Citation Nr: 1303607
Decision Date: 02/01/13	Archive Date: 04/10/13

DOCKET NO. 05-37 802	)        DATE 01 FEB 2013

On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida

THE ISSUES

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

2. Entitlement to a rating in excess of 30 percent for left knee arthritis, status post arthroscopy, prior to February 20, 2010 (excluding periods of a temporary total rating).

3. Entitlement to a rating in excess of 60 percent for total left knee replacement, previously rated as left knee arthritis, status post arthroscopic surgery, since February 20, 2010 (excluding a period of a temporary total rating.

4. Entitlement to a compensable evaluation for right knee arthritis prior to September 27, 2005.

5. Entitlement to a rating in excess of 10 percent for right knee arthritis since September 27, 2005.
 
REPRESENTATION 

Appellant represented by:   Disabled American Veterans

WITNESSES AT HEARING ON APPEAL 

Appellant, his wife, and his daughter

ATTORNEY FOR THE BOARD 

K.J. Kunz, Counsel

INTRODUCTION

The Veteran served on active duty from January to April 1978, from May 1979 to September 1980, and from January to November 2003. He also had training in the Army Reserve.

This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from a December 2004 rating decision of the VA Regional Office (RO) in Newark, New Jersey. Jurisdiction of the case now resides with the St. Petersburg, Florida, RO.

The Veteran was afforded a hearing in January 2008 before the undersigned Veterans Law Judge sitting at Newark, New Jersey. The transcript is of record. These issues were remanded by the Board in March 2008 and May 2011.

In the May 2011 remand, the Board referred additional claims to the RO for appropriate action that the Veteran had raised but that had not yet been adjudicated by the RO. Since that remand, he has submitted additional claims, some of which concern issues other than those the Board referred in May 2011.

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One of the issues the Board referred in May 2011, a total disability rating based on individual employability (TDIU), was granted by the RO in a March 2012 rating decision. With respect to the other issues, a review of the claims file shows that the RO has communicated with him as recently as June 2012 acknowledging his statements. This indicates to the Board that the claims are being adjudicated at the RO and no further action on the Board's part at this time is warranted.

The Board has not only reviewed the Veteran's physical claims file, but also the file on the Virtual VA electronic file system, to ensure a total review of the evidence.

FINDINGS OF FACT

1. From November 8, 2003, to May 4, 2005, the left knee disability was adequately compensated at 10 percent based on X-ray evidence of arthritis and complaints of pain but without limitation of flexion to 45 degrees or less, limitation of extension, or frequent locking or effusion.

2. From May 4, 2005, to February 20, 2010 (excluding periods of a temporary total rating), the left knee disability was manifested by subjective complaints of pain and limitation of motion; objective findings included limitation of motion, mild instability, and mild effusion, but no evidence of ankylosis.

3. Since February 20, 2010 (excluding periods of a temporary total rating), the left knee disability has been manifested by subjective complaints of pain, limitation of motion, swelling, locking, and buckling at times, and weakness; objective findings include tenderness, limitation of motion, fatigue, weakness, and lack of endurance.

4. From November 8, 2003, to September 27, 2005, the right knee disability was manifested by X-ray evidence of arthritis and complaints of pain.

5. Since September 27, 2005, the right knee disability has been manifested by subjective complaints of pain and weakness; objective findings include the need for

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a steroid injection, and MRJ findings of a meniscus and partial ACL tear with positive McMurray and Lachman tests (suggesting instability).

CONCLUSIONS OF LAW

1. From November 8, 2003, to May 4, 2005, the criteria for a 10 percent rating, but no more, for left knee arthritis were met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5003, 5258, 5260, 5261 (2012).

2. From May 4, 2005, to February 20, 2010 (excluding periods of a temporary total rating), the criteria for a rating in excess of 30 percent were not met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5258, 5260, 5261 (2012).

3. Since February 20, 2010 (excluding periods of a temporary total rating), the criteria for a rating in excess of 60 percent have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5258, 5260, 5261 (2012).

4. From November 8, 2003, to September 27, 2005, the criteria for a separate 10 percent rating for right knee arthritis were met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5258, 5260, 5261 (2012).

5. Since September 27, 2005, the criteria for a 20 percent rating, but no more, for right knee arthritis have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5258, 5260, 5261 (2012).

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REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012).

However, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 1 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment).

Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2012).

While a veteran's entire history is reviewed when assigning a disability evaluation, where service connection has already been established and an increase in the rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 1 Vet. App. 55 (1994). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007).

In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse

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symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.

The Veteran has disabilities in both knees which initially were described as arthritis. Over the years, he has undergone multiple left knee surgeries. The RO has described disability in the left knee as arthritis, arthritis status post arthroscopic surgery, and total left knee replacement. He appealed the initial rating the RO assigned for left and right knee disabilities, and has continued to seek ratings higher than the initial and subsequent ratings that RO assigned.

When evaluation of a musculoskeletal disability is based on limitation of motion, VA regulations provide, and the Court has emphasized, that evaluation must include consideration of impairment of function due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. 38 C.F.R. §§ 4.40, 4.45, 4.59; see DeLuca v. Brown, 8 Vet. App. 202 (1995).

The rating schedule provides for evaluating arthritis based on the limitation of motion of the affected joint. If the limitation of motion of the joint is noncompensable under the appropriate diagnostic code, a rating of 10 percent is assigned for each major joint. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.

In the absence of limitation of motion, arthritis is rated at 20 percent if there is x-ray evidence of involvement of two or more major joints with occasional incapacitating exacerbations, or at 10 percent if there is x-ray evidence of involvement of two or more major joints. 38 C.F.R. § 4.71a, DC 5003. For rating purposes the knee is considered a major joint. 38 C.F.R. § 4.45(f).

Limitation of flexion of the leg at the knee is rated at 30 percent if flexion is limited to 15 degrees, 20 percent if limited to 30 degrees, 10 percent if limited to 45 degrees, and 0 percent if limited to 60 degrees. 38 C.F.R. § 4.71a, DC 5260. Limitation of extension of the leg at the knee is rated at 50 percent if limited to 45 degrees, 40 percent if limited to 30 degrees, 30 percent if limited to 20 degrees, 20

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percent if limited to 15 degrees, 10 percent if limited to 10 degrees, and 0 percent if limited to 5 degrees. 38 C.F.R. § 4.71, DC 5261. Ankylosis of the knee is rated 60, 50,40, or 30 percent depending on the angle of flexion at which the knee is ankylosed. 38 C.F.R. § 4.71a, DC 5256.

Prosthetic replacement of the knee joint is rated at 100 percent for one year following the implantation of the prosthesis. Thereafter the joint is rated at 60 percent if there are chronic residuals consisting of severe painful motion or weakness in the affected extremity. With intermediate degrees of residual weakness, pain, or limitation of motion, it is rated by analogy to DCs 5256, 5261, or 5262. The minimum rating is 30 percent. 38 C.F.R. § 4.71a, DC 5055.

Recurrent subluxation or lateral instability of the knee is rated at 30 percent if severe, 20 percent if moderate, and 10 percent if slight. 38 C.F.R. § 4.71a, DC 5257. Dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint is rated at 20 percent. 38 C.F.R. § 4.71a, DC 5258. If a knee has had removal of semilunar cartilage and is symptomatic, it is rated at 10 percent. 38 C.F.R. § 4.71a, DC 5259.

In general, VA regulations provide that "pyramiding," or evaluation of the same disability under various diagnoses, is to be avoided. 38 C.F.R. § 4.14 (2012). VA has specifically found, however, that limitation of motion of the knee and instability of the knee are not duplicative or overlapping conditions, and that a claimant who has both arthritis and instability of the knee may be rated separately under DCs 5003 and 5257. VAOPGCPREC 23-97 (July 1997).

Because the Veteran's right and left knee disabilities have been the subject of multiple ratings over the course of several years, including many temporary total ratings, the Board will address the periods in turn.

Initial Rating

Records from the Veteran's January to November 2003 period of active service reflect that he complained of aching in both knees. Post-service, he reported

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constant pain in both knees in January 2004. Bilateral knee X-rays showed findings consistent with osteoarthritis in both knees.

On VA joints examination in February 2004, the Veteran reported bilateral knee pain, worse in the left knee. He indicated that the pain was intermittent, was aggravated by prolonged standing, and had increased over the last year. The examining physician noted the January 2004 x-ray evidence of osteoarthritis in both knees. The ranges of motion were from 0 to 145 degrees, without pain, in each knee. The examiner noted mild crepitus in the left knee. Neither knee had effusion, tenderness, or evidence of ligamentous laxity. The examiner's impression was bilateral knee osteoarthritis.

In VA outpatient treatment in July 2004, the Veteran indicated that his knee pain was treated with pain medication, and that he had an appointment for arthroscopy of both knees. In January 2005, he reported ongoing pain in both knees. He related having had left knee arthroscopy by a private physician in August 2004. In February 2005, he was seen in a VA emergency room for knee pain not remedied by medication. He walked using a cane and wore a brace on the left knee and an ace bandage on the right knee. He reported that a knee sometimes locked. The treating physician noted minimal knee tenderness. In a February 2005 statement, he wrote that he was having more problems with his knees.

In a March 2005 VA orthopedic consultation, the Veteran reported ongoing pain in both knees, and continuous, severe left knee pain. He used a cane for walking, and was observed to have a steady gait. He stated that the left knee locked, and needed to be grabbed and straightened by another person to release it. The treating clinician noted tenderness to palpation of both knees. Each knee had a range of motion from 0 to 130 degrees without pain. The knees were stable to stress. In April 2005, it was noted that he used a cane and a left knee brace. Left knee MRI showed a tear and degeneration of the meniscus and possible tear or degeneration of the anterior cruciate ligament (ACL).

The RO initially granted service connection for arthritis of the knees effective from November 8, 2003, the day following the Veteran's separation from service, and

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assigned a single 10 percent rating for the bilateral disorder. He asserts that he should have separate ratings for the right and left knee and the Board agrees.

The 10 percent rating initially assigned (and for which he has received benefits) is consistent with the left knee disability for that period. As noted above, range of motion testing did not show limitation of flexion to 45 degrees or less, or any limitation of extension. The left knee disability therefore did not warrant a rating higher than 10 percent under DCs 5003, 5260, or 5261.

From February 2005 forward, the Veteran wore a brace on his left knee, but there was no evidence of nonunion of the tibia and fibula requiring a brace, such as would warrant a rating under DC 5262. From February 2005 forward he reported locking and pain in the knee, and April 2005 MRI showed meniscus tear and degeneration. The evidence however did not show frequent episodes of locking and effusion such as would warrant a 20 percent rating under DC 5258. The preponderance of the evidence thus indicates that from November 8, 2003, through May 4, 2005, the left knee disability did not meet the criteria for a rating in excess of the already-assigned 10 percent.

With respect to the right knee, the Veteran related some pain due to his right knee arthritis. In light of his on-going reports of pain in the right knee, X-ray evidence consistent with arthritis, but no limitation of motion or instability, the Board finds that a separate 10 percent rating is warranted for a right knee disability for the period from November 8, 2003, to September 27, 2005. (Parenthetically, the Board will address whether a rating in excess of 10 percent is warranted for the right knee for the entire time on appeal below).

Rating in Excess of 30 Percent for a Left Knee Disability Prior to February 2010

The Veteran's left knee disability was increased to 30 percent in July 2007 and made effective to October 1, 1995 (a temporary total rating had been in effect from May 4, 2005, to October 1, 2005). The 30 percent was in effect until February 20, 2010, with multiple periods of temporary total ratings during that time frame. The Board's discussion in this section will focus on whether a rating in excess of 30

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percent was warranted between October 1995 and February 2010 but exclude the periods of temporary total ratings.

In order to warrant a rating in excess of 30 percent, the evidence must show:

• Ankylosis of the knee in flexion between 10 and 20 degrees (40% under DC 5256)

• Extension limited to 30 degrees (40% under DC 5261).

The Veteran was admitted to a VA facility for left knee surgery on May 4, 2005. He received a temporary total rating until October 1, 1995.

In VA treatment in October 2005, the Veteran reported that two days earlier his knees gave way and he fell. He stated that pain in his knees was worse since then. In November 2005, he reported pain in both knees. He ambulated using a cane, and wore knee braces. The treatment notes reflect that a right knee surgery was planned for January 2006. In VA treatment in December 2005, he wore braces on both knees.

On VA joints examination in December 2005, the Veteran walked using two canes for assistance. The ranges of motion were from 0 to 100 degrees in the left knee and from 0 to 90 degrees in the right knee. In both knees, there was pain at the ends of flexion and extension. Pain increased with motion. After four repetitions of movement, flexion was limited by another 16 degrees in the left knees and 14 degrees in the right knee. There was evidence of mild instability in the anterior and posterior cruciate ligaments bilaterally, more in the right knee. The Lachman test was mildly positive, the anterior drawer test was positive, and the McMurray test was positive bilaterally. There was mild effusion in both knees.

This evidence does not support a higher rating. That his range of motion was 0-100 degrees indicates that he did not have ankylosis permanent stiffening) of the left knee. Further, extension was reported at 0 degrees (anatomically normal) which does not support a higher rating.

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The Veteran was on a temporary total rating again from January 24, 2006, to May 1, 2006. The next treatment notes thereafter are dated in August and September 2006 and reflect ongoing pain in both knees. In November 2006, neoprene knee supports were supplied. In January 2007, he reported ongoing left and right knee pain. He stated that his left knee pain was constant and was worse with walking, such that he could only walk half a block. The clinical evidence does not reflect the basis on which to increase the rating during that time period.

On February 6, 2007, the Veteran had left knee surgery at a private facility. The surgery included arthroscopy, chondroplasty of the patella, and tibial tubercle transfer. He was granted a temporary total rating from February 6, 2007, to August 1, 2007. Thereafter, the evidence reflects that he underwent a left knee MRI at a private facility in December 2007 which showed metallic hardware and chondromalacia. The cruciate and collateral ligaments and medial and lateral meniscus appeared intact.

In the January 2008 Travel Board hearing, the Veteran stated that earlier he was on mild pain medications, but that over time physicians prescribed increasingly strong pain medications. He indicated that he had undergone knee surgeries, six on his left knee and one on his right knee. He stated that he was expected to need future left knee replacement surgery and right knee surgery to address a torn meniscus. He reported that he wore braces on both knees and used a cane. He stated that his left and right knee problems made him unable to walk even a block.

In VA treatment in 2008, the Veteran reported ongoing left knee pain. In April 2008, he stated that left knee pain made him have to stop after walking about 175 feet. He indicated that he also had occasional buckling of the left knee. The treating clinician found that the left knee had motion from 0 to 90 degrees, with pain at both end ranges. There was x-ray evidence of patellofemoral instability. He had physical therapy for his left knee. In May 2008, it was noted that the active motion of the left knee was limited to 10 degrees short of full extension, and to 90 degrees of flexion.

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This evidence does not support a higher rating. Even considering the Veteran's ongoing complaints of pain, his limitation of motion in extension was nearly normal and there was no indication of ankylosis.

On VA joints examination in August 2008, the Veteran reported constant, severe, intractable left knee pain, aggravated by bearing weight on that knee. It was noted that left knee replacement surgery had been proposed. He stated that he had intermittent right knee pain. He reported that he had worked as a supervisor in city government, but had been on disability since February 2007. He stated that he used bilateral knee braces and a cane, and that he needed assistance from his wife in showering and dressing.

The range of motion of the left knee from 10 degrees of extension to 55 degrees of flexion and was associated with severe pain. Only two repetitions were performed because of intractable knee pain. After two motions, the range of motion was 50 percent reduced. There was evidence of fatigue, weakness, and lack of endurance. The right knee had motion from 0 to 135 degrees with mild discomfort at the end ranges. There was no pain or further reduction of motion following five repetitions. There was no evidence of fatigue, weakness, or lack of endurance.

While it was apparent that the Veteran was reporting increasing symptoms and the clinical evaluation was worsening, the above evidence does not show sufficient limitation of motion or ankylosis to support a higher rating at that time.

Rating in Excess of 60 Percent for a Left Knee Disability Since February 2010

On December 17, 2008, the Veteran underwent left total knee replacement surgery and a temporary total rating was assigned from December 17, 2008, to February 1, 2010. His rating was thereafter increased to 60 percent effective February 20, 2010. Problems developed after the Veteran's left knee replacement surgery, and on January 27, 2011, he underwent a revision surgery. The RO assigned a convalescence rating, and then resumed a 60 percent rating from March 1, 2012.

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The Board's discussion in this section will focus on whether a rating in excess of 60 percent was warranted since February 2010 but excludes the period of a temporary total rating.

In a February 2010 VA examination, the Veteran reported that after recovery from the December 2008 left knee replacement surgery, he had no pain until November 2009, when his right knee gave out. He complained of intermittent severe knee pain, aggravated by more than ten minutes of walking. He related having left knee swelling and locking and buckling of the left knee at times.

Physical examination revealed that the left knee was tender to palpation and had a mild effusion. Range of motion was limited to 25 degree of extension and 90 degrees of flexion associated with severe pain. After three repetitions, pain was increased significantly, and the range of motion was reduced approximately 30 percent. There was evidence of fatigue, weakness, and lack of endurance.

On January 27, 2011, the Veteran underwent surgery to revise the left knee prosthesis. In July 2011, he underwent manipulation of the left knee under anesthesia. VA outpatient treatment in 2011 also included treatment in the pain management clinic, for management of pain in the left knee, right knee, and other areas.

In a November 2011 VA examination, the Veteran reported having constant left knee pain. On examination, the left knee was limited to 105 degrees of flexion, with pain at 105 degrees, and 25 degrees of extension, with pain at 25 degrees. The ranges of motion were the same after three repetitions. The left knee had pain on movement, swelling, deformity, incoordination, instability of station, disturbance of locomotion, interference with sitting, standing, and weightbearing.

The examiner indicated that status post total knee replacement the left knee had chronic residuals consisting of severe painful motion or weakness. The Veteran used braces and a cane constantly.

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On VA knees examination in February 2012, the examiner noted the history of total left knee replacement. Motion of the left knee was limited to 40 degrees of flexion, with pain from 30 degrees, and 10 degrees of extension. After three repetitions, extension ended at 40 degrees. The left knee had functional loss including less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, instability of station, disturbance of locomotion, and interference with sitting, standing, and weightbearing. The examiner found that the left knee had chronic residuals of replacement consisting of severe painful motion or weakness.

As a procedural matter, it is unclear to the Board why there is a 19 day discrepancy between the end of the temporary total rating on February 1, 2010, and the start of the 60 percent rating on February 20, 2010. While there is no clinical evidence of record until February 20, 2010, the Veteran is competent to report his symptoms during that period. Nonetheless, it is a distinction without a difference as his payment starts on the first day of the month following the grant of a benefit. In this case, the payment would have started on March 1, 2010, regardless of whether the benefit was granted on February 1, 2010, or February 20, 2010.

Turning now to whether the Veteran is entitled to a rating in excess of 60 percent, the Board makes two observations. First, the 100 percent rating is only warranted under DC 5055 for the 1 year following implantation of the prosthesis. There are otherwise no criteria that would allow a rating in excess of 60 percent under that diagnostic code regardless of the level of disability. Similarly, none of the other relevant diagnostic codes that address the knee and leg provide for a rating in excess of 60 percent. Parenthetically, the Board also notes that the Veteran is in receipt of a TDIU effective November 2008, which encompasses this time period. Therefore, a higher rating since February 20, 2010, is not warranted.

Rating in Excess of 10 Percent for a Right Knee Disability

Having granted the Veteran a separate 10 percent rating for his right knee disability for the period from November 8, 2003, to September 5, 2005 (when a 10 percent

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was already in effect), the Board's discussion in this section will focus on whether he is entitled to a rating in excess of 10 percent for the entire time on appeal.

In order to warrant a higher rating, the evidence must show:

• Ankylosis at a favorable angle (30% under DC 5256)
• Moderate knee impairment (20% under DC 5257)
• Flexion limited to 30 degrees (20% under DC 5260)
• Extension limited to 15 degrees (20% under DC 5261)

As noted above, post-service X-rays show arthritis in both knees. In a February 2004 VA examination, he reported intermittent pain and range of motion was 0-145 degrees without pain (anatomically normal). There was no evidence of effusion, tenderness, or ligamentous laxity. This evidence does not support a higher rating as range of motion was normal and there was no more than slight knee impairment.

In a March 2005 VA orthopedic consultation, the Veteran reported ongoing pain in both knees with continuous and severe left knee pain. Range of motion of the right knee was 0 to 130 degrees without pain and the knee was stable to stress. He continued to report pain in the right knee but the next physical finding is dated in July 2005 when he reported an exacerbation of right knee pain following left knee surgery. He received a corticosteroid injection of his right knee.

In August 2005, a treating clinician noted evidence of a possible right meniscal tear. Right knee MRI performed in September 2005 showed a meniscus tear and a partial ACL tear; however, the Veteran had full range of motion. The McMurray and Lachman tests were positive in the right knee.

Based on the evidence of an exacerbation of right knee pain in July 2005, the need for a steroid injection, and the MRI findings of a meniscus and partial ACL tear with positive McMurray and Lachman tests (suggesting instability) in September 2005, the Board finds that this evidence supports a "moderate" knee impairment, which warrants a 20 percent rating, effective as that date.

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Having determined that a 20 percent rating is warranted, the Board will consider whether the evidence supports a rating in excess of 20 percent. In order to warrant a higher rating, the evidence must show:

• Ankylosis in flexion between 10 and 20 degrees (40% under DC 5256)
• Severe knee impairment (30% under DC 5257)
• Flexion limited to 15 degrees (30% under DC 5260)
• Extension limited to 20 degrees (30% under DC 5261)

In VA treatment in October 2005, the Veteran reported that two days earlier his knees gave way and he fell. He stated that pain in his knees was worse since then. In November 2005, he reported pain in both knees. He ambulated using a cane, and wore knee braces. The treatment notes reflect that a right knee surgery was planned for January 2006. In VA treatment in December 2005, he wore braces on both knees.

On VA joints examination in December 2005, the Veteran walked using two canes for assistance. The range of motion was from 0 to 90 degrees in the right knee. In both knees, there was pain at the ends of flexion and extension. Pain increased with motion. After four repetitions of movement, flexion was limited by another 14 degrees in the right knee. There was evidence of mild instability in the anterior and posterior cruciate ligaments bilaterally, more in the right knee. The Lachman test was mildly positive, the anterior drawer test was positive, and the McMurray test was positive bilaterally. There was mild effusion in both knees.

This evidence does not support a higher rating. While instability was noted, it was characterized as mild. Even considering an additional functional limitation of motion 14 degrees less, this would reflect that extension was anatomically normal at 0 degrees and flexion was limited at approximately 76 degrees, which does not support a higher rating under either DC 5260 or 5261. Moreover, that a range of motion is reported indicates that there was no ankylosis and no basis for a higher rating under DC 5256.

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In VA treatment in January 2006, the Veteran reported having postponed right knee surgery due to the need for further attention to his left knee disability. On VA joint examination in February 2007, he reported minimal discomfort in the right knee at times. Range of motion was 0 to 140 degrees with minimal discomfort at the end of the range of motion. There was no additional pain or limitation of motion after five repetitions. As range of motion was normal, a higher rating is not warranted.

As reported above, at the January 2008 Travel Board hearing, the Veteran testified that he had undergone surgery on his right knee, although this is not borne out by the evidence. He stated that he was expected to need future right knee surgery to address a torn meniscus. He reported that he wore braces on both knees and used a cane. He stated that his left and right knee problems made him unable to walk even a block.

On VA joints examination in August 2008, the Veteran reported intermittent right knee pain. He stated that he used bilateral knee braces and a cane. The right knee had motion from 0 to 135 degrees with mild discomfort at the end ranges. There was no pain or further reduction of motion following five repetitions. There was no evidence of fatigue, weakness, or lack of endurance.

On VA examination in November 2011, the Veteran reported recurrent right knee pain. On examination, the right knee had motion from 0 to 130 degrees, with pain at 130 degrees. The range of motion was the same after three repetitions. The examiner noted that there was x-ray evidence of arthritis in the right knee.

On VA knees examination in February 2012, the right knee had flexion to 130 degrees with pain at 130 degrees, and extension limited to 10 degrees. After three repetitions, the ranges of motion were the same. The right knee was stable on testing.

The physical findings of these examinations do not support a higher rating for a right knee disability. The evidence does not show ankylosis, severe knee impairment, flexion limited to 15 degrees, or extension limited to 20 degrees. In

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fact, these more recent examinations reflect that range of motion was nearly anatomically normal.

In sum, based on the September 1995 findings of ongoing pain, the need for steroid injection, and MRI evidence of torn ligaments (indicating instability), the Board finds that a 20 percent rating, but no more, is warranted from time.

Additional Considerations

When there is an exceptional disability picture, such that the rating schedule criteria do not reasonably describe a claimant's disability level and symptomatology, an RO may refer a case to the VA Under Secretary for Benefits or to the Director of the VA Compensation and Pension Service for consideration of an extraschedular rating. See 38 C.F.R. § 3.321(b)(1) (2012); see also Thun v. Peake, 22 Vet. App. 111, 115(2008).

First, there must be a comparison between the level of severity and symptomatology of a veteran's service-connected disability and the established criteria found in the rating schedule to determine whether a veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimants exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization).

If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id.

The record does not establish that the rating criteria are inadequate. To the contrary, the very symptoms that the Veteran describes and the findings made by the various medical professionals, such as knee pain, limitation of motion, and for the left knee post-operatively, are the symptoms included in the criteria found in the

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rating schedule for his disabilities. As the schedular criteria are not inadequate for rating his disability, and the other two steps in the analysis of extra-schedular ratings need not be reached.

VCAA

Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfleld v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies. See 38 U.S.C.A. § 7261(b)(2) (West 2002). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486.

The Veteran's claims arise from his disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA.

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As to VA's duty to assist, the RO associated the Veteran's service treatment records, post-service medical records, statements from the Veteran, reports of VA medical examinations, and the transcript of a Travel Board hearing that the Veteran had in January 2008 before the undersigned Veterans Law Judge. Examinations that addressed his knee disabilities were adequate for rating purposes as the examiners reviewed the claims file and examined the Veteran. There was no indication that the examiners misstated any relevant fact.

The Veteran has not identified any additional potentially relevant evidence that is not associated with the claims file. In response to the Board's 2008 and 2011 remand instructions, additional medical records were obtained and additional examinations were performed. The Board is satisfied that there has been substantial compliance with the remand directives, such that the Board may proceed with review of the case. See Stegall v. West, 11 Vet. App. 268 (1998).

The Board finds that no additional assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff’d, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).

ORDER

For the period from November 8, 2003, to May 4, 2005, a rating in excess of 10 percent for left knee arthritis is denied.

For the period from May 4, 2005, to February 20, 2010 (excluding periods of a temporary total rating), a rating in excess of 30 percent for left knee arthritis, status post arthroscopy, is denied.

Since February 20, 2010 (excluding periods of a temporary total rating), a rating in excess of 60 percent for total left knee replacement, previously rated as left knee arthritis, status post arthroscopic surgery, is denied.

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For the period from November 8, 2003, to September 27, 2005, a separate 10 percent rating for right knee arthritis is granted, subject to the law and regulations governing the payment of monetary benefits.

For the period since September 27, 2005, a 20 percent rating, but no more, for right knee arthritis is granted, subject to the law and regulations governing the payment of monetary benefits.

L. HOWELL 
Veterans Law Judge, Board of Veterans' Appeals

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