Citation Nr: 1311286 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 08-33 902 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an increased disability rating in excess of 10 percent for right knee arthritis prior to May 2, 2011. 2. Entitlement to an increased disability rating in excess of 10 percent for instability of the right knee prior to May 2, 2011. 3. Entitlement to an increased disability rating in excess of 30 percent for right knee status post total arthroplasty since July 1, 2012. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran had active service from January 1973 to May 1973 and from August 1975 to September 1976. This matter comes before the Board of Veterans' Appeals (Board) from a March 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), in Togus, Maine. This appeal has subsequently been transferred to the RO in Detroit, Michigan. During the pendency of the appeal, the RO rendered a Supplemental Statement of the Case, granting a temporary total evaluation for replacement of the right knee, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5055. This temporary total evaluation is effective from May 2, 2011, until July 1, 2012. Thus, for that period, there remain no allegations of errors of fact or law for appellate consideration. Beginning July 1, 2012, the RO assigned a 30 percent disability rating, the minimum rating for post-operative knee replacement under Diagnostic Code 5055. This issue is addressed in the remand following this decision. The decision at this time is limited to the 10 percent ratings assigned prior to May 2, 2011. The issue of entitlement to an increased disability rating in excess of 30 percent for right knee status post total arthroplasty since July 1, 2012, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. For the time period prior to May 2, 2011, the Veteran's right knee disability was manifested by a complex macerated tear of the posterior horn and body of the medial meniscus as well as a complex macerated tear of the lateral meniscus with effusion and locking episodes. 2. For the time period prior to May 2, 2011, the Veteran's right knee instability more nearly approximated moderate instability. CONCLUSIONS OF LAW 1. The criteria for a 20 percent rating for right knee meniscal injury under Diagnostic Code 5258 have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5024, 5256, 5257, 5258, 5259, 5260, 5261, 5262 (2012) 2. The criteria for the assignment of a 20 percent rating for instability of the right knee under Diagnostic Code 5257 have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (b) (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the Court held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. In this case, the RO sent a letter to the Veteran in June 2007 with the VCAA notice requirements for his increased rating claims. In the letter, the Veteran was informed that the evidence necessary to substantiate the claim for an increased evaluation would be evidence showing that his disability was worse than the current evaluation contemplates. The letter also informed the Veteran that he must provide medical or lay evidence demonstrating a worsening of his disability and the impact on his employment and daily life, which can also be substantiated by sending statements from other individuals who are able to describe in what manner the disability has become worse. It also informed him that on his behalf, VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. The letter stated that he would need to give VA enough information about the records so that it could obtain them for him. In addition to the foregoing analysis, to whatever extent the decision of the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006), requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date, the Board notes that the June 2007 notice also addressed these matters. The Veteran has had ample opportunities to meaningfully participate in the adjudicative claims process. Any error or deficiency in this regard is harmless, and not prejudicial. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. Private medical records identified by the Veteran have been obtained and associated with the claims file, to the extent possible. The Veteran also did not indicate that he was in receipt of Social Security Disability benefits that warranted obtaining additional records. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim, as defined by law. The record indicates that the Veteran was afforded VA examination in February 2008 and the results of which have been included in the claims file for review. This VA examination involved review of the claims file and thorough examination of the Veteran. Therefore, the Board finds that the examination is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Notably, the Board's decision is limited to an evaluation of the Veteran's right knee disability for the time period before his total right knee replacement. The Board finds that no useful purpose would be served by obtaining another examination which retroactively evaluated the evidence for this time period. Given the foregoing, the Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the Veteran's claims. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). Importantly, the Board notes that the Veteran is represented in this appeal. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006). The Veteran has submitted argument and evidence in support of the appeal. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claims such that the essential fairness of the adjudication is not affected. II. Merits of the Claims The Veteran contends that his 10 percent disability rating for his service connected right knee disability and instability prior to May 2, 2011, do not accurately reflect its severity of symptomatology. Governing Law and Regulations Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). While the Veteran's entire history is reviewed when making a disability determination, where service connection has already been established and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that staged ratings are appropriate for an increased rating claim, when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. When evaluating joint disabilities rated on the basis of limitation of motion, VA may consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided. 38 C.F.R. § 4.14. It is possible, however, for a Veteran to have separate and distinct manifestations attributable to the same injury, which would permit a rating under several diagnostic codes. The critical element permitting the assignment of multiple ratings under several diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran's right knee disability is currently rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5010. This code is to be rated on limitation of motion of the affective part, as degenerative arthritis. Diagnostic Code 5003, degenerative arthritis, provides that degenerative arthritis that is established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Diagnostic Code 5260 pertains to limitation of flexion of the leg. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Diagnostic Code 5261, which contemplates limitation of extension of the leg, is also applicable in this instance. 38 C.F.R. § 4.71a, Diagnostic Code 5261. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. For purpose of rating disability from arthritis, the knee is considered a major joint. 38 C.F.R. § 4.45(f). When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. Under Diagnostic Code 5260 flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. 38 C.F.R. § 4.71a. The Board points out that separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint). See VAOPGCPREC 09-04 (Sept. 17, 2004). 38 C.F.R. § 4.71a, Diagnostic Code 5257 provides for the assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability, a 20 percent rating when there is moderate recurrent subluxation or lateral instability, and a 30 percent evaluation for severe knee impairment with recurrent subluxation or lateral instability. The Veteran is currently rated at 10 percent disability for the instability in his right knee. VA's General Counsel has stated that when a knee disorder is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257 and a Veteran also has limitation of knee motion which at least meets the criteria for a noncompensable evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5260 or 5261, separate evaluations may be assigned for arthritis with limitation of motion and for instability. However, General Counsel stated that if a Veteran does not meet the criteria for a noncompensable rating under either Diagnostic Code 5260 or Diagnostic Code 5261, there is no additional disability for which a separate rating for arthritis may be assigned. VAOPGCPREC 23-97 (July 1, 1997). If a rating is assigned under the provisions for other knee impairment (38 C.F.R. § 4.71a, Code 5257), a separate 10 percent rating may be assigned where some limitation of motion, albeit noncompensable, has been demonstrated. See VAOPGCPREC 9-98 (1998). Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Factual Background and Legal Analysis Historically, the Veteran incurred right knee injuries during active service. A July 1977 VA examination report established a diagnosis of internal derangement of the right knee manifested by probable effusion. An RO rating decision dated August 1977 granted service connection for right knee disability, and assigned an initial noncompensable evaluation. Thereafter, the RO received an arthrogram report dated August 1977 which revealed laceration of the posterior horn of the medial meniscus, small body effusion, and communicating popliteal cyst. Private treatment records described effusion and extreme lateral and medial laxity. The Veteran declined surgical treatment. A March 1978 RO rating decision awarded a 10 percent rating for right knee disability under Diagnostic Code 5257. A March 1999 VA examination report was significant for right knee effusion and swelling with crepitation. Notably, an October 1999 RO rating decision continued a 10 percent rating for right knee disability coded as Diagnostic Code "5010-5260." A February 2001 magnetic resonance imaging (MRI) scan was interpreted as showing synovial osteochondromatosis, joint space narrowing, abnormalities in the medial and lateral menisci, an anterior cruciate ligament (ACL) tear, partial posterior cruciate ligament tear (PCL), and effusion. A September 2001 VA examination report described considerable effusion with a loose mediolateral ligament. An October 2001 RO rating decision granted "service connection" for instability of the right knee, and assigned a 10 percent rating under Diagnostic Code 5257. A separate 10 percent rating under Diagnostic Code 5010 for traumatic arthritis was continued. The Veteran filed the current claim for an increased rating in April 2007 wherein he reported great pain and instability. The Veteran underwent a VA examination in February 2008 where he reported pain in his right knee with an intensity of 2 out of 10 scale. He reported occasional locking and instability. He stated he occasionally used a brace. Repetition increased the pain without additional loss of motion. The Veteran did not report a history of flare-ups. On physical examination, the Veteran wore a knee brace. The right knee demonstrated an approximate 15 degree valgus with swelling, effusion and tenderness. The examiner noted a cystic lump near the back of the right knee that was slightly tender. Crepitation was felt on movement. The patellar position was normal and the range of motion was 0 to 125 degrees with complaints of pain. An x-ray of the right knee revealed degenerative arthritis. See VA examination, dated February 2008. An August 2008 medical certification reflected that the Veteran held diagnoses of lumbosacral disc sciatica, cervical disc, carpal tunnel syndrome, ulnar neuropathy and osteoarthritis in the knees which limited his ability to sit, stand, bend, twist, etc. The Veteran was not able to work full-time, and required accommodations which included no lifting over 15 pounds, hourly adjustment of positions, sitting and standing options, and no constant gripping or squatting. In October 2008, the Veteran submitted a statement from his niece who described a decline in the Veteran's activity levels in the last two years. He limped around, had trouble getting up, and no longer performed activities he enjoyed such as dancing. Another statement from the Veteran's brother described the Veteran as experiencing knee buckling, a tilted walk, stumbling and falling. The Veteran was visibly in pain and could not walk or stand for prolonged periods. His disability had interfered with his ability to work in his vocational trade. A June 2010 MRI of the right knee revealed severe osteoarthritis with large spurs and extensive high-grade (grade 4) chondromalacia within the lateral compartment, large spurs and high-grade chondromalacia within the medial compartment and moderate spurring and high-grade (grade3-4) chondromalacia within the patellofemoral compartment. There was a complex macerated tear of the posterior horn and body of the medial meniscus and a complex macerated tear involving the entirety of the lateral meniscus. There was also a chronic ACL tear with associated anterior tibial translation. A large Baker's cyst with numerous internal large osseous and hypointense loose bodies, the largest measuring over 4 cm in greatest diameter, was found. There was also a large knee effusion. See Magnetic Resonance Imaging of Southfield MRI report, dated June 2010. The Veteran testified in June 2010 his right knee was getting worse. He stated that it impeded his ability to drive. He stated that the right knee locked or gave way. The Veteran used a knee brace which helped with stability. However, he stated that, without the brace, his right knee "gives out a lot." The Veteran's wife, G. D., testified that the Veteran dragged and kicked his leg out in order to walk and is unable to drive much. G. D. stated the Veteran was now wearing the knee brace 90 percent of the day and that the Veteran's instability had been getting worse in the past two to three years. See Decision Review Officer hearing transcript, dated June 2010. In a July 2010 letter from the Veteran's private physician, Dr. M. F. R., it was reported that the Veteran "has severe problems with right knee pain such that he has been advised to consider a right knee total arthroplasty..." See Dr. M. F. R. letter, dated July 2010. According to a March 2011 treatment report prior to his total right knee arthroplasty from a private physician, Dr. D. H. M., the Veteran was able to "extend his knee just about full but he could only can flex about 40 degrees before he starts wincing and moaning. We can take him to about 80 degrees." The x-rays revealed "[d]ramatic arthritic changes with end-stage lateral narrowing and considerable loose fragments posterior wards [were] noted." In April 2011, the Veteran was able to flex to about 70 or 80 degrees and extend to about 10 degrees although it was still uncomfortable. See Dr. D. H. M. private treatment record, dated March and April 2011. Finally, in May 2011, the Veteran underwent a right total knee arthroplasty with excision of loose bodies. See St. Mary Mercy Hospital Record, dated May 2011. In light of the evidence, the Board finds that the Veteran may be awarded a 20 percent rating under Diagnostic Code 5258 for tears of the medial and lateral menisci with effusion and locking episodes. The MRI examination reports reflect that the Veteran has a complex macerated tear of the posterior horn and body of the medial meniscus as well as a complex macerated tear of the lateral meniscus. He has a well-documented history of right knee effusion, and has credibly testified to locking episodes. His witnesses describe functional limitations of pain, limping, buckling, a tilted walk, falling episodes and an inability to stand or walk for extended periods of time which is consistent with the medical evidence of record, which reflected the medical need for a total knee replacement in May 2011. In the opinion of the Board, these findings more closely approximate the criteria for a 20 percent rating under Diagnostic Code 5258, which contemplates "dislocation "with frequent episodes of locking, pain and effusion into the joint. This is the maximum rating under this diagnostic code. The Board cannot find a higher rating still based upon limitation of motion. The Veteran's right disability is manifested by some limitation of motion and pain on motion. The clinical findings describe extension ranging from 0 to 10 degrees. Thus, a 10 percent rating could be assigned under Diagnostic Code 5261. However, at no point during the appeal period was the Veteran's extension of the right leg limited to 15 degrees as required for the 20 percent rating under Diagnostic Code 5261. There is no clinical finding indicating that the Veteran had extension limited to 15 degrees, and the Veteran and his witnesses have not described extension being limited to 15 degrees. Technically, there is no limitation of flexion to 45 degrees under Diagnostic Code 5260 to warrant a compensable rating. The clinical findings describe flexion ranging from 70 to 125 degrees. However, the March 2011 treatment record commented that, while the knee could flex to about 80 degrees, he started wincing and moaning at 40 degrees. Taking the functional limitations described by the Veteran's witnesses, the Board could also assign a 10 percent rating under Diagnostic Code 5261 based upon functional limitation of flexion to 40 degrees. However, the Board finds no basis for a higher rating still under Diagnostic Code 5261. There is no clinical evidence indicating that the Veteran had flexion limited to 30 degrees, and the Veteran and his witnesses have not described extension being limited to 30 degrees. As instructed in VAOPGCPREC 09-04, the Board may award separate 10 percent ratings under Diagnostic Codes 5260 and 5261. However, as meniscal injuries produce loss of motion, the Board cannot assign separate ratings under Diagnostic Codes 5260, 5261 and 5258 without violating the pyramiding principles of 38 C.F.R. § 4.14. See VAOPGCPREC 9-98 (Aug. 14, 1998). When the application of the combined ratings table is considered, the Board finds that it is most advantageous to the Veteran to award the single 20 percent rating under Diagnostic Code 5258. See 38 C.F.R. § 4.25, TABLE 1 - Combined Ratings Table. The Board also finds no further basis to provide a higher rating based upon functional impairment on use. The 2008 VA examination found that repetition did not decrease the range of motion beyond the criteria for a 10 percent rating under Diagnostic Code 5260 and 5261. As held above, the Board has specifically considered the effects of functional impairment for awarding a 20 percent rating under Diagnostic Code 5258, and any further compensation would constitute impermissible pyramiding. On the question of whether the Veteran is entitled to an evaluation in excess of 10 percent for his right knee instability based on the evidence of record relevant to the rating period on appeal, outlined above, the Board also finds that a 20 percent rating for moderate lateral instability is more appropriate. The Board also notes that the Veteran has testified as to the severity and near daily instability of the right knee with intermittent giving way. His witnesses have described knee buckling, a tilted walk, stumbling and falling. This evidence is consistent with the medical evidence of record, which reflects a history of right knee laxity, objectively confirmed menisci abnormalities, an ACL tear and partial PCL tear. However, the evidence of record indicates no more than a moderately unstable left knee as required for the current 20 percent evaluation. The actual clinic findings reflect loose medial lateral ligament stability, but stable anteroposterior movement. The Veteran's treating physicians did not include any findings relating to instability, and focused their attention on severe pain and motion limitation. The Veteran used a knee brace, but not always, and did not ambulate without any assistive device. In the opinion of the Board, the clinical findings and lay descriptions do not describe a right knee disability characterized by severe subluxation or lateral instability. The Board has also considered whether any other diagnostic code would allow for an increased rating for the Veteran's right knee instability. Diagnostic Code 5259 addresses removal of symptomatic semilunar cartilage, but there is no history of right knee surgery other than an arthrogram; thus, Diagnostic Code 5259 does not apply. Diagnostic Codes 5262 and 5263 do not apply, as there is no evidence of impairment of the tibia or fibula, and no evidence of genu recurvatum. As such, the Veteran would not be entitled to a higher disability evaluation under any other diagnostic code, and his claim is denied. In so holding, the Board has considered the credibility and competency of the Veteran and his witnesses. Their testimony is credible and consistent with the evidence of record and has been relied upon, in part, to award further compensation under Diagnostic Codes 5258 and 5257. To the extent it can be argued that their testimony describes entitlement to higher ratings still, the Board places greater probative weight to the findings of the private and VA physicians, who possess greater training and expertise than the Veteran and his witnesses in accurately measuring range of motion and describing clinical findings pertaining to a right knee disorder. In reaching the decision above the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against entitlement to an increased rating for the Veteran's right knee disability, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extraschedular consideration To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) . The provisions of 38 C.F.R. § 3.321(b) state as follows: Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service- connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. VA's General Counsel has stated that consideration of an extra-schedular rating under 3.321(b)(1) is only warranted where there is evidence that the disability picture presented by the Veteran would, in that average case, produce impairment of earning capacity beyond that reflected in the rating schedule or where evidence shows that the Veteran's service-connected disability affects employability in ways not contemplated by the rating schedule. See VAOPGCPREC 6-96 (Aug. 16, 1996). In Thun, the Court further explained that the actual wages earned by a particular veteran are not considered relevant in the calculation of the average impairment of earning capacity for a disability, and contemplate that veterans receiving benefits may experience a greater or lesser impairment of earning capacity than average for their disability. The Thun Court indicated that extraschedular consideration cannot be used to undo the approximate nature of the rating system created by Congress. The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. However, the Board is not precluded from raising this question, see Floyd v. Brown, 9 Vet. App. 88 (1996), and addressing referral where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Here, the Veteran and his witnesses describe right knee pain with functional limitations of limitation of motion, limping, buckling, a tilted walk, falling episodes and an inability to stand or walk for extended periods of time. The Board has relied on all of these facts to assign separate ratings under Diagnostic Codes 5257 and 5258. Thus, the Board finds that all credibly demonstrated symptomatology and functional impairments have been adequately considered in the assigned schedular evaluations. In fact, there is some overlapping of symptomatology to support the ratings assigned under Diagnostic Codes 5257 and 5258. As such, there is no basis for extraschedular referral in this case. See Thun, 22 Vet. App. 111, 114-15 (2008). ORDER A rating of 20 percent for right knee meniscal injury under Diagnostic Code 5258 prior to May 2, 2011 is granted. A rating of 20 percent right knee instability under Diagnostic Code 5257, is granted prior to May 2, 2011, subject to the regulations governing the payment of monetary benefits. REMAND A remand is required to decide the remainder of this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. The VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a) 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (2012). The Veteran is currently rated at 30 percent for service-connected right knee status post total arthroplasty under Diagnostic Code 5055. 38 C.F.R. § 4.71(a). The Board notes that the Veteran was last afforded a VA examination of his right knee in February 2008. In May 2011, he underwent a right knee total arthroplasty with excision of loose bodies. He has not been afforded a VA examination since his surgery. Therefore, the Veteran should be afforded a VA examination to determine the current severity of his service-connected right knee status post total arthroplasty. 38 C.F.R. § 3.159(c)(4) (2012); Green v. Derwinski, 1 Vet. App. 121 (1991) (duty to assist may include conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one). Where the record does not adequately reveal the current state of disability, the fulfillment of the duty to assist includes providing a thorough and contemporaneous medical examination that considers the claimant's prior medical examinations and treatment. See Floyd v. Brown, 9 Vet. App. 88, 93 (1996); Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994). The Board next notes that the most recent medical record regarding his right knee was the May 2011 operative report from St. Mary Mercy Hospital. Therefore, while on remand, all outstanding records should be obtained for consideration in the Veteran's appeal. Finally, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for total disability based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record. Here, the Board finds that the evidence of record at this time does not reasonably raise an issue of entitlement to TDIU. The Veteran and his witnesses clearly describe job interference as a truck driver due to right knee disability. However, the record references the Veteran as having a truck accident with an August 2008 medical certification for rehabilitation services listing 6 different disabilities other than right knee disability as contributing factors for not being able to work. The Veteran is hereby advised that he is free to raise the issue of TDIU at any time during the appeal period by requesting RO consideration of the issue, or presenting a clear statement that he believes that his right knee disability prevents him from obtaining or maintaining substantially gainful employment. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate private and VA medical facilities, and obtain and associate with the claims file all outstanding records of treatment since May 2011. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Notice must be provided to the Veteran and his representative. The notice must contain the identity of the records VA was unable to obtain, an explanation of the efforts VA made to obtain the records, a description of any further action VA will take regarding the claim and a notice that the Veteran is ultimately responsible for providing the evidence. The AMC should also inform the Veteran that he can also provide alternative forms of evidence. 2. Once all outstanding treatment records have been obtained and associated with the claims file, schedule the Veteran for a VA examination to determine the current severity and functional effects of his right knee disability. All symptoms and functional effects of the Veteran's right knee disability should be set forth in detail. In addition to range of motion testing, the examiner should comment on whether there is any instability of the right knee and, if so, the severity of same. The examiner should also address the severity and functional effects that are caused by any weakness of the Veteran's right knee. The examiner should indicate the degree to which the Veteran's knee disability impacts his ability to engage in substantially gainful employment. 3. After completion of the foregoing and undertaking any further development deemed warranted by the record, the Veteran's claim should be readjudicated based on the entirety of the evidence. The Veteran and his representative should then be issued a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ T. MAINELLI Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).