterally, after walking moderate distances.  An August 2011 treatment record notes the Veteran's difficulty walking due to prior knee symptoms and hip problems on the right.  

The physician who provided the November 2012 opinion regarding the claim for a TDIU reviewed the claims file and noted the Veteran's fatigue, weakness, lack of endurance, and inability to walk or stand; however, she attributed these problems to his poor health, and concluded that his inability to stand, sit, and perform cognitive skills necessary for employment were at least as likely as not directly related to his non-service connected, progressive, complex systemic medical conditions.  

The April 2010 and August 2011 VA treatment records and the November 2012 VA opinion suggest that the Veteran's functional impairment is attributable to several conditions.  The preponderance of the evidence  does not demonstrate that the service-connected right knee disability, alone, results in additional functional impairment beyond that contemplated in the assigned rating.  

Given the Veteran's limited-albeit, noncompensable-right knee motion, and complaints of painful motion, as discussed above, a 10 percent rating for the right knee, the maximum rating for a single, major joint, is assignable under Diagnostic Code 5003.  38 C.F.R. § 4.71a, Diagnostic Code 5003.  The 10 percent rating assigned for degenerative arthritis of the right knee during this period, is consistent with the provisions of 38 C.F.R. §§ 4.40 and 4.45, DeLuca, as well as the intention of the rating schedule, to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  See 38 C.F.R. § 4.59.  However, no higher rating is assignable.  

Diagnostic Code 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking", pain, and effusion into the joint.  38 C.F.R. § 4.71a, Diagnostic Code 5258.  Semilunar cartilage is defined externally as the meniscus lateralis articulationis genus (lateral meniscus) and internally as the meniscus medialis articulationis genus (medial meniscus).  See Dorland's Illustrated Medical Dictionary 273, 1013 (28th ed. 1994).  While effusion was has been noted since July 28, 2009, in particular, on VA examinations in March 2010 and October 2011, and on MRI in April 2011, there is no evidence of dislocated semilunar cartilage with frequent episodes of "locking", pain, and effusion into the joint.  

Rather, the April 2011 right knee MRI revealed residual meniscal tissue at the anterior horn of the medial meniscus which was degenerated and frayed and mild residual meniscal tissue at the posterior horn of the lateral meniscus near the central root attachment.  There were no sizable retained free meniscal fragments seen centrally within the tibiofemoral compartments.  While moderate joint effusion was noted on this MRI, there was simply no mention of dislocated semilunar cartilage.  Accordingly, a rating in excess of 10 percent pursuant to Diagnostic Code 5258 is not warranted.  

As discussed previously, the Veteran underwent right knee medial and lateral meniscectomy in service and Diagnostic Code 5259 provides a maximum rating of 10 percent for symptomatic removal of semilunar cartilage.  38 C.F.R. § 4.71a, Diagnostic Code 5259.  While the Veteran underwent right knee meniscectomy in service, and is symptomatic, his symptoms of painful and limited motion, instability, and scarring are being separately evaluated and it would be inappropriate pyramiding to evaluate the same symptoms separately under Diagnostic Code 5259.  See 38 C.F.R. § 4.14; compare 38 C.F.R. § 4.14 (the evaluation of the " same disability " or the " same manifestation " under various diagnoses is to be avoided) and Esteban v. Brown, 6 Vet. App. 259 (1994) (while pyramiding of disabilities is to be avoided pursuant to 38 U.S.C. § 1155  and 38 C.F.R. § 4.14 , it is possible for a veteran to have separate and distinct manifestations from the same injury permitting two different disability ratings). 

Further, while Diagnostic Code 5257 provides for ratings in excess of 10 percent for recurrent subluxation or lateral instability which is moderate or severe, the Veteran is currently in receipt of a 20 percent rating for internal derangement of the right knee, rated based on instability, and entitlement to an increased rating pursuant to Diagnostic Code 5257 will be separately addressed below.  

Moreover, no other potentially applicable diagnostic code provides a basis for assignment of a rating in excess of 10 percent for degenerative arthritis during the period since July 28, 2009.  As it is neither contended nor shown that the right knee degenerative arthritis involves ankylosis or impairment of the tibia and fibula, rating under the Diagnostic Codes evaluating these disabilities is not warranted.  38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262.

For all the foregoing reasons, a rating in excess of 10 percent for degenerative arthritis of the right knee is not warranted from July 28, 2009.  

Postoperative Residuals of Internal Derangement of the Right Knee, Specifically, Instability

Considering the pertinent evidence of record in light of the law, the Board finds that a rating in excess of 20 percent for postoperative residuals of internal derangement of the right knee, specifically, instability, is not warranted.  

The evidence pertinent to the claim for an increased rating demonstrates right knee instability which is no worse than moderate.  Notably, there was no gross instability of the right knee during VA treatment in December 2002.  While the Veteran reported right knee buckling on VA examination in February 2003, examination on that date also revealed no gross instability.  There was, again, no instability on examination during VA treatment in July 2003.  While he again described buckling and reported that, many times, his knee felt unstable during the October 2004 VA examination, examination of the right knee at that time revealed no gross instability or medial lateral instability.  The Veteran reported in his January 2005 VA Form 9 that his right knee had become extremely unstable and the diagnosis following VA examination in July 2009 was chronic pain syndrome involving the right knee related to moderate to severe osteoarthritic changes, involving the medial, lateral, and patellofemoral compartments with limited range of motion, pain, and instability.  The Veteran again reported instability during his March 2010 VA examination; however, there was no medial lateral instability on examination at that time, nor was there instability on examination during VA treatment in April and May 2011.  

Most recently, on VA examination in October 2011, the Veteran reported some right knee instability, with collapsing when he stood with a walker.  He denied a history of dislocation, but described subluxation anteriorly, moderate in severity.  There was no medial lateral instability on examination; however, the examiner noted that the Veteran had moderate anterior subluxation of the right knee.  

Despite his repeated reports of right knee instability, the preponderance of the evidence is against a finding of severe recurrent subluxation or lateral instability as required for an increased, 30 percent rating.  Rather, there was no instability on examination of the right knee in December 2002, February 2003, July 2003, October 2004, March 2010, April 2011, or May 2011.  While instability was noted on VA examination in July 2009, there is no indication that this was severe and, as indicated above, several subsequent examinations of the right knee did not reveal instability.  There was no medial lateral instability on examination of the right knee in October 2011; however, anterior subluxation was noted.  This subluxation was clearly described as moderate.  

For all the foregoing reasons, a rating in excess of 20 percent for postoperative residuals of internal derangement of the right knee, specifically, instability, is not warranted.  

Postoperative Scars, Residuals of Right Knee Injury

The preponderance of the evidence is against a finding of the criteria to establish a  rating in excess of 10 percent for postoperative scars, residuals of a right knee injury.  

The Veteran is in receipt of a 10 percent rating for postoperative right knee scars, pursuant to Diagnostic Code 7804.  As noted above, as in effect prior to October 23, 2008, Diagnostic Code 7804 provides a 10 percent rating for superficial scars that are painful on examination.  38 C.F.R. § 4.118, Diagnostic Code 7804 (as in effect prior to October 23, 2008).  

Ratings in excess of 10 percent are available pursuant to Diagnostic Codes 7801 and 7805.

Under Diagnostic Code 7801, scars, other than of the head, face, or neck, that are deep or cause limited motion in an area or areas exceeding 12 square inches. (77 sq. cm.) warrant a 20 percent rating.  38 C.F.R. § 4.118, Diagnostic Code 7801.  Higher ratings are available for scars in larger areas.  A deep scar is one associated with underlying soft tissue damage.  Id. at Note (2).

Diagnostic Code 7805 evaluates scars based on limitation of function of the affected part.  

The preponderance of the evidence is against a finding the Veteran's right knee scars are deep or cause limited motion.  Rather, these scars have consistently been described as well-healed and the March 2010 and October 2011 VA examiners specifically indicated that there was no soft tissue damage or loss associated with the scars.  Even if the scars were found to be deep or cause limited motion, they do not have an area exceeding 12 square inches (77 square cm.).  Rather, the February 2003, October 2004, and March 2010, and October 2011 VA examiners described an 11 cm. scar on the lateral side of the right knee and a 9 cm. scar on the medial side of the right knee.  As such, a rating in excess of 10 percent pursuant to Diagnostic Code 7801 is not warranted.  

Further, the right knee scars do not result in limitation of function.  While the February 2003 VA examiner noted that there was an 11 cm. scar on the lateral side of the right knee and a 9 cm. scar on the medial side of the right knee, painful with motion, it is unclear whether this reference to pain with motion was in regard to the scars themselves or, more generally, to the knee.  In any event, the Veteran is currently in receipt of a 10 percent rating for scars which are painful on examination.  The July 2009 VA examiner clearly indicated that there was no tenderness or pain along the scar tissue.  Significantly, both the March 2010 and October 2011 VA examiners found that the right knee scars resulted in no limitation of function.  As such, a rating in excess of 10 percent pursuant to Diagnostic Code 7805 is not warranted.  

For all the foregoing reasons, a rating in excess of 10 percent for postoperative scars, residuals of a right knee injury, is not warranted.  
Extra-schedular Consideration

The Veteran's right knee disabilities have not been shown to be so exceptional or unusual as to warrant the assignment of any higher rating on an extra-schedular basis.  See 38 C.F.R. § 3.321.

The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  See also 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 rating is therefore adequate, and no referral for extra-schedular consideration is required.  See Thun v. Peake, 22 Vet. App. 111 (2008); VAOGCPREC 6-96 (Aug. 16, 1996).  

If the rating schedule 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" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. 
§ 3.321(b)(1).  If so, 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 extra-schedular rating.  Thun, supra.

In this case, the Board finds that the schedular criteria are adequate to rate the service-connected right knee disabilities.  The rating schedule contemplates the described symptomatology of painful and limited motion, instability, and scarring, and allows for higher disability ratings for worse symptoms.  Significantly, there is no medical indication or argument that the applicable criteria are inadequate to rate the disabilities.  The symptoms of the Veteran's service-connected right knee are adequately compensated in the disability ratings assigned.  Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met.  See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

Further, the evidence also does not indicate that the Veteran's right knee disabilities, alone, result in marked interference with employment above and beyond that considered by the assigned disability ratings or that there have been frequent periods of hospitalization.  The Veteran does have significant occupational impairment as a result of his right knee disabilities; however, a degree of occupational impairment is inherent in his assigned disability ratings.  As discussed above, the Veteran's private physicians have referenced multiple other medical conditions, including osteoarthritis of the left knee and osteoarthritis, degenerative disc disease, and spinal stenosis of the lumbar spine which have impacted the Veteran's employability.  According to the physician who reviewed the claims file and provided a November 2012 opinion regarding the Veteran's employability, the Veteran's inability to stand, sit, and perform cognitive skills necessary for employment were at least as likely as not directly related to his non-service connected progressive, complex systemic medical conditions.  Specifically, she stated that the Veteran's diabetes, COPD, Parkinson's, hypertension, renal insufficiency, anxiety, and depression were at least as likely as not the causes for rendering him unemployable, not solely his right arthritic knee condition.  

For the reasons discussed above, referral for consideration of an extra-schedular rating is not warranted.  Furthermore, entitlement to a TDIU will be addressed on remand.  

The Board has resolved reasonable doubt the Veteran's favor in determining that an initial 20 percent rating is warranted for degenerative arthritis of the right knee prior to July 28, 2009, but finds that the preponderance of the evidence is against assignment of a rating greater than 10 percent for degenerative arthritis of the right knee since July 28, 2009, a rating in excess of 20 percent for postoperative residuals of internal derangement of the right knee, specifically, instability, and an initial rating in excess of 10 percent for postoperative scars, residuals of a right knee injury.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

An initial rating of 20 percent for degenerative arthritis of the right knee, effective December 13, 2002 to July 28, 2009 is granted.  

An initial rating in excess of 10 percent for degenerative arthritis of the right knee effective July 28, 2009 is denied. 

A rating in excess of 20 percent for postoperative residuals of internal derangement of the right knee, specifically, instability, is denied.

An initial rating in excess of 10 percent for postoperative scars, residuals of a right knee injury, is denied.  


REMAND

The Veteran's claim for a TDIU must be remanded for adjudication of an inextricably intertwined claim for service connection for a psychiatric disorder, including adjustment disorder and/or depression, to include as secondary to the service-connected right knee disability, as raised in an April 2010 VA treatment record.  

The claim for service connection for a psychiatric disorder, including adjustment disorder and/or depression, to include as secondary to the service-connected right knee disability, is inextricably intertwined with the claim for a TDIU, and the claims should be considered together.  See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue).  Accordingly, remand of the TDIU claim is warranted.  See Gurley v. Peake, 528 F.3d 1322 (2008) (remand of inextricably intertwined claims warranted for reasons of judicial economy even in absence of administrative error).

In light of the above, the Board will defer adjudication of the claim for a TDIU until development and adjudication have been completed for the claim for service connection for a psychiatric disorder, including adjustment disorder and/or depression, to include as secondary to the service-connected right knee disability.   

Additionally, as discussed above, in her November 2012 opinion, a VA physician indicated that she had reviewed the Veteran's VA progress notes from 2000 to 2012.  The most recent VA treatment records currently available for the Board's review are dated in October 2011.  As any records of VA treatment since October 2011 are potentially pertinent to the claim for a TDIU and within the control of VA, they should be obtained and associated with the claims file or Virtual VA e-folder.  Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  Request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his service-connected disabilities.  After acquiring this information and obtaining any necessary authorization, obtain and associate any outstanding pertinent records with the claims file.  A specific request should be made for records of treatment from the Northport VAMC, dated since October 2011.

2. Conduct all necessary notice, development and adjudication of the claim for service connection for a psychiatric disorder, including adjustment disorder and/or depression, to include as secondary to the service-connected right knee disability.  

3.  After completing the above actions, and any additional notification and/or development deemed warranted, readjudicate the claim for a TDIU in light of all pertinent evidence and legal authority. 

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

The appellant has the right to submit additional evidence and argument on the matter that 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. 2012).



______________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs