Citation Nr: 1314799 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 09-07 066 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for right knee, status post total arthroplasty. 2. Entitlement to an initial compensable evaluation for instability of the right knee, status post total arthroplasty, prior to February 27, 2013, and in excess of 10 percent thereafter. 3. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service connected disorders. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran served on active duty from July 1970 to October 1973. This matter comes before the Board of Veterans' (Board) on appeal from a June 2008 rating decision of the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). Briefly, it is noted that a March 2007 rating decision assigned a total temporary rating for surgical treatment of the right knee, effective from February 20, 2007, to April 1, 2008; the evaluation was restored to 30 percent thereafter. In February 2008, the Veteran submitted a claim for an increased rating for the right knee disability. The June 2008 rating decision on appeal continued the currently assigned 30 percent evaluation for right knee total arthroplasty. The Veteran submitted a notice of disagreement in July 2008; a statement of the case was issued in December 2008; and in January 2009, the Veteran perfected his appeal to the Board. This matter was previously before the Board in January 2013, at which time it was remanded for the purposes of obtaining outstanding treatment records and scheduling the Veteran for VA knee examination. (Note: the January 2013 Board decision/remand also granted entitlement to service connection for bilateral upper and lower peripheral neuropathy, and therefore, these issues are no longer under appellate consideration). The requested VA knee examination was conducted in February 2013. In a March 2013, the RO assigned a separate 10 percent evaluation for instability of the right knee, status post total knee arthroplasty, effective February 27, 2013 (i.e., the date of the VA examination). Based on this procedural history, the issues on appeal have been recharacterzied as indicated on the cover page of this decision. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU is part of an increased rating claim when such claim is raised by the record. In this regard, the Veteran's representative claims that a TDIU should be considered based on the Veteran's service-connected disabilities. Therefore, the Board finds that the evidence raises a claim for a TDIU and, as such, it has been included on the title page of this decision. The issue of entitlement to an evaluation in excess of 20 percent for a lumbar spine disability (spondylolthesis) has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. See March 2013 Statement from Veteran. The issue of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders 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. The Veteran's right knee disability, status post total knee replacement, has not been manifested by severely limited motion (to include as due to pain), severe weakness, ankylosis in flexion between 10 and 20 degrees, extension limited to 30 degrees, or nonunion of the tibia or fibula with loose motion, requiring a brace. 2. The Veteran's right knee disability has been manifested by no more than slight instability throughout the entire appeal period. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for a total right knee replacement have not been met. 38 U.S.C.A. § 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.14, 4.71a, Diagnostic Codes 5055, 5256, 5258, 5259, 5261, or 5262 (2012). 2. Prior to February 27, 2013, the criteria for an initial 10 percent disability evaluation, and no higher, for right knee instability have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.71a Diagnostic Code 5257 (2012). 3. As of February 27, 2013, the criteria for an initial disability rating in excess of 10 percent for right knee instability have not been met. 38 U.S.C.A. § 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.71a, Diagnostic Code 5257 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Notify Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; (3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the Veteran pre-adjudication notice by a letter dated April 2008. This notice complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board notes that the Veteran's claim was subsequently readjudicated in a December 2008 statement of the (SOC), and supplemental statements of the case (SSOC) in March 2009, September 2009, and in March 2013. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Assist VA has obtained VA treatment records; assisted the Veteran in obtaining evidence; afforded the Veteran multiple physical examinations for his right knee disability; and afforded the Veteran the opportunity to give testimony before the Board. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). I. Procedural History The Veteran seeks higher disability ratings for his service-connected right knee disabilities. He specifically endorses painful motion, loss of mobility, weakness, and constant knee pain, popping, and grinding. See, e.g., July 2008 Statement from Veteran. Historically, in a November 1979 decision, the Board granted service connection for a right knee disability. Thereafter, the RO assigned a 10 percent evaluation (with a temporary total rating of 100 percent), under Diagnostic Code (DC) 5257, effective April 27, 1978, for right knee medial meniscectomy. In March 2004, the RO increased the Veteran's evaluation for his right knee disability to 30 percent, effective October 2, 2002. In February 2007, the RO received notice from the Veteran that he underwent a total right knee replacement (TKR)/arthroplasty, and that he wished to file for a total temporary rating in connection with the February 2007 TKR. A March 2007 rating decision granted the temporary total rating utilizing DC 5055 from February 20, 2007, to April 1, 2008 (this timeframe will not be considered in the analysis that follows). From April 1, 2008, this rating decision assigned a 30 percent evaluation for his right knee total replacement/arthroplasty under DC 5055. This 30 percent rating under DC 5055 replaced the prior 30 percent rating under DC 5257 for instability. Also, in April 2008, the RO received a claim for an increased evaluation of the right knee. In a June 2008 rating decision, the RO continued the 30 percent evaluation in effect for the right knee. The Veteran appealed this determination. Most recently, in March 2013, the RO granted a separate 10 percent evaluation under DC 5257 for instability of the right knee, effective February 27, 2013 (i.e., the date of the VA examination showing instability). Based on the grant of the separate rating for right knee instability, effective February 27, 2013, the issues on appeal have been recharacterized as noted on the title page. II. Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). 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 their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2012). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7 (2012). Otherwise, the lower rating will be assigned. Id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3. In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Moreover, claims for higher ratings require consideration of the entire time period involved and contemplate staged ratings where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). It should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. Pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5055, a 100 percent rating is warranted for 1 year following implantation of prosthesis in the case of prosthetic replacement of knee joint. Note (1) states that the 100 percent rating for 1 year following implantation of prosthesis will commence after initial grant of the 1-month total rating assigned under 38 C.F.R. § 4.30 following hospital discharge. Note (2) states that special monthly compensation is assignable during the 100 percent rating period the earliest date permanent use of crutches is established. Following a total rating for 1 year, a 30 percent rating is the minimum rating for knee replacement (prosthesis) and a 60 percent rating is warranted 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 rate by analogy to diagnostic codes 5256, 5261, or 5262. For purposes of this decision, the Board notes that normal range of motion for the knee is flexion to 140 degrees and extension to 0 degrees. 38 C.F.R. § 4.71, Plate II. Diagnostic Codes 5260 and 5261 provide for rating based on limitation of motion. Evaluations for limitation of flexion of a knee are assigned as follows: flexion limited to 45 degrees is 10 percent; flexion limited to 30 degrees is 20 percent; and flexion limited to 15 degrees is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Evaluations for limitation of extension of the knee are assigned as follows: extension limited to 10 degrees is 10 percent; extension limited to 15 degrees is 20 percent; extension limited to 20 degrees is 30 percent; extension limited to 30 degrees is 40 percent; and extension limited to 45 degrees is 50 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Under Diagnostic Code 5262, pertaining to "impairment of tibia and fibula," a 10 percent rating is warranted for malunion with slight knee or ankle disability. A 20 percent rating contemplates malunion with moderate knee or ankle disability, and a 30 percent rating is warranted for malunion with marked knee or ankle disability. A 40 percent rating is warranted for nonunion with loose motion, requiring brace. The rating schedule provides for a 10 percent rating for slight recurrent subluxation or lateral instability, a 20 percent rating for moderate recurrent subluxation or lateral instability, and a 30 percent rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). III. Factual Background The pertinent evidence of record includes a May 2008 VA knee examination, which reflects complaints of continued right knee pain, but no swelling, locking, popping, or grinding. The Veteran reported that he used a cane for ambulation and took Darvocet and Ibuprofen, as needed, with relief. He stated that he was unable to walk or stand for more than 30 minutes; he was also unable to squat or kneel. Upon objective examination, there was some anterior slippage noted; however, there was no crepitus, tenderness, or warmth present. Motor strength was normal. Extension of the right knee was to 5 degrees, and flexion was to 95 degrees, with pain on the latter only. There was no diminishment of motion with repetitive use testing, and no noted DeLuca criteria were present. The right knee joint was not additionally limited by pain, fatigue, weakness, or lack of endurance following repetitive use. The examiner further noted that there was no pain on range of motion or flare-ups on any joints except as stated above. VA treatment records dated throughout 2008 noted that the Veteran was doing well after his knee replacement and that he had returned to work. See, e.g., VA Treatment Records, July 2007 and November 2008. A September 2008 x-ray of the right knee reflected total right knee arthroplasty without evidence of complication. A contemporaneous orthopedic note showed that the Veteran was doing well, but had developed some pain and recently resorted to using his cane. Objective examination showed a normal gait; good range of motion of the right knee; no effusion; and patellofemoral pain. While there were no signs of instability, "slight mediolateral play" in the right knee (previously noted) was present. A November 2008 VA orthopedic note showed that the Veteran's gait was normal, although he was still using a cane, and that his surgical incision was well-healed. Alignment was normal. Range of motion was from 0 to 125 degrees. There was no swelling. The right knee was stable to varus/valgus stress. A February 2009 x-ray report of the right knee again showed changes associated with a prior, total right knee replacement without any objective complications. A contemporaneous VA orthopedic clinic note reflected that the Veteran was "doing well" and that his tendonitis had improved with medication, although it still caused some discomfort with certain motions. He did endorse continued right knee pain. He stated that he was no longer using his cane. Objectively, alignment of the right knee was normal. Range of motion was from 0 to 125 degrees. There was no swelling. The right knee was stable to varus/valgus stress. The evidence also reflects that the Veteran was issued a right knee brace in February 2009, following complaints of right knee pain. In March 2009, the Veteran stated that he had been experiencing "some" pain in his right knee and that the knee brace was helping. Objectively, the Veteran had full range of motion of the right knee. It was stable. In full extension, he had some medial and lateral instability. There was no anterior or posterior instability. It was noted that recent x-rays showed good position of the total knee replacement with no signs of loosening, bone reabsorption, or any other obvious abnormalities. The pertinent diagnosis was old, total knee replacement, with some pain in the right knee. The Veteran was instructed to continue to use his right knee brace and cane. A March 2009 physical therapy note reflected full range of motion of the right knee, but some looseness, which was noted as being "not unusual" in passive testing. A July 2009 VA orthopedic clinic note reflected that the Veteran was doing well in terms of his knee. Objectively, range of motion of the right knee was from 5 to 100 degrees; the knee was stable; and strength was 5/5. Overall, the Veteran was noted as "doing well" from a knee standpoint. He was instructed to return to the clinic in one year for a follow-up. VA treatment records dated in 2011 and 2012 (continued in the Veteran's Virtual VA claims file) do not reflect any new complaints/treatment with respect to the right knee. The Veteran underwent another VA knee examination in February 2013. At that time, the Veteran reported no flare-ups of pain. With respect to range of motion, right knee flexion was to 110 degrees, with objective evidence of pain beginning at 90 degrees; extension was limited to 5 degrees (i.e., the Veteran could not fully extend his right knee). There was no objective evidence of painful motion with extension. The Veteran was able to perform repetitive-use testing, with 100 degrees of post-test flexion and 5 degrees of post-test extension. The Veteran was noted as having less movement than normal, weakened movement, and pain on movement in terms of functional loss/impairment of the right knee. There was no tenderness or pain to palpation of the right knee joint. Strength/muscle testing was normal. There was anterior and posterior stability of the right knee; however, medial-lateral instability (+1) (0-5 millimeters) was present. There was no evidence or history of recurrent patellar subluxation or dislocation. The examiner did note that the Veteran underwent a meniscectomy in 1978; however, there were no current residual signs or symptoms of this surgical procedure. With respect to surgical scarring, the examiner noted that none of the scars were painful and/or unstable, nor did they amount to a total area greater than 39 square centimeters. No assistive devices for location/ambulation were noted as being used by the Veteran. Contemporaneous x-rays confirmed the absence of degenerative and/or traumatic arthritis, patellar subluxation, and/or any other significant diagnostic test findings. It was noted that the Veteran's right knee disability did affect his ability to work. IV. Analysis Evaluation of right total knee replacement, currently rated as 30 percent disabling Currently, the Veteran's service-connected right knee disability, status post total knee replacement, is rated as 30 percent disabling pursuant to 38 C.F.R. § 4.71a, DC 5055. Again, DC 5055 pertains to knee replacements with prosthesis. The minimum rating under this DC is 30 percent for intermediate degrees of residual weakness, pain or limitation of motion rate by analogy to DCs 5256, 5261, or 5262. A higher, 60 percent, evaluation is available under DC 5055 in cases where the knee replacement results in chronic residuals consisting of severe painful motion or weakness in the affected extremity. In this case, the medical evidence of record does not show that the Veteran has experienced chronic right knee residuals consisting of severe painful motion or weakness any time during the period on appeal. While the Veteran has continued to complain of right knee pain and weakness subsequent to his 2007 right knee replacement, the preponderance of the evidence does not show that it is severe in nature or degree. With respect to weakness, the May 2008 VA examination report showed "some" anterior slippage in the right knee; otherwise, motor strength of the right extremity was normal (5/5); there were no subjective complaints of knee weakness; and the examiner expressly noted the absence of DeLuca criteria (i.e., functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements). While the February 2013 VA examination report reflected objective "weakened movement" of the right knee, this was present only after repetitive-use testing. Otherwise, muscle strength of the right knee with flexion and extension was normal (5/5). There was only slight (i.e., 0-5 millimeters) medial-lateral instability present. Notably, the examination report indicated that the Veteran no longer required assistive devices, such as his cane or brace, for ambulation or support. The above findings are inconsistent with, and do not approximate weakness that is "severe" in nature as contemplated by the next-higher 60 percent rating. (Note: findings relating to instability of the right knee are addressed separately below). In addition, while objective evidence of pain on motion and some limitation of motion has been indicated, range of motion testing on numerous examinations has revealed almost full, to almost full extension (i.e., limited to no more than 5 degrees) and flexion to over 95 degrees on most occasions. Notably, the February 2013 examination report indicated that there was no objective evidence of painful motion with extension; and, while objective pain was present with flexion (beginning at 90 degrees), the Veteran was still able to flex to 110 degrees. The Veteran expressly denied any flare-ups of pain. All x-ray reports of the right knee since the 2007 arthroplasty have likewise reflected the absence of any significant residual orthopedic complications. Indeed, overall, the Veteran's right knee symptoms have seemingly improved since his right knee replacement in February 2007. Accordingly, the Board finds that a 60 percent rating for "severe" chronic right knee residuals is not warranted under Diagnostic Code 5055. 38 C.F.R. § 4.71a, Diagnostic Code 5055 (2012). For ratings below 60 percent, Diagnostic Code 5055 states that residual weakness, pain or limitation of motion are to be rated by analogy to diagnostic codes 5256, 5261, or 5262. 38 C.F.R. § 4.71a, Diagnostic Code 5055 (2012). In this case, however, the medical evidence of record does not show that the Veteran's right knee is ankylosed. Accordingly, a rating in excess of 30 percent is not warranted under Diagnostic Code 5256. 38 C.F.R. § 4.71a, Diagnostic Code 5256 (2012). In addition, the evidence of record does not show that the Veteran experiences nonunion of the tibia and fibula with loose motion. Accordingly, a rating in excess of 30 percent is not warranted under Diagnostic Code 5262. 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2012). As noted above, the medical evidence of record shows that the Veteran's right knee has been limited on extension to 5 degrees, at most, with no objective evidence of painful motion. Accordingly, a rating in excess of 30 percent is not warranted under Diagnostic Code 5261. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2012). Moreover, given that there is no evidence of dislocated cartilage with frequent episodes of locking, pain, and effusion, or removal of semilunar cartilage following the Veteran's total knee replacement surgery, separate and/or higher ratings under Diagnostic Codes 5258 and 5259 are not appropriate. 38 C.F.R. § 4.71a, Diagnostic Code 5258, and 5259 (2012). Lastly, the evidence in this case shows that the 30 percent rating assigned appropriately compensates the Veteran to the extent that he does have functional loss due to limited or excess movement, pain, weakness, excess fatigability, and/or incoordination. See 38 C.F.R. §§ 4.40 and 4.45; DeLuca. The VA examination reports clearly reflect that the Veteran's range of motion has been affected by some pain and weakness; however, he was still able to accomplish right knee range of motion as noted above (i.e., flexion to 110 degrees, and extension to 5 degrees upon examination in February 2013, and flexion to 95 degrees, and extension to 5 degrees upon examination in May 2008). Moreover, as noted, the Veteran's limitation of flexion does not approximate limitation to 45 degrees, and his extension does not approximate limitation to 10 degrees. Thus, separately compensable disability ratings for limitation of flexion and extension would not be warranted, and the Veteran's limitation of motion of the right knee would warrant no more than 10 percent. See 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Codes 5260 and 5261. In sum, the evidence preponderates against finding that, at any pertinent point during the appellate term at issue that symptoms of pain, fatigue, weakness, lack of endurance, and/or incoordination were so disabling to support assignment of a rating in excess of 30 percent any applicable diagnostic code predicated on limitation of motion. See DeLuca, Supra. The Board has also considered the Veteran's assertions regarding his right knee pain and weakness, but finds that they are not more probative than the objective clinical findings outlined extensively above. Considering the provisions of Diagnostic Code 5055 and all other relevant diagnostic codes, the Veteran's right knee replacement residuals do not warrant a disability rating, or combination of disability ratings (excluding DC 5257, which is discussed immediately below), in excess of 30 percent. Accordingly, the Board finds that the medical evidence of record does not show that the Veteran experienced pain or other symptoms which caused additional limitations sufficient to warrant a rating in excess of the 30 percent assigned. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); DeLuca, supra. Evaluation of right knee instability, currently evaluated as noncomepsably disabling prior to February 27, 2013, and 10 percent thereafter The RO also awarded a separate 10 percent evaluation for right knee instability under 38 C.F.R. § 4.71a, DC 5257, effective February 27, 2013-the date of an examination on which right knee instability was first found. The Board finds that an additional 10 percent rating for right knee instability under DC 5257 is warranted prior to February 27, 2013, (i.e., throughout the appellate period) because there was objective evidence of "some" anterior slippage upon VA examination in May 2008; objective findings of slight medial-lateral "play" in September 2008; subjective complaints of having to wear a brace for support in February 2009; and objective findings of "some medial and lateral instability." For these reasons, the Board finds that the Veteran is also entitled to an initial 10 percent evaluation prior to February 23, 2013, for slight instability of the right knee. However, the Board finds that an initial disability evaluation in excess of 10 percent for right knee instability is not warranted at any time during the appellate period. In this regard, the Board notes that VA examiners and physicians have consistently described the Veteran's right knee instability as "slight," or with "some" looseness/play/instability. In February 2013, valgus/varus testing revealed joint-line opening of +1, or between 0 and 5 millimeters. These findings equate, at most, to no more than slight instability of the right knee under DC 5257. Thus, the evidence is not indicative of moderate or severe instability in the knee. Due consideration has been given to staged ratings; however, higher evaluations are not warranted for any portion of the time period covered by this claim. Scars In this case, the record does reflect the Veteran has two residual scars of the right knee from surgery. However, the Veteran has not been assigned a separate compensable rating for these scars, and the record does not reflect he satisfies the criteria for such separate ratings. For example, the February 2013 VA examination showed a scar measuring 18 centimeters x .5 centimeters, as well as a scar measuring 15 centimeters x .5 centimeters; these scars were expressly noted as being neither painful, nor unstable. Likewise, the May 2008 VA examination showed a well-healed, 23 centimeter vertical anterior scar, and a well-healed 13 centimeter lateral scar. Therefore, as the record demonstrates that these scars are well-healed, nontender/non-painful, and do not cause any additional functional impairment, separate compensable ratings are not warranted. Final Considerations After a review of the evidence, the preponderance of the medical evidence of record does not show findings that would warrant ratings in excess of the currently assigned ratings for the Veteran's right knee disability under any rating criteria at any time during the periods pertinent to this appeal. 38 U.S.C.A. § 5110 (West 2002); Hart v. Mansfield, 21 Vet. App. 505 (2007). Generally, rating a disability using either the corresponding or analogous diagnostic codes contained in the Schedule is sufficient. 38 C.F.R. §§ 4.20, 4.27 (2012). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2012). The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008); Fisher v. Principi, 4 Vet. App. 57 (1993). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). If the criteria under the Schedule reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Schedule, and the assigned schedular evaluation is adequate, and no referral is required. When service-connected disability affects employment in ways not contemplated by the rating schedule, § 3.321(b)(1) is applicable. VAOGCPREC 06-96 (1996), 61 Fed. Reg. 66749 (1996). The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render his disability ratings for his right knee inadequate. The Veteran's right knee disabilities were rated under several diagnostic codes in 38 C.F.R. § 4.71a, the criteria of which are found by the Board to specifically contemplate the Veteran's level of disability and symptomatology. The Veteran's right knee disabilities are manifested by well defined symptomatology. For example, the Veteran's right knee, status post replacement, is productive of chronic residuals consisting of some painful motion and weakness (but less than severe), as well as slight instability. These symptoms fit squarely within the rating criteria under DC's 5055, and 5257, for which the current 30 percent and 10 percent ratings are assigned, respectively. Thus, when comparing his disability picture with the symptoms contemplated by the Schedule, the Board finds that the Veteran's symptoms are adequately contemplated by the ratings currently assigned. Ratings in excess of the currently assigned ratings are provided for certain manifestations of knee disabilities, but the medical evidence does not show that those manifestations are present. The criteria for the currently assigned ratings for the Veteran's right knee disabilities reasonably describe the Veteran's disability level and symptomatology and, therefore, the currently assigned schedular ratings are adequate and no referral is required. VAOGCPREC 06-96 (1996), 61 Fed. Reg. 66749 (1996); 38 C.F.R. § 4.71a (2012). ORDER Entitlement to an evaluation in excess of 30 percent for residuals of a right knee arthroplasty is denied. Prior to February 27, 2013, the criteria for an initial 10 percent disability evaluation, but no higher, for right knee instability is granted, subject to the applicable criteria governing the payment of monetary benefits. As of February 27, 2013, an initial evaluation in excess of 10 percent for right knee instability as is denied. REMAND In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims held that a claim of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders is "part of," and not separate from, a claim of entitlement to an increased rating. Id. at 453. While the this issue has yet to be certified for appeal or addressed by the RO, in light of the binding precedent set forth in Rice, the Board is compelled to remand this issue. Indeed, a review of the Veteran's Virtual VA claims reveals that the Veteran has not been employed since 2010. Service connection is in effect for right knee, status post arthroplasty, right knee instability, peripheral neuropathy of the bilateral upper and lower extremities, and spondylolisthesis of the lumbar spine. His combined disability rating is currently 90 percent. The medical current medical evidence, including recent VA back, neurological, knee, and lower extremity examinations, reflect that these disabilities affect his ability to work and engage in certain types of labor, although the extent to which is unclear. As such, the Board finds that the record reasonably raises the issue of entitlement to a total disability evaluation based on individual unemployability due to his service-connected disabilities outlined above. Because the Board cannot adequately determine from the existing record how the Veteran's service-connected disabilities collectively affect his employability, the Board finds that additional development, to include providing proper VCAA notice, collecting employment information from the Veteran, obtaining additional records, and affording the Veteran an appropriate VA examination(s) and/or social and industrial survey to determine whether he is unable to secure or maintain substantially gainful employment as a result of his service-connected disabilities is necessary. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should provide proper VCAA notice to the Veteran regarding a TDIU claim. 2. The RO/AMC should contact the Veteran and request that he provide up-to-date information concerning his employment and educational history. 3. After completing the above development, the Veteran should be afforded a VA examination(s) and/or social and industrial survey to determine the impact of his service-connected disabilities on his employability. The claims folder should be made available to the examiner prior to the examination. All pertinent symptomatology and findings must be reported in detail. Based on the review of the claims file, the examiner must provide an opinion as to the effect of all the Veteran's service-connected disabilities, either singularly or jointly, on his ability to secure or follow a substantially gainful occupation. A complete rationale should be given for all opinions and conclusions expressed. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's TDIU claim should be adjudicated 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. 5. 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 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). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs