Citation Nr: 1313047 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 09-14 814 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for herniated nucleus pulposus, L4-5, with marked degenerative changes and scoliosis (hereinafter, "low back disorder"). 2. Entitlement to an increased rating for degenerative arthritis, right knee, status-post total knee replacement (TKR), currently evaluated as 30 percent disabling prior to September 1, 2012, and 60 percent disabling thereafter. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The Veteran served on active duty from September 1941 to October 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which, in pertinent part, continued the assigned 30 percent rating for the Veteran's right knee disorder, and found that new and material evidence had not been received to reopen the previously denied claim of service connection for a low back disorder. This case was previously before the Board in March 2011, at which time the Board found that the issue of entitlement to TDIU was for appellate consideration pursuant to the holding of Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board also found that new and material evidence had been received to reopen the low back claim, but that further development was required regarding the underlying service connection claim, as well as the right knee and TDIU claims. Consequently, the Board remanded the case for the Veteran to be afforded adequate notification as to the elements necessary to substantiate a TDIU claim, obtain any records available from the Social Security Administration (SSA), and to afford the Veteran VA medical examinations which adequately addressed the current appellate claims. In February 2012, the Board remanded the claim again as the VA examinations were not accomplished. The examinations were accomplished in September 2012 and December 2012. By means of a rating decision dated December 2012, the RO awarded a 60 percent evaluation for service-connected right knee disability, status post TKR, effective September 1, 2012. A review of the Virtual VA electronic storage system does not reveal any additional evidence pertinent to the claims on appeal. 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 TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. The Veteran's right TKR residuals have aggravated his low back disorder, diagnosed as herniated nucleus pulposus, L4-5, with marked degenerative changes and scoliosis, beyond the normal progress of the disorder. 2. For the entire appeal period, the Veteran's right TKR residuals have more nearly approximated chronic residuals of severe weakness due to recurrent effusions with decreased endurance and stability on use. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for herniated nucleus pulposus, L4-5, with marked degenerative changes and scoliosis (low back disorder) have been met. 38 U.S.C.A. §§ 1110, 1112, 5107(b) (West 2002); 38 C.F.R. § 3.310 (2012). 2. The criteria for a 60 percent rating, but no higher, for degenerative arthritis, right knee, status-post TKR, have been met for the entire appeal period. 38 U.S.C.A. § 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321(b), 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5055 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks to establish his entitlement to service connection for a low back disorder as he alleges that such was caused or aggravated by a gait disturbance resulting from his service-connected right knee disability. He also contends that he is entitled to a higher rating for his service-connected right knee TKR residuals. Finally, the Veteran contends that he is unable to obtain and maintain substantially gainful employment as a result of his service-connected disabilities. VA's Duties to Notify and Assist As provided for by the 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 and 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, 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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). For an increased-compensation claim, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). With respect to the low back disorder claim, the Board has granted in full the benefit sought on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). Thus, there is need to discuss any potential duty to notify or duty to assist error. With respect to the increased rating claim for right TKR residuals, the Veteran filed his claim for an increased rating in April 2007. Thereafter, an RO letter dated April 2007, which was sent prior to the initial adjudication in August 2007, advised the Veteran of the evidence and information necessary to substantiate his increased rating claim as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, such letter advised him of the information and evidence necessary to establish an effective date in accordance with Dingess/Hartman, supra. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Relevant to the duty to assist, the RO has obtained the Veteran's service treatment records, his relevant VA treatment records and all private treatment records identified by the Veteran as relevant to his claim. In this regard, the Board received notice from the SSA in May 2011 that they did not have any relevant records in their possession. In a November 2011 SSOC, the RO informed the Veteran that SSA had no relevant records in their possession. Thus, VA has satisfied its duty to assist in this regard. Moreover, the Veteran has not identified any additional, outstanding records that have not been requested or obtained. Additionally, the Veteran was afforded VA examinations in July 2007 and September 2012. The September 2012 VA examination report contains all findings necessary to evaluate the increased rating claim on appeal but, as addressed in the remand below, is inadequate as it pertains to the TDIU aspect of the claim. Neither the Veteran nor his representative has alleged that this examination is inadequate for purposes of evaluating right TKR residuals. As a result of the September 2012 examination, the Veteran has been awarded the maximum available schedular rating effective to the day of examination. The results from VA examinations are also supplemented by lay statements and private examination reports, including yearly follow-up orthopedic surgeon evaluations following the right TKR. Therefore, the Board finds that the examination reports of record are adequate to adjudicate the Veteran's increased rating claim and that no further examination is necessary. Furthermore, the Veteran has not asserted, and the evidence does not suggest, that his symptoms have materially increased in severity since the most recent evaluation in 2012. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect.); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Pursuant to Board remand directives, the agency of original jurisdiction (AOJ) has provided the Veteran notification as to the elements necessary to substantiate a TDIU claim, exhausted its efforts to obtain any records available from the SSA, and afforded an adequate VA examination for purposes of evaluating right TKR residuals. As such, the Board finds substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. 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). Applicable law and regulation Service connection is established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during periods of active wartime service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.309(a). In general, service connection requires a claimant to satisfy a three element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called 'nexus' requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In some circumstances, certain chronic diseases listed at 38 C.F.R. § 3.309(a) may be presumed to have been incurred in service if manifest to a compensable degree within one year from discharge from service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. § 3.309(b). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. However, the continuity and chronicity provisions of 38 C.F.R. § 3.303(b) only apply to the chronic diseases enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) (applying 38 C.F.R. § 3.303(b) to a chronic disease not listed in 38 C.F.R. § 3.309(a) as "a substitute way of showing in-service incurrence and medical nexus"). The Veteran filed an application to reopen a prior final denial of a service connection claim for a low back disorder in April 2007. In part, he asserts that his low back disorder is caused or aggravated by his service-connected right knee disability. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a) (in effect since October 10, 2006). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The provisions of 38 C.F.R. § 3.310(b) also state that service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, separate ratings may also be assigned for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. See generally 38 U.S.C.A. § 5110(b)(2). As will be discussed herein, the Veteran's increased rating claim was received in April 2007. Included within 38 C.F.R. § 4.71a are multiple DCs that evaluate impairment resulting from service-connected knee disorders. The Veteran filed his claim for an increased rating in April 2007. The criteria of DC 5055 evaluate impairment arising from the prosthetic replacement of a knee joint. For one year following the implantation of a knee prosthesis, a 100 percent disability rating is assigned. Thereafter, the minimum disability rating which may be assigned, post-knee replacement, is 30 percent. A 60 percent disability rating is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. With intermediate degrees of residual weakness, pain or limitation of motion, adjudicators are instructed to rate by analogy to DCs 5256 (knee ankylosis), 5261 (limitation of leg extension), or 5262 (impairment of the tibia and fibula). VA regulations also instruct that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. Notably, the Court has held that pain alone does not equate with functional loss under 38 C.F.R. §§ 4.40 and 4.45 but may cause functional loss if affecting some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Painful motion with joint or periarticular pathology and unstable joints due to healed injury are recognized as productive of disability entitled to at least a minimal compensable rating for the joint. 38 C.F.R. § 4.59. The application of 38 C.F.R. § 4.59 is not limited to arthritis-related claims. Burton v. Shinseki, 25 Vet. App. 1 (2011). In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Notably, the benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility. See 38 C.F.R. § 3.102. Factual Summary The Veteran served on active duty from September 1941 to October 1945. He had a pre-service history of a right knee injury which was aggravated by a severe right knee strain during service. He was subsequently diagnosed with Pellegrini Steda's disease (calcification of the internal collateral tibial ligament). The service treatment records are negative for a back disorder. On his original application for VA compensation filed in July 1947, the Veteran reported a history of inservice treatment for a back injury. A March 1948 VA examination was significant for the Veteran favoring his right leg in flexion and extension. Thereafter, the record reflects the Veteran's continuing reports of right knee symptomatology, which included right knee stiffness and cramping as well as difficulty with knee bending while walking and going up steps. Private and VA clinical findings were significant for chondromalacia patella, but were otherwise unremarkable. In pertinent part, an October 1962 VA clinic record noted the Veteran's report of occasional low back pain. He also described right knee pain which radiated into his legs as well as into his back, neck and head. An evaluation in 1963 found no underlying pathology for a back disability, and assessed the Veteran with a conversion reaction. In 1972, the Veteran was diagnosed with dextroscoliosis of the mid-lower lumbar region with ossification of the paravertebral ligament at the L3/L4, osteophytes, and disc disease at L5-S1. A diagnosis of lumbosacral intervertebral disc syndrome (IDS) was provided in 1979. In 1992, the Veteran was diagnosed with diffuse idiopathic skeletal hyperostosis (DISH). An August 1995 VA examination provided a diagnosis of degenerative arthritis of the lumbar spine with spontaneous fusion of the L2, L4 and L5 interspaces. An x-ray examination in 1998 was interpreted as showing degenerative disc and joint disease at L1-S1, marked left lateral exostosis at L2-L4, right lateral exostosis at L1/L2, L3/L4 and L5/S1, possible old lateral compression fracture at L3, and osteopenia. He was diagnosed with ankylosing spondylitis in November 2002. The Veteran underwent bilateral TKR's in February 2004. Follow-up examinations reflected recurrent effusions of the right knee requiring aspiration of fluid. The effusions were attributable to possible stretching of scar tissue. On VA examination in October 2004, the Veteran generally described not having any significant difficulties with his right knee except for some residual fluid requiring aspiration. He used a cane around the house, and a walker in public, for extra security and balance. On examination, the Veteran walked with a somewhat slow gait walking slightly forward flexed using his walker. The right knee, which was stable to varus and valgus stress, demonstrated motion from 0 to 115 degrees. There was no patella grind, swelling or effusion. The quadriceps and hamstrings demonstrated 5/5 strength. An x-ray examination showed that the total knee arthroplasty implant was in excellent position. The VA examiner described the Veteran as having an excellent total knee arthroplasty which was functioning quite well with excellent range of motion and significant pain relief. A February 2005 private orthopedic examination report noted that the Veteran's right knee still swelled a bit. There was motion from 0 to 120 degrees. X-ray examination showed well-positioned implants with no evidence of loosening. In October 2005, the Veteran filed a claim for an increased rating for his right knee disability. Thereafter, in a November 2005 rating decision, the RO granted a temporary evaluation of 100 percent effective February 9, 2004, based on surgical or other treatment necessitating convalescence, and a schedular 100 percent rating was awarded for one year beginning April 1, 2004, for replacement of the knee joint. A 30 percent evaluation was assigned thereafter, effective April 1, 2005. The Veteran did not enter a notice of disagreement with respect to the assigned ratings. Moreover, while a November 2005 VA examination report and June 2006 addendum were associated with the claims file within one year of the issuance of such decision, such pertain to the Veteran's back as opposed to his right knee and thus does not constitute new and material evidence with respect to the Veteran's increased rating claim. 38 C.F.R. § 3.156(b) (when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period); Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). A November 2005 VA examination included the Veteran's report of weakness of his lumbar spine as well as both lower extremities. He described being able to ambulate for only short distances, and wearing a brace on his right lower extremity. On examination, the Veteran had a slow, right lower extremity limping gait. His lumbar spine demonstrated diffuse tenderness and muscle spasm with forward motion limited to 30 degrees. His motor examination was limited secondary to bilateral TKRs. There was decreased sensory function along the right L5-S1 distribution. The examiner diagnosed degenerative disc disease of the lumbar spine with lumbar radiculopathy. A December 2005 VA clinic record noted the Veteran's report of right knee pain and swelling. An orthopedic consultation later that month noted right knee motion from 0 to 100 degrees with 4/5 strength in all motor groups tested. X-ray examination was interpreted as showing a cemented total knee arthroplasty in good position with a resurfaced patella. The examiner provided an impression of status post right TKR with persistent right knee and low back pain. A March 2006 orthopedic consultation included the Veteran's complaint of being unable to walk for significant periods of time. The examiner had the impression that the Veteran's lower extremity pain was related to his low back, and ordered a magnetic resonance imaging (MRI) scan to rule out neurogenic claudication. A July 2006 clinic record noted the presence of fairly good-sized effusion of the right knee. There was motion from 0 to 90 degrees, antero-posterior (AP) laxity and 4/5 strength. An MRI examination demonstrated chronic compression of left L3 body, multi-level degenerative spondylosis, L2 body hemangioma, and L2-4 lumbar stenosis. A September 2006 neurosurgery consultation noted that motor examination was full and symmetrical. A November 2006 private consultation included the Veteran's report of right lower extremity numbness and weakness. Examination noted that the Veteran moved with difficulty and had limited motion of the spine. He wore a right leg brace. In December 2006, the examiner noted that the Veteran's knees looked well-balanced and well-cemented with no evidence of loosening. There was motion from 0 to 120 degrees with excellent stability and good strength in full knee extension. Some knee swelling was noted. In January 2007, the examiner commented that the Veteran's right lower extremity symptoms may be radicular in nature. A December 2006 orthopedic surgeon follow-up examination found right knee motion from 0 to 125 degrees with excellent stability, flexion and extension. There was good quadriceps strength. The Veteran denied pain except when active and having knee swelling. X-ray examination showed a well-positioned implant with no loosening. The examiner provided an impression of persistent occasional swelling status post TKR. The examiner did not think that the Veteran's right knee swelling was implant-related. A February 2007 physical therapy consultation noted the Veteran to have a normal gait. He described functional limitations of being unable to walk without his walker more than 20 to 30 feet, and being unable to stand for more than 2-3 minutes. His pain prevented sleeping more than 4-6 hours. The examiner commented that his signs and symptoms were consistent. A March 2007 orthopedic surgeon consultation reflected the Veteran's report of right leg swelling and numbness which he attributed to the right TKR. He later denied knee pain, but described just having numbness instead. VA received the Veteran's current claim for an increased rating for his right knee in April 2007. On VA examination in July 2007, the Veteran described right anterior lateral knee pain which worsened with walking. He was unable to walk more than 10 feet without his walker or more than 100 feet with his walker. He used a walker at all times, except for inside the house for short distances. He was wearing a neoprene, Palumbo-type brace. He reported knee pain with swelling which he treated with an ice pack, which was probably half the time. On examination, the Veteran had a short-based gait. He relied on his walker. The lower extremity alignment was normal. There was 4/5 strength in flexion and extension with some lack of strength at the knee. Range of motion was from 0 to 115 degrees actively and passively with mild pain. The knee was stable to varus and valgus stress. There was minimal swelling. The patella tracked smoothly. Lachman's and McMurray's tests were negative. X-ray examination showed a well-fixed, well-positioned total knee arthroplasty without evidence of mechanical failure or malalignment. The examiner offered diagnoses of right knee TKR with residual swelling and pain without limitation of motion, and weakness of the right lower extremity contributing to decreased endurance and stability of the right knee. On VA orthopedic consultation in December 2007, the Veteran denied right knee pain but reported recurrent swelling. He described numbness and tingling in his entire right lower extremity and low back pain. Examination of the right lower extremity revealed no gross deformity to visual inspection with no palpable effusion. The right knee was stable to varus and valgus stress in flexion and extension. The Veteran was not tender over the pes anserine, greater tubercle or tibial tubercle. He described subjective paresthesia. X-ray examination was significant only for dystrophic soft tissue calcification anteriorly within the quadriceps tendon to the superior pole of the patella. The examiner recommended that the Veteran wear a knee sleeve for comfort, and use a rolling walker as necessary. A March 2008 orthopedic surgeon consultation reflected the Veteran's report of some weakness and numbness in the lateral aspect of his right leg. The Veteran had no interest in intervention for his spinal stenosis. X-ray examination showed a well-positioned implant with no evidence of loosening. On VA orthopedic consultation in December 2008, the Veteran reported pain and swelling on the lateral aspect of the right knee. The Veteran had been very happy with the results of the TKR. It was noted that the Veteran had spinal stenosis with neurologic claudication of the right lower extremity. Examination of the right knee showed range of motion from 0 to 120 degrees. There was no erythema or signs of infection. The examiner diagnosed status post total knee "doing well." An April 2009 orthopedic surgeon consultation reflected the Veteran's report of being really happy with the results of his right TKR. He used ice treatment. A July 2009 physical medicine reevaluation record included the Veteran's report of right lower extremity swelling with tightness of skin, and some burning, for 3 to 4 days per week. He was unsteady when using a rolling walker. Examination resulted in impressions of multilevel cervical and lumbar spondylosis with severe spurring and severe facet arthropathy, right lumbar radicular symptoms, and right lower extremity swelling - thrombus possible. A September 2009 record included the Veteran's report that a hospitalization ruled out deep venous thrombosis (DVT) as the prior cause of his right lower extremity swelling. A November 2009 VA clinic record noted that the Veteran was independent in his activities of daily living, and was still driving. He reported a sore right knee in February 2010. He denied a recent history of falls in July 2010. A January 31, 2011 VA clinic record noted that the Veteran was using a wheelchair due to bilateral knee pain and walking difficulty. A March 2011 mobility assessment included the Veteran's report of being able to walk inside his home, but otherwise using a 4 wheel walker. He did not demonstrate a gait abnormality on observation. He reported being unable to move his legs, but then reported being able to drive. The Veteran was unable to perform a timed mobility test. However, his use of a walker showed an even gait pattern with access energy need or difficulty. A power motor (PM) scooter was not recommended. A January 2010 orthopedic surgeon consultation noted that the Veteran had a recent history of a fall after attempting to help his spouse from falling. It was noted that the Veteran had bilateral TKRs which had served him well. An April 2011 VA orthopedic consultation noted that the Veteran's bilateral lower extremity pain was primarily secondary to chronic atraumatic low back pain. He had a decreased ability to perform weightbearing activities having to stop frequently with short distances secondary to pain and radicular symptoms of the lower extremities, which radiated from the lower back to the feet. Examination of the right lower extremity showed motion from 0 to 120 degrees. There was no effusion or tenderness to palpation. The ligaments were stable to valgus/varus stress. The Veteran had significant pain with straight leg raise. There was mild, 4/5 weakness of both lower extremities. The examiner offered a diagnosis of severe, chronic low back degenerative joint/disc disease with radiculopathy, status post bilateral TKR doing well. The examiner explained that the Veteran's pain was primarily secondary to radicular symptoms from the low back, and the Veteran expressed the need for a mechanical power wheelchair secondary to decreased ability to ambulate with a rolling walker. The examiner agreed that the Veteran needed a power wheelchair secondary to his radicular symptoms. However, the Veteran was described as having no significant abnormalities with his TKRs. A January 2011 orthopedic surgical consultation noted that the Veteran's right knee continued to hurt. On examination, the right knee was tender over the lateral retinaculum. There was crepitus with flexion and extension. X-ray examination showed some hypertrophic bone formation on the lateral aspect of the patella articulating with the femoral component. The surgeon offered partial bone removal of the lateral facet of the patella, but the Veteran declined. A February 2012 orthopedic surgical consultation noted the Veteran's report of intermittent right knee swelling treated with ice packs with good relief. Examination demonstrated mild swelling with satisfactory range of motion in good stability. X-ray examination demonstrated an extensive lateral patellar shelf which may have been the source of mild patellar pain and swelling. The examiner offered impressions of chronic, low-grade recurrent right knee effusions, status post TKR by 8 years with excellent results, and hypertrophic lateral patellar shelf with possible arthritis. The Veteran's right knee was injected at the superior lateral portal with Marcaine and Depo Medrol. On September 1, 2012, the Veteran underwent VA examination with benefit of review of his claims folder. The Veteran described pain and weakness of his low back with numbness of the lower extremities. He denied a history of back trauma. He used a wheelchair on a constant basis. He also complained of constant right knee aching and swelling with walking difficulty. His pain increased with activity. On examination, the right knee demonstrated flexion to 90 degrees with objective evidence of painful motion at 0 degrees. Extension was limited to 15 degrees with evidence of painful motion at 0 degrees. The Veteran was unable to perform repetitive testing due to pain and weakness. The right knee demonstrated functional impairment due to less movement than normal, weakened movement and pain on movement. There was 4/5 strength in all lower extremity muscle groups bilaterally. There was also decreased sensory examination along the L2-S1 nerve distributions. There was no muscle atrophy. The right knee demonstrated tenderness or pain to palpation with 4/5 weakness in flexion and extension. There was normal anterior, posterior and medial-lateral stability. The VA examiner commented that the Veteran's TKR residuals consisted of severe painful motion or weakness. However, functioning was not so diminished that amputation with prosthesis would equally serve the Veteran. It was also commented that the Veteran's weakness and pain of the back prevented him from being able to get out of his wheelchair. The examiner opined that the Veteran' back disorder was less likely than not incurred in or caused by an in-service injury, event, or illness. In this regard, he indicated that the Veteran's back disorder, diagnosed as severe ankylosing spine with severe degenerative disease is a multifactorial condition with a genetic component and, given the Veteran had no history of a lower back injury in the military, it is unlikely that his degeneration and ankylosis would be incurred by normal activity during his military service. With respect to a causal relationship between the low back disability and the residuals of service-connected right TKR, the examiner provided the following opinion: Problems with his knees could certainly have aggravated his back condition as his knee problems would have changed his gait and also led to weakening in his BLE both which could increase lower back stress and further degenerative changes. However, I would be left to mere speculation as to the extent of the changes this aggravation would cause. He has severe degenerative changes in his spine with ankylosis and I would be unable to determine exactly to what extent this was further aggravated by his knees. In an addendum opinion dated December 2012, the VA examiner provided the following opinion regarding the impact of the Veteran's bilateral knee disability on his ability to work: Veteran cannot perform physical manual labor due to his bilateral total knee replacements. He cannot lift heavy objects over 20 pounds, climb stairs, stand for long periods of time, or knee on his knees. However, he would be expected to be able to perform desk jobs and sedentary type work. The record also reflects several other assessments that the Veteran's low back disability may be secondary to his right knee disability. A physician opinion in 1979 asserted that chiropractic practice and science posited that structural and neurologic effects may arise from specific segments and/or musculoskeletal lesions which, in turn, mechanically altered the position or motion of the musculoskeletal system. It was felt that the Veteran's right knee disability was a contributing factor to recurrent low back pain and spinal subluxations. This same physician stated that the Veteran's mild low back pain "seemed" to be the result of the right knee disability in a 1989 statement. In November 1982, a VA clinic record included a physician statement that the Veteran's back pain was probably secondary to his right knee disability. Another chiropractor opinion in March 2003 stated that excessive wear to the Veteran's lumbar spine could be attributed to long-term gait changes caused by the right knee injury. A November 2006 private examiner stated that an altered gait could certainly contribute to placing stress on the spine, which could aggravate pain and potentially aggravate degenerative changes as well as ankylosing spondylitis, the latter which appeared to be the Veteran's primary problem. However, the degree of aggravation could not be determined. A March 2007 orthopedic surgeon opinion found that it was reasonable to consider all of the Veteran's orthopedic maladies to be due to his service-connected right knee disability, which had caused him to place all of his weight on his left leg. The Veteran's degenerative arthritis of the low back was described as causing numbness and swelling of the right leg. An article submitted by the Veteran described the lumbar spine as a spring similar to the letter S, which could cause disc problems and back problems when strained and/or misaligned. However, a June 2006 VA examiner opined that it was very unlikely that the Veteran's low back pain was related to his knee injuries as the diffuse degenerative disc disease of the lumbar spine was age-related. A December 2006 private examiner commented that he could not say whether or not the Veteran's knees led to further disability of the neck or back, but noted that the Veteran's body habitus contributed to significant arthritis. Low back disorder The Board initially finds that service connection for a low back disorder on a direct basis is not warranted. In this regard, his service treatment records are negative for a back injury and the September 2012 VA examiner opined that the Veteran' back disorder was less likely than not incurred in or caused by an in-service injury, event, or illness. In this regard, he indicated that the Veteran's back disorder, diagnosed as severe ankylosing spine with severe degenerative disease is a multifactorial condition with a genetic component and, given the Veteran had no history of a lower back injury in the military, it is unlikely that his degeneration and ankylosis would be incurred by normal activity during his military service. However, on review of the entire evidentiary record, the Board finds that the evidence is in equipoise as to the finding of whether the Veteran's low back disorder is proximately due to his service-connected right knee disability. The Veteran has a long-standing history of complaints of functional gait impairment due to his service-connected right knee disability. There is medical evidence of record reflecting that a gait impairment could be productive of producing structural stress on the lumbar spine. The question, however, is whether in this particular case the Veteran's service-connected right knee disability has been of such severity as to cause or aggravate his low back disorder. There are opinions for and against this claim which do not provide any definitive answers. For example, there are various assessments that the Veteran's right knee disability has been a contributing factor to recurrent low back pain and spinal subluxations, "seemed" to cause mild low back pain, "probably" caused back pain, "could" be the cause of lumbar spine disability, or that it is "reasonable" to attribute the low back disability to the right knee disorder. The most definitive opinion consists of the June 2006 VA examiner statement that it was very unlikely that the Veteran's low back pain was related to his knee injuries as the diffuse degenerative disc disease of the lumbar spine was age-related. The most recent examination, dated September 2012, found that the Veteran's current right TKR residuals consisted of severe painful motion or weakness, and opined that the Veteran's "bilateral" knee TKRs "could certainly" have aggravated his back condition due to gait impairment and an increase in lower back stress. Unfortunately, the September 2012 VA examination is inadequate for rating purposes due to the fact that the VA examiner considered the impact of the nonservice-connected left knee disorder. This examiner also could not provide an opinion regarding the extent of aggravation. Therefore, given the current diagnosis of right TKR residuals consisting of severe painful motion or weakness and the indication that a gait impairment could be productive of structural stress on the lumbar spine, the Board resolves reasonable doubt in favor of the Veteran by finding that the Veteran's right TKR residuals have aggravated his lumbar spine disability beyond the normal progress of the disorder. Therefore, service connection for such disorder on a secondary basis is warranted. The Board notes in passing that, although 38 C.F.R. § 3.310(b) indicates that VA will not concede aggravation unless the baseline severity of the nonservice-connected disease or injury is established, the next sentence indicates that the rating activity will determine the baseline and current levels of severity and determine the extent of aggravation. Given that the Board is not bound by the RO's determination that aggravation is not present, and as the Board does not assign ratings in the first instance, the Board reads 38 C.F.R. § 3.310(b) as permitting the Board to determine whether service connection on an aggravation basis is warranted, with the RO having the responsibility for determining the degree of aggravation in assigning the rating. Right TKR residuals The record reflects that, by most physician accounts, the Veteran's right TKR was considered successful. His x-ray examinations from 2004 to the current time have been described as showing a well-positioned implant with no loosening. The clinical findings have consistently shown no clinical instability except for some laxity found in July 2006. The right knee ranges of motion have been no worse than 0 degrees of extension to 90 degrees of flexion prior to the VA examination in September 2012. The Veteran has demonstrated variable strength in his right lower extremity. For example, an October 2004 VA examination described 5/5 strength while a November 2006 evaluation described "good" strength in full knee extension. Otherwise, examiners in April 2005, December 2005, July 2006, July 2007, April 2011 and September 2012 described mild 4/5 strength. Overall, these findings do not describe "severe" weakness of the right lower extremity. However, a VA examiner in July 2007 described the Veteran's right lower extremity weakness as contributing to decreased endurance and stability of the right knee. After the TKR, the Veteran began using a walker for balance security and subsequently became essentially dependent upon walker and/or wheelchair use. In February 2007, the Veteran described functional limitations of being unable to walk without his walker more than 20 to 30 feet, or standing for more than 2 to 3 minutes. It was commented that the signs and symptoms of disability were consistent with the Veteran's reported functional limitations. The Veteran also has a history of recurrent right knee effusions that result in pain. In September 2012, the VA examiner measured 4/5 weakness in right knee flexion and extension but provided opinion that the Veteran demonstrated right TKR residuals of severe painful motion or weakness. The Board cannot find any appreciable increased severity of right knee disability during the appeal period. Additionally, none of the clinical findings or opinions clearly differentiates between the effects of service-connected right TKR and the neurologic deficit of the right lower extremity. The Board, therefore, attributes all signs of disability to the right TKR residuals. See Mittleider v. West, 11 Vet. App. 181 (1998) (finding that when it is not possible to separate the effects of the service-connected condition from a nonservice-connected condition, 38 C.F.R. § 3.102, which requires that reasonable doubt on any issue be resolved in the Veteran's favor, clearly dictates that such signs and symptoms be attributed to the service-connected condition). Applying the criteria to the facts of this case, and with application of the approximating principles of 38 C.F.R. § 4.7, the benefit of the doubt doctrine of 38 U.S.C.A. § 5107(b) and functional limitations pursuant to 38 C.F.R. §§ 4.40 and 4.45, the Board finds that the Veteran's right TKR residuals have more nearly approximated chronic residuals of severe weakness due to recurrent effusions as well as decreased endurance and stability for the entire appeal period. Thus, the Board assigns the maximum schedular rating under DC 5055 for the entire appeal period. 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). 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) 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 has been awarded the maximum schedular evaluation for right TKR residuals under DC 5055. The Veteran's right TKR residuals primarily consist of pain, recurrent effusions, mild right knee weakness on clinical examination and some evidence of instability. However, the Veteran also has significant functional limitations with lack of endurance and an inability to walk more than short distances without the use of an ambulatory aid. In the opinion of the Board, the Veteran has not directly met the criteria for a 60 percent schedular rating under DC 5055, but the Board has found his entitlement to a 60 percent rating under DC 5055 when taking into account the approximating principles of 38 C.F.R. § 4.7 as well as the provisions of 38 C.F.R. §§ 4.40 and 4.45. See Mitchell, supra. Thus, the Board finds that the currently assigned schedular rating reasonably describes the Veteran's disability level and symptomatology. As such, there is no basis for extraschedular referral in this case. Finally, the issue of entitlement to TDIU has been raised as a component of the increased rating claim. Rice, 22 Vet. App. 447 (2009). This issue is addressed in the remand following this decision. ORDER Service connection for herniated nucleus pulposus, L4-5, with marked degenerative changes and scoliosis (low back disorder) is granted. For the entire appeal period, a 60 percent rating, but no higher, for degenerative arthritis, right knee, status-post TKR is granted, subject to applicable law and regulations governing the award of monetary benefits. REMAND The Veteran claims that his service-connected disabilities render him unable to obtain and maintain substantially gainful employment. As a result of the Board's decision above, the Veteran is eligible for assignment of a schedular TDIU rating under 38 C.F.R. § 4.16(a) for the entire appeal period. The Board finds that further medical opinion is required. In providing an employability opinion in December 2012, the VA examiner considered the impact of the Veteran's nonservice-connected left knee TKR upon employability which cannot be considered in a TDIU analysis. Additionally, in light of the award of service connection for a lumbar spine disability, the Board is of the opinion that an opinion should be obtained which takes into account the cumulative effects of the low back and right knee disabilities in light of the Veteran's vocational and educational experience. 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. Schedule the Veteran for an appropriate examination to determine whether his service-connected disabilities preclude his ability to obtain and maintain substantially gainful employment. The examiner must be provided the claims folder contents. Following examination and review of the claims folder contents, the examiner must provide opinion as to whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran's service-connected right TKR residuals and low back disability, either singularly or jointly, taking into consideration his level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities, preclude him from obtaining and maintaining substantially gainful employment consistent with his educational history of a high school education and vocational experience as a forklift operator and stock supply person. 2. After completing the above, implementing the Board's decision regarding the Veteran's low back disorder and TKR of the right knee, and conducting any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matter 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 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). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs