Citation Nr: 1318392	
Decision Date: 06/06/13    Archive Date: 06/11/13

DOCKET NO.  09-04 900	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Entitlement to a rating higher than 30 percent for a left total knee replacement (TKR).

2.  Entitlement to service connection for right knee degenerative joint disease (DJD), including as secondary to the service-connected left TKR and a right leg discrepancy due to left leg lengthening associated with the left TKR.

3.  Entitlement to service connection for lumbar spine DJD, including as secondary to the service-connected left TKR and right leg discrepancy due to left leg lengthening associated with the left TKR.

4.  Entitlement to service connection for right hip DJD, including as secondary to the service-connected left TKR and right leg discrepancy due to left leg lengthening associated with the left TKR.


5.  Entitlement to service connection for left hip DJD, including as secondary to the service-connected left TKR and right leg discrepancy due to left leg lengthening associated with the left TKR.

6.  Entitlement to service connection for left sacroiliac DJD, including as secondary to the service-connected left TKR and right leg discrepancy due to left leg lengthening associated with the left TKR.

7.  Entitlement to service connection for right sacroiliac DJD, including as secondary to the service-connected left TKR and right leg discrepancy due to left leg lengthening associated with the left TKR.

8.  Whether there is new and material evidence to reopen a claim of entitlement to service connection for a right shoulder condition, including on a secondary basis.

9.  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

S. Finn, Counsel



INTRODUCTION

The Veteran had active military service from November 1954 to November 1974, so including during the Korean Conflict and Vietnam Era.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from May 2008 and June 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO).

In deciding this appeal, the Veteran's electronic ("Virtual VA") file has been reviewed, in addition to his physical claims file.  Instead of just paper, the Virtual VA claims processing system is now being utilized.  It is a highly secured electronic repository used to store and review every document involved in the claims process.  The use of this system allows VA to leverage information technology in order to more quickly and accurately decide Veterans' claims for benefits.  VA also is in the process of transitioning to an even newer electronic medium - the Veterans Benefits Management System (VBMS).

Please also 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).

Consider as well that, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the U.S. Court of Appeals for Veterans Claims (Court/CAVC) held that VA must address the issue of entitlement to a TDIU in increased-rating claims when the issue of unemployability either is raised expressly or by the record.  This is indeed the situation here.  (See July 2012 Disability Benefits Questionnaire (DBQ) stating the Veteran's left TKR affects his ability to work in that physical labor would be negatively impacted by this service-connected disability, albeit not also sedentary labor).  Thus, under Rice, the Board has authority to assume jurisdiction over this derivative TDIU claim inasmuch as it is predicated on the service-connected disability for which the Veteran is requesting a higher rating in this appeal.  

This TDIU claim is not a claim separate or distinct from this underlying 
increased-rating claim.  See also Hurd v. West, 13 Vet. App. 449 (2000) (indicating a TDIU claim is also a claim for increased compensation and, therefore, the effective date rules for increased-compensation claims apply to a TDIU claim); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (a TDIU claim is informally raised when a Veteran:  (1) submits evidence of a medical disability; (2) makes a claim for the highest possible rating for that disability; and (3) submits evidence of unemployability)); Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased-rating claim only when the Roberson requirements are met).

Similarly, in Mayhue v. Shinseki, 24 Vet. App. 273 (2011), the Court held it was inappropriate to have treated the Veteran's request for a TDIU as different from his claim for a higher initial rating for his underlying disability, which in that case was posttraumatic stress disorder (PTSD).  Citing Rice, the Mayhue Court reasoned that a request for a TDIU is not a separate claim for benefits, rather, an attempt to obtain an appropriate rating for a disability or disabilities.  Thus, the Court explained, the Board should have considered evidence of unemployability as far back as the date of the underlying claim.  But there must be cogent evidence of unemployability in the record.  See Rice, citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009).

Since, however, this derivative TDIU claim has not been initially considered by the RO as the Agency of Original Jurisdiction (AOJ) and requires further development before being decided, the Board is remanding it to the RO via the Appeals Management Center (AMC).  VA's Office of General Counsel has indicated that remanding the derivative TDIU claim in this circumstance does not preclude the Board from going ahead and deciding the claim for a higher rating for the disability forming the basis of the TDIU claim.  See VAOPGCPREC 6-96 (Aug. 16, 1996) and VAOGCPREC 12-2001 (July 6, 2001).


The Board also is remanding, rather than immediately deciding, the claims of entitlement to service connection for lumbar spine DJD, right knee DJD, right and left hip DJD, right and left sacroiliac DJD, and concerning whether there is new and material evidence to reopen the claim of entitlement to service connection for a right shoulder condition.  Whereas the Board, instead, is going ahead and deciding the claim for a higher rating for the left TKR.


FINDING OF FACT

Even as much as one year prior to receipt of his claim for an increased rating, the Veteran's left knee disability was manifested by chronic pain, decreased range of motion, and mild instability.


CONCLUSION OF LAW

The criteria are met for a higher 60 percent rating for his left TKR.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5055 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Duties to Notify and Assist

As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits upon receipt of a complete or substantially complete application.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).


The notice obligations have been satisfied.  The RO sent the Veteran letters in August 2007, December 2007, and August 2008 informing him of the requirements needed to establish his entitlement to a higher rating for his left knee disability and related complications.  The letters advised him that VA used a published schedule for rating disabilities that determined the rating assigned and that evidence considered in determining the disability rating included the nature and symptoms of the condition, the severity and duration of the symptoms, and the impact of the condition and symptoms on employment.  The letters also informed him of the evidence and information he was responsible for obtaining versus the evidence and information that VA would obtain for him.  38 C.F.R. § 3.159(b).  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Most, though not all, of those notices preceded the initial adjudication of this claim, so were in the preferred sequence.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  But even to the extent they did not, the issuance of a fully compliant VCAA notification followed by readjudication of the claim, including in a statement of the case (SOC) or supplemental SOC (SSOC), is sufficient to "cure" the timing defect in the provision of the notice because the intended purpose of the notice is still served and the Veteran given ample opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370 (2006).

There also were changes during the pendency of this appeal to what is considered sufficient VCAA notice in response to an increased-rating claim.  It initially was held that, for an increased-compensation claim, the Veteran must be notified that he must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on his employment and daily life.  Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes (DCs), which typically provide for a range in severity of a particular disability from 0 percent, i.e., noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life.  Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) (Vazquez-Flores I).  The Federal Circuit Court subsequently held, however, that the notice described in 38 U.S.C. § 5103(a) need not be Veteran specific, i.e., it need not notify the Veteran of alternative DCs, and that the statutory scheme also does not require "daily life" evidence for proper claim adjudication.  Vazquez Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (Vazquez-Flores II) (vacating and remanding in part 
Vazquez-Flores I).  Even more recently, the Court clarified that the notice must advise the Veteran to submit evidence demonstrating the effect that the worsening of his disability has on his employment.  Vazquez-Flores v. Shinseki, No. 05-0355, (U.S. Vet. App. October 22, 2010) (Vazquez-Flores III).  This most recent decision also held that, after a notice error, such as failing to inform the appellant to submit evidence demonstrating the effect that a worsening of the disability has on employment, is found in an increased-rating claim, his burden to demonstrate prejudice at the Court (CAVC) level does not shift to VA unless notice is not provided at all.

The Veteran was notified of Vazquez-Flores I in August 2008, so he received more notice than is now required concerning an increased-rating claim.  And even when a VCAA notice error is shown to have occurred, it must be judged on a case-by-case basis as to whether it was merely harmless or unduly prejudicial.  And as the pleading party attacking the agency's decision, the Veteran, not VA, bears this evidentiary burden of proof of not only establishing error, but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of his claim.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  The Veteran has not made any such pleading or allegation.


VA also as mentioned has a duty to assist the Veteran in obtaining evidence necessary to substantiate this claim.  38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim").  This duty includes assisting him in obtaining relevant records and providing medical examinations or obtaining medical opinions when necessary to make a decision on the claim.  38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to the claimant).

To this end, the Veteran has been provided examinations assessing and reassessing the severity of his left knee disability, including since his left TKR.  VA provided him examinations in August 2007, March 2008, and most recently in July 2012.  His prior treatment records were reviewed for the history of this disability, including as recounted by him personally and as concerning the type of symptoms he has experienced and continues to, and diagnostic testing and evaluation performed to address the relevant rating criteria.  The bases of the conclusions reached and diagnoses given were discussed in the examination reports.  Additional examination therefore is not required or needed.  38 C.F.R. §§ 3.327, 4.2.  See also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate).  Moreover, neither the Veteran nor his representative has voiced any challenge to the adequacy of the VA examinations.  Unless the claimant challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate and need not affirmatively establish the adequacy of the examination report or the competence of the examiner.  Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that, although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged).  But even when this is called into question, the Board may assume the competency of any VA medical examiner, including even nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), the examiner is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  See Cox v. Nicholson, 20 Vet. App. 563 (2007).

As well, VA offered the Veteran an opportunity to present additional evidence and argument at a hearing, but he elected not to have one, including before the Board.  38 C.F.R. §§ 20.700, 20.702, 20.704.

In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate effectively 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).  He has not identified any outstanding evidence that would tend to support his claim, and there is no suggestion of any VA error in notifying or assisting him in developing his claim that could result in undue prejudice to him in deciding this claim or that could otherwise affect the essential fairness of the adjudication of this claim.

As already alluded to, in deciding this claim, the Board has reviewed all of the evidence in his claims file, both his physical claims file and electronic ("Virtual VA") claims file.  Although the Board has an obligation to review the entire record, the Board does not have to discuss each and every piece of evidence reviewed, certainly not in exhaustive detail.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  He therefore must not assume the Board has overlooked pieces of evidence that are not explicitly discussed.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).


Analysis of Whether a Higher Rating is Warranted for the Left TKR

Service connection has been in effect for the Veteran's left knee disability effectively since May 24, 1977.  From May 24, 1977 to October 15, 2001, it was rated as left knee lateral meniscectomy, postoperative, with secondary arthritis (referring to the degenerative changes).  But as of October 15, 2001, the RO began rating the disability instead as a left TKR because he had residuals of injury to the meniscus cartilage that in the short term required only a meniscectomy but ultimately a left TKR.

In March 2005, the RO received an operative report detailing his left TKR and treated it as a claim for an increased rating.  38 C.F.R. § 3.157.  In an August 2005 rating decision, the RO assigned a 100 percent rating for this left knee disability from March 7, 2005 until April 30, 2006.  Effective May 1, 2006, the condition was rated instead as 30-percent disabling, and this rating has continued to this day.

The authority for assigning that temporary 100 percent rating was 38 C.F.R. §§ 4.30 and 4.71a, DC 5055.  Section 4.30 permits the awarding of a temporary 100 percent disability rating to compensate a Veteran while he convalesces, such as from the type of surgery this Veteran had, whereas DC 5055 mandates the assigning of a 100 percent rating for one year following a knee replacement.

In April 2006, after having the Veteran's left knee examined to assess the severity of the postoperative residuals, the RO issued a decision confirming and continuing the 30 percent disability rating.  He did not timely appeal that decision.  On May 7, 2007, so more than one year later, he filed a claim for an increased rating for this disability.  Therefore, this appeal concerns whether he has been entitled to a rating higher than 30 percent for this disability since May 7, 2007.


Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate DCs. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.20 (2012).  When a question arises as to which of two ratings applies under a particular DC, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  All reasonable doubt material to the determination is resolved in the Veteran's favor.  38 C.F.R. § 4.3.

In deciding what rating is appropriate, consideration must be given to the history of the disability and all potentially applicable DCs.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).  Where, as here, entitlement to compensation already has been established, and an increase in the disability rating is at issue, the present level of disability is the primary concern.  Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings.  See Francisco v. Brown, 7 Vet. App. 55 (1994).

But the Court also has explained that, in determining the present level of disability, it may be necessary to "stage" the rating if the factual findings show distinct time periods where the service-connected disability has exhibited symptoms that would warrant different ratings.  See 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 one year before the claim for a higher rating was filed until VA makes a final decision on the claim.  See 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).

Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition, else, this would violate VA's anti-pyramiding regulation - 38 C.F.R. § 4.14.  Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

The assignment of a particular DC is "completely dependent on the facts of a particular case."  Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One DC may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology.  Any change in DC by a VA adjudicator must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).

As already indicated, the Veteran's left knee disability is currently rated as 
30-percent disabling under DC 5055(knee replacement (prosthesis)).  Under this DC, following the termination of the temporary 100 percent rating that is to remain in effect for one year, a 60 percent rating is warranted if there are chronic residuals consisting of severe painful motion or weakness in the affected extremity. Otherwise, with intermediate degrees of residual weakness, pain, or limitation of motion, the disability will be rated by analogy to DCs 5256, 5261, or 5262.  However, the minimum rating is 30 percent. 38 C.F.R. § 4.71a, DC 5055.

DC 5256 pertains to ankylosis of the knee.  38 C.F.R. § 4.71a, DC 5256.  Ankylosis is "[s]tiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint."  Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (quoting from Stedman's Medical Dictionary 87 (25th ed. 1990)).  According to Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988), ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."  See also Coyalong v. West, 12 Vet. App. 524, 528 (1999).  See, too, Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)].

Under DC 5256, a 30 percent rating is assigned if the knee is ankylosed at a favorable angle in full extension or in slight flexion between 0 and 10 degrees; a 40 percent rating is assigned if the knee is ankylosed in flexion between 10 and 20 degrees; a 50 percent rating is assigned if the knee is ankylosed between 20 and 45 degrees; and a 60 percent rating is assigned for extremely unfavorable ankylosis of the knee at an angle of 45 degrees or more.  38 C.F.R. § 4.71a, DC 5256.

DC 5261 pertains to limitation of extension of the knee.  This code provides that extension limited to 45 degrees warrants a 50 percent rating; extension limited to 30 degrees warrants a 40 percent rating; extension limited to 20 degrees warrants a 30 percent rating; extension limited to 15 degrees warrants a 20 percent rating; extension limited to 10 degrees warrants a 10 percent rating; extension limited to 5 degrees warrants a zero percent (noncompensable) rating.  38 C.F.R. § 4.71a, DC 5261.

DC 5260, on the other hand, considers knee motion in the opposite direction and provides that flexion limited to 15 degrees warrants a 30 percent rating; flexion limited to 30 degrees warrants a 20 percent rating; flexion limited to 45 degrees warrants a 10 percent rating; and flexion limited to 60 degrees warrants a 0 percent (noncompensable) rating.

Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion.  See 38 C.F.R. § 4.71, Plate II.

When evaluating musculoskeletal disabilities that are based on limitation of motion, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  Functional loss may 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.  Pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability.  38 C.F.R. § 4.45.  Painful, unstable, or malaligned joints, due to a healed injury, are entitled to at least the minimal compensable rating for the joint.  38 C.F.R. § 4.59.  Functional loss due to pain is rated at the same level as functional loss where motion is impeded.  Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).  Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in.  See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995).  Indeed, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability.  See Burton v. Shinseki, 25 Vet. App. 1 (2011).

The rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups. DeLuca v. Brown, 8 Vet. App. 202 (1995).

A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the claimant.  38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997).  And although VA is required to apply 38 C.F.R. §§ 4.40 and 4.45, pertaining to functional impairment for disabilities evaluated on the basis of limitation of motion, where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, these regulations are not for application.  Johnston, 10 Vet. App. at 84-85.  Moreover, although pain may cause functional loss, pain itself does not constitute functional loss.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011).  Rather, pain must affect some aspect of "the normal working movements of the body such as excursion, strength, speed, coordination, and endurance," in order to constitute functional loss.  Id.; see 38 C.F.R. § 4.40.

DC 5262 pertains to impairment of the tibia and fibula.  This code provides a 30 percent rating for malunion of the tibia and fibula with marked knee or ankle disability.  A 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion, requiring a brace.  38 C.F.R. § 4.71a, DC 5262.

"Other" impairment of the knee, namely, if due to recurrent subluxation or lateral instability, is rated under DC 5257 as 10-percent disabling if "slight", as 20-percent disabling if "moderate", and as 30-percent disabling if "severe".

If a Veteran has arthritis due to trauma (i.e., post-traumatic arthritis), substantiated by X-ray findings, then the rating is under DC 5010, which indicates to rate the disability as degenerative arthritis (hypertrophic or osteoarthritis) under DC 5003.  

With any form of arthritis, painful motion is an important factor of disability.  The intent of the Rating Schedule is to recognize painful motion with joint or particular pathology as productive of disability.  Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint.  Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint.  38 C.F.R. § 4.59.

DC 5003 indicates the disability will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved - which, here, as mentioned are DC 5260 for limitation of leg and knee flexion and DC 5261 for limitation of leg and knee extension. When, however, the limitation of motion of the specific joints involved is noncompensable (i.e., 0-percent disabling) under the appropriate DCs, a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  In the absence of limitation of motion, a 10 percent rating is warranted if there is X- ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and a 20 percent rating is authorized if there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and there are occasional incapacitating exacerbations.  38 C.F.R. § 4.71a , DC 5003.

For the purpose of rating disability from arthritis, the knee is considered a major joint.  See 38 C.F.R. § 4.45(f).

VA's General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257, respectively.  VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (July 1, 1997; revised July 24, 1997).  

The General Counsel subsequently clarified in VAOPGCPREC 9-98 (August 14, 1998) that for a knee disability rated under DC 5257 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under DC 5260 or DC 5261 need not be compensable but must at least meet the criteria for a zero-percent rating.  VA's General Counsel further explained that, if a Veteran has a disability rating under DC 5257 for instability of the knee, a separate rating for arthritis also could be based on X-ray findings and painful motion under 38 C.F.R. § 4.59.  This is because, read together, DC 5003 and 38 C.F.R. § 4.59 provide that painful motion due to degenerative arthritis, which is established by X-ray, is deemed to be limitation of motion and warrants the minimum rating for a joint, even if there is no actual limitation of motion.  See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991).

VA's General Counsel has held additionally that separate ratings may be assigned, as well, for limitation of knee extension and flexion. VAOPGCPREC 9-2004; 69 Fed. Reg. 59, 990 (2004).  Specifically, where a Veteran has both a compensable level of limitation of flexion and a compensable level of limitation of extension of the same knee, the limitations must be rated separately to adequately compensate him for functional loss associated with injury to his leg and knee.  Id.

Turning back now to the relevant facts and circumstances of this particular case.  The Veteran had a left TKR on March 7, 2005.  DC 5055 is the code that is specifically applicable to this circumstance, so is the express means of rating his disability after this type of surgery.  And he has the type of post-operative impairment contemplated by this DC, so there is no need to rate his disability under any of the other DCs mentioned, that is, other than by analogy under DC 5055.  This is especially true since DC 5055 accepts that he will have chronic residuals consisting of post-operative painful motion or weakness in the affected extremity, so contemplates the very same type of symptoms and impairment that are mentioned, as examples, in DCs 5003 and 5260 and 5261 (for arthritis causing limitation of motion on flexion and extension) and DC 5257 (inasmuch as instability is akin to weakness).

Post-operative VA treatment records dated from March 2006 to August 2007 reflect complaints of left knee pain and receipt of physical therapy to try and rehabilitate.  A March 2006 VA treatment reflects, via X-ray, evidence of an orthopedic replacement that appeared to be in a satisfactory position.  There was minimal lucency at the tip of the tibial segment of questionable clinical significance.  The scar from the surgery was depressed "as if it did not fill in well with muscle tissue after the TKR."  The Veteran's active range of motion for flexion was to 100 degrees and his extension was to -5 degrees (hyperextension).  An August 2006 VA treatment record reflects complaints of pain, weakness, and instability.  He used a cane.  A September 2006 VA treatment record notes he then recently had fallen 2 to 3 times.  He described the incidents as his knee "giving out", so being unstable.  A September 2006 VA treatment record noted flexion of 105 degrees with extension to -3 degrees (so, again, hyperextension).  An October 2006 VA treatment record reflects ranges of motion from 107 to 110 degrees of flexion and full knee extension, so to at least 0 degrees.  A January 2007 VA treatment record noted that his left knee had improved and that the numbness in his left thigh area had resolved.  A July 2007 VA treatment record noted that range of motion for the left knee was from -12 to 100 degrees, so presumably from extension to flexion.

The report of an August 2007 VA joints examination reflects that the Veteran did not use a crutch or brace, but used a cane.  He had no dislocation or recurrent subluxation of any joints.  He had not had any constitutional symptoms of inflammatory arthritis.  He had stopped working in 2004.  He drove a truck, but had to quit because of his left knee disability.  He could walk up to 200 yards before having to stop due to back pain.  He walked on his heels, toes, and outside of his feet with left knee pain.  His left knee was tender medially, laterally, posteriorly, and anteriorly.  There was crepitus, swelling, and deformity, but no laxity.  He extended his left knee to 0 degrees actively, passively, and after fatiguing with pain.  He flexed his left knee from 0 to 110 degrees actively, 0 to 112 degrees passively, and 0 to 113 degrees after fatiguing with pain.  With regards to his scars, there was a nontender scar on the anterior surface of the left knee that measured 23 cm in length and 0.25 cm wide.  On the lateral aspect of the knee, there was a scar that measured 10 cm in length and 0.25 cm wide.  Another scar on the lateral aspect measured 10 cm and 0.5 cm wide.  The scars were superficial and not deep or tender.  They did not interfere with function.  They were not keloided and there was no induration, ulceration, or inflammation of the skin of the scars.  The VA examiner indicated they were well-healed surgical scars with no other problems.  There was no decrease in the range of motion or joint function additionally limited by pain, fatigue, weakness, or lack of endurance.  X-rays of the knees showed prosthetic reconstruction of the left knee with no evidence of loosening.  The diagnosis was left TKR in good position with normal X-rays.

A January 2008 VA treatment recorded reflects range of motion of the left knee from -10 to 100 degrees.  There was no joint effusion.  The knee was completely stable to barus and valgus stress.  He complained of "popping."  It was noted that he had a considerable scar around the patella.  The diagnosis was status post left TKR with stiffness and discomfort.

The report of a March 2008 VA examination reflects a history of a left knee replacement procedure in March 2005 at the VA Medical Center (VAMC) in Salem, Virginia.  The Veteran complained that his left knee "popped" and "gave way" when he walked.  He also reported numbness in the lateral left lower leg and increased pain.  He stated that his pain was an 8 out of 10 (10 being the worst).  He said his private orthopedist, who he had retained for a second opinion, had stated that "everything looked good."  X-rays and bone scans were normal.  The VA examiner stated that, at one time the Veteran had suffered from degenerative arthritis of the left knee, referring to before his left TKR.

An October 2008 VA treatment record noted that flexion was to 100 degrees and that the Veteran lacked 10 degrees of extension.  The Veteran continued to complain of "giving way" of this knee.  The evaluating VA physician noted that "why would this start at this period of time and not the previous three years I do not know, making it questionable whether it is related to [the Veteran's] knee."


VA treatment records from October 2008 through March 2011 reflect ongoing complaints of left knee pain and continued "giving out".  In February 2011, the Veteran presented with several falls since his Mumford procedure in February 2010 because his left knee gave out.  A March 2011 VA treatment record noted that he needed a motorized wheelchair.

A July 2012 DBQ reflects a diagnosis of residual pain status post TKR of the left knee.  The Veteran reported flare-ups that impacted his functioning when he walked or engaged in "any type of random movement."  Flexion was to 70 degrees and extension to 25 degrees for this knee.  He was able to perform repetitive-use testing.  There was less movement than normal, pain on movement, instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing.  There was tenderness or pain to palpation for the joint line or soft tissues of either knee.  Knee flexion and extension strength was 5/5.  Lachman's test was normal.  Posterior instability was normal and lateral instability was normal.  There was no history of patellar subluxation or dislocation.  It was observed that he had had a TKR with intermediate degrees of residual weakness, pain or limitation of motion.  He had scars, but they were not painful and/or unstable nor was the total area of all related scars greater than 39 square cm.  The Veteran had 3 well-healed surgical scars on his left knee that were stable and not painful.  The first scar was linear down the middle of the knee cap and measured 23 x. 1 cm=2.3 cm2.  The second scar was diagonal to the lateral side that measured 9.5 x .2 cm=9 cm2.  The third scar was to the lateral side and measured 10 cm x .1 cm=1cm2.  He used a cane and an electric scooter to get around.  His functioning was not so diminished that amputation with prosthesis would equally serve him.  His left knee impacted his ability to work, but not in sedentary labor.

This collective body of medical and lay evidence show his left knee disability is manifested by chronic pain and limited motion (though not ankylosis), as well as mild instability.  In light of the indications he has been treated for falls (due to his left knee giving way or out), uses a cane and a motorized wheelchair to get around and because he has difficulty standing, walking, and has constant pain, so on a chronic or permanent basis, and when resolving all reasonable doubt concerning the extent and severity of his symptoms and impairment in his favor, the Board finds that a higher 60 percent rating is warranted for his left knee disability under DC 5055.  See 38 C.F.R. §§ 4.3, 4.7.  This finding is despite the July 2012 DBQ examiner's finding of just "intermediate degrees of residual weakness, pain or limitation of motion", as the evidence on whole tends to show greater impairment and support assignment of this higher 60 percent rating.  Since however more than one year has elapsed since his left TKR, and he already has been compensated at the 100-percent level for that TKR, this is the maximum schedular evaluation that can be assigned under this code.  See 38 C.F.R. § 4.71a, DC 5055.

None of the other DCs pertaining to the knee and leg provide for a disability rating higher than 60 percent.  See 38 C.F.R. § 4.71a, DCs 5256-5263.  

As well, the Board recognizes that the Veteran has post-operative scars on his left knee, apparently 3 in total.  In general evaluation of the same disability or the same manifestations of disability under multiple diagnoses (i.e., pyramiding) is to be avoided.  38 C.F.R. § 4.14 (2012); see Esteban v. Brown, 6 Vet. App. 259 (1994).  The critical inquiry in making such a determination is whether any of the disabling symptomatology is duplicative or overlapping.  The claimant is entitled to a combined rating where the symptomatology is distinct and separate.  Esteban, supra.  The Veteran, however, is not entitled to a separate rating for his surgical scars because they reportedly are all asymptomatic, nontender, and not painful and do not cause or result in any additional functional impairment of the knee or leg where situated.  38 C.F.R. § 4.71a, DC 7804 (prior to and since October 23, 2008).

The Veteran has been entitled to this higher 60 percent rating at least since the filing of this increased-rating claim on May 7, 2007, if not even since during the immediately preceding year, so dating perhaps as far back as May 7, 2006.  That was around the time when his prior 30 percent rating took effect, which was on May 1, 2006.  Essentially then, he has shown his entitlement to this higher 60 percent rating since the cessation of his temporary 100 percent rating.  At no time since, however, has he deserved a rating higher than 60 percent, so the Board cannot "stage" this rating under Hart v. Mansfield, 21 Vet. App. 505 (2007).

Extra-schedular Consideration

In evaluating this claim for a higher rating, and in assigning this higher rating, the Board also has considered whether the Veteran is entitled to an even greater level of compensation on an extra-schedular basis.  Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors that would render application of this schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  An extra-schedular disability rating is warranted based upon 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 that would render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b)(1).  See also Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

The question of an extra-schedular rating is a component of a claim for an increased rating.  See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). And although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242 (2008).

If the evidence raises the question of entitlement to an extra-schedular rating, the threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  See Thun v. Peake, 22 Vet. App. 111 (2008).


Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization").  When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or to the Director of the Compensation and Pension Service for completion of the third step, a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating.  Id.

The Board finds that referral for extra-schedular consideration is not warranted in this case.  The Veteran's reported symptoms (i.e., chronic pain, limited motion, and instability) are contemplated by the rating criteria, as discussed above.  There are no symptoms left uncompensated or unaccounted for by the assignment of a schedular rating.  The evidence does not indicate that his left knee disability presents "such an exceptional or unusual disability picture... as to render impractical the application of the regular schedular standards."  38 C.F.R. § 3.321(b) (2012).  The fact that circumstances specific to a particular claimant may cause the effects of a service-connected disability to be more profound in that claimant's case does not ordinarily provide a basis for extra-schedular consideration.  Id.  Rather, the impairment must be one that is so unusual as to be unanticipated by the rating criteria.  See id.  Because the Board finds that the symptoms and functional limitations caused by the Veteran's left knee disability are contemplated by the rating criteria, there is no need to consider whether it causes marked interference with employment, meaning above and beyond that contemplated by his schedular rating for this disability.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  

Consequently, the Board finds that the available schedular evaluation is adequate to rate this disability, and therefore referral for extraschedular consideration is not warranted.  Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996).


ORDER

A higher 60 percent rating is granted for the left TKR retroactively effective from May 2006, subject to the statutes and regulations governing the payment of VA compensation.


REMAND

As concerning his remaining claims that also are at issue in this appeal, in March 2011 the Veteran filed a petition to reopen his claim of entitlement to service connection for a right shoulder condition, including as secondary to service-connected disabilities.  In a June 2012 rating decision, the RO denied service connection for a right shoulder condition.  In October 2012, in response, he submitted a timely NOD regarding the denial of this claim.  He has not been provided an SOC concerning this claim, however.  The Court has held that, where the record contains an NOD as to an issue, but no SOC, the issue must be remanded (rather than merely referred) to the agency of original jurisdiction (AOJ), which, here, is the RO, to provide the Veteran this necessary SOC and to give him an opportunity, in response, to complete the steps necessary to perfect his appeal of the claim by also filing a timely substantive appeal (VA Form 9/equivalent statement).  See Manlicon v. West, 12 Vet. App. 238 (1999).


As concerning his claims of additional entitlement to service connection for lumbar spine DJD, right knee DJD, right and left hip DJD, right and left sacroiliac DJD, by way of background, he filed informal claims for these conditions in August 2007.  He was afforded VA examinations in March 2008 and in July 2012.  He subsequently was granted service connection in February 2009 for a right leg discrepancy due to left leg lengthening associated with his left TKR.  But, to date, a VA medical nexus opinion as not been rendered as to whether he has still additional disability that is the result of this now service-connected right leg discrepancy.  This perhaps is because the focus has been instead on his left TKR, without also considering this right leg discrepancy that is a consequence.  And once VA endeavors to provide an examination for a medical nexus opinion in a service-connection context, even if not statutorily obligated to, it must ensure the examination and opinion are adequate, else, notify the Veteran why such an examination and opinion cannot be provided.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

Further development also is necessary before deciding the derivative TDIU claim.

A TDIU may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a).

Thus, VA must assess whether there are circumstances, apart from any 
non-service connected conditions and advancing age, which would justify a TDIU.  See Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993).


While the regulations do not provide a definition of "substantially gainful employment," the VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides."  Also, in Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income.

In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court also discussed the meaning of "substantially gainful employment."  In this context, the Court noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975):

The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits.  The test is whether a particular job is realistically within the physical and mental capabilities of the claimant.

Marginal employment, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment."  38 C.F.R. § 4.16(a). See also Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991).  That is, a Veteran may be considered as unemployable upon termination of employment that was provided on account of disability or in which special consideration or accommodation was given on account of the same.  See 38 C.F.R. § 4.18.  Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person.  38 C.F.R. § 4.16(a).  

Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold.  Id.  Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop.  Id.

Requiring a Veteran to prove that he is 100-percent, i.e., totally unemployable is different than requiring he prove that he cannot maintain substantially gainful employment.  The use of the word "substantially" suggests intent to impart flexibility into a determination of the Veteran's overall employability, whereas a requirement that a Veteran prove 100-percent unemployability leaves no flexibility.  Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001).

At present, even considering the increase in this decision in the rating for the Veteran's left TKR to 60 percent and the fact that disabilities resulting from common etiology or single accident are considered as one for purposes of determining whether the threshold minimum percentage requirements of 38 C.F.R. § 4.16(a) are met, the Veteran still does not meet the requirements of this VA regulation for consideration of a TDIU.  However, a TDIU also may be granted on an extra-schedular basis under the alternative provisions of § 4.16(b) even though he fails to meet these percentage requirements, if it is established he is unemployable on account of his service-connected disabilities.

This claim therefore should be referred to the Director of the Compensation and Pension Service for a determination of whether the Veteran is unable to secure or maintain substantially gainful employment as a result of his service-connected disabilities, in particular on account of his left TKR.  He reportedly last worked in 2004 or thereabouts and claims to have quit because of this disability.  A VA compensation examiner has ruled out the Veteran returning to work in any physically demanding capacity but has left open the possibility of him still being able to work a sedentary job.  But what exactly this might entail has not been specified, including given his level of education, prior work experience and training.

Further, the AMC/RO should attempt to obtain any further information regarding his work-related injury at Carter Machinery in 1980 (or any other employment injuries), to include any records demonstrating the receipt of worker's compensation or disability benefits through the State Insurance Fund Corporation.  On remand, the AMC/RO should request that the Veteran submit any necessary release forms required to obtain a copy of the determination associated with the his claims for worker's compensation, as well as copies of all medical records underlying those determinations.  See 38 C.F.R. § 3.159(c) (2012).

Finally, to ensure completeness of the record, the RO/AMC should obtain all outstanding VA treatment records.  See Bell v. Derwinski, 2 Vet. App. 611 (1992).

Accordingly, these claims are REMANDED for the following additional development and consideration:

(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.  Obtain all additional VA treatment records from the Salem VAMC dated since January 2012.  Since these records are in the custody of a Federal department or agency, namely, VA, the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(2).  So make as many attempts to obtain these records as this VA regulation requires.  Also appropriately notify the Veteran if unable to obtain these records.  38 C.F.R. § 3.159(e)(1).

2.  Also ascertain whether the Veteran has any additional medical or other evidence pertaining to evaluation or treatment of his lumbar spine DJD, right knee DJD, right and left hip DJD, and right and left sacroiliac DJD.  This includes, but is not limited to, 

any records or other documents pertaining to worker's compensation awards, including any medical records underlying the determinations.

If necessary, have him authorize the release of any confidential records needing to be obtained.

All records and/or responses received shall be associated with the claims file.  If any records sought are not obtained, he and his representative shall be notified of the records that were not obtained, explained the efforts taken to obtain them, and described further action to be taken.  38 C.F.R. § 3.159(c) and (e).

3.  Also send the Veteran a VCAA notice letter addressing his derivative claim of entitlement to a TDIU.

Also ask that, in response, he identify all relevant evidence regarding his employment status.  This includes providing information concerning jobs he had in the past and why they ended, such as on a VA TDIU application (VA Form 21-8940).

If records concerning his prior employment need to be obtained, then obtain them.  If records identified are not in the custody of a Federal department or agency, then the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(1), whereas subpart (c)(2) controls if the records are in the custody of a Federal department or agency.  The Veteran should be appropriately notified if the RO/AMC is unable to obtain any identified records. 38 C.F.R. § 3.159(e)(1).  

4.  Upon receipt of all additional records and all necessary information concerning the derivative TDIU claim, schedule an appropriate VA compensation examination for medical comment concerning the etiologies of the Veteran's lumbar spine DJD, right knee DJD, right and left hip DJD, and right and left sacroiliac DJD.  To facilitate making these important determinations, the claims file and a complete copy of this REMAND must be made available to and reviewed by the examiner.  The VA examination report should indicate this has been accomplished.  All necessary diagnostic testing and evaluation should be performed.

The examiner should diagnose and describe all lumbar spine, right knee, right and left hip, and right and left sacroiliac disabilities found to be present.

The examiner should then provide opinion concerning the likelihood (very likely, as likely as not, or unlikely) that any current lumbar spine, right knee, right and left hip, and right and left sacroiliac disabilities incepted during the Veteran's active military service from November 1954 to November 1974, or, if involving DJD (arthritis), within one year of his separation from service, so meaning by November 1975, or are otherwise related to any event, disease, or injury during his service, including alternatively secondary to (meaning caused or permanently aggravated by) the service-connected left TKR and right leg discrepancy due to left leg lengthening associated with the left TKR.  



The examiner must provide a comprehensive report including complete rationales for all opinions expressed and conclusions reached, if necessary citing to specific evidence in the file.

A medical opinion is needed, as well, concerning whether the Veteran's service-connected disabilities (including especially those affecting his left knee and right leg) render him incapable of obtaining and maintaining employment that could be considered substantially gainful versus just marginal in comparison.  It is essential the designated examiner have opportunity to review the evidence in the claims file, including a complete copy of this decision and remand.  The VA examiner must discuss the rationale for the opinion provided concerning the Veteran's employability, if necessary citing to specific evidence in the file.

In making this determination, the VA examiner must consider the Veteran's level of education, prior work experience and training, etc.  The examiner should not consider the Veteran's advancing age or impairment attributable to disabilities that are not service connected.

5.  Ensure the examiner's opinions are responsive to these determinative issues of service connection and employability.  If not, take corrective action.  38 C.F.R. § 4.2.


6.  Provide the Veteran an SOC concerning his petition to reopen his claim for service connection for a right shoulder condition.  Also advise him that he still needs to file a substantive appeal (VA Form 9 or equivalent statement) concerning this claim, in response to this SOC, to complete the steps necessary to perfect his appeal of this claim to the Board.  See 38 C.F.R. §§ 20.200, 20.202, 20.300, 20.301, etc.  As well, advise him of the amount of time he has for doing this.  38 C.F.R. §§ 20.302, 20.303, 20.304, 20.305, and 20.306.  Only if he perfects his appeal of this claim should it be returned to the Board for further appellate consideration.

7.  Then adjudicate his remaining claims in light of the additional evidence, both for service connection for lumbar spine DJD, right knee DJD, right and left hip DJD, right and left sacroiliac DJD, and for a TDIU.  Regarding the latter, if deemed warranted, refer this derivative TDIU claim to the Director of C&P Service for consideration of a TDIU on an extra-schedular basis under 38 C.F.R. § 4.16(b).

If these claims continue to be denied or are not granted to the Veteran's satisfaction, send him and his representative an SSOC and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these remaining claims.


The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims 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).




______________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs