Citation Nr: 1318493 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 07-20 641 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for the service-connected chondromalacia with synovitis of the right knee prior to September 10, 2012. 2. Entitlement to an increased rating for the service-connected right knee disability manifested by a total knee replacement, beginning on September 10, 2012. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1977 to September 1980 and from December 1980 to September 1989. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in November 2006 by the RO. A review of the Virtual VA paperless claims processing system reveals an October 2012 rating decision and VA treatment records that are pertinent to the present appeal. The Veteran provided testimony at an October 2010 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. This matter was remanded by the Board in December 2010 and May 2012. In an October 2012 rating decision, the RO assigned a temporary total 100 percent evaluation following the performance of a right total knee replacement beginning on September 10, 2012 to November 1, 2013 when a 30 percent evaluation was assigned. The issue of increased compensation for the service-connected right total knee replacement beginning on September 10, 2012 is being remanded to RO via the Appeals Management Center (AMC). FINDINGS OF FACT For the period of the appeal prior to September 10, 2012, the service-connected chondromalacia with synovitis of the right knee is shown to be manifested by related changes of mild osteoarthrosis and painful motion; neither a compensable limitation of flexion or extension, nor any instability or recurrent subluxation is demonstrated; the service-connected right knee disability picture is shown to have more nearly approximated that of a dislocated semilunar cartilage with frequent episodes of locking, pain and effusion requiring surgery in January 2011. CONCLUSIONS OF LAW 1. The criteria for the assignment of a rating in excess of 10 percent for the service-connected right knee disability on the basis of limitation of motion or instability or recurrent subluxation prior to September 10, 2012, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.20, 4.40, 4.45, 4.59, 4.71a including Diagnostic Codes 5003, 5256-5263. 2. The criteria for the assignment of a rating of 20 percent, but not higher for the service-connected right knee disability on the basis of a dislocated cartilage requiring surgery prior to September 10, 2012, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.20, 4.40, 4.45, 4.59, 4.71a including Diagnostic Codes 5003, 5256-5263. REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). A December 2005 VCAA letter explained the evidence necessary to substantiate the claims for service connection. This letter also informed the Veteran his and VA's respective duties for obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). A letter dated in May 2009 notified the Veteran of how VA determines disability ratings. VCAA also provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. An examination is deemed "necessary" if the record does not contain sufficient medical evidence for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In the present appeal, the Board finds that reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claims, and that there is no reasonable possibility that further assistance would aid in substantiating such claims. In particular, the record contains the Veteran's service treatment records, VA medical records, and VA examination reports. The Veteran was provided VA examinations in August 2006, June 2008, January 2011, and June 2012. Additionally, the Veteran was also afforded an opportunity to present testimony at a hearing before the Board in October 2010. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. II. Law and Regulations Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole-recorded history. 38 C.F.R. §§ 4.2, 4.41. An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-06 (1995). The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate for an increased rating claim, if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a Diagnostic Code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45 (2012). VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, the Court clarified that, although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, in Mitchell, the Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any other factors. Therefore, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The guidance provided under DeLuca must be followed in adjudicating claims where a rating under the Diagnostic Code provisions governing limitation of motion should be considered. However, the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the Diagnostic Code provisions predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2012). VA Office of General Counsel has provided guidance concerning increased rating claims for knee disorders. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). VA General Counsel has stated that compensating a claimant for separate functional impairment under Diagnostic Code 5257 and 5003 does not constitute pyramiding. See VAOPGCPREC 23-97 (July 1, 1997). VA General Counsel held in VAOPGCPREC 23-97 that a veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, provided that a separate rating must be based upon additional disability. When a knee disorder is already rated under Diagnostic Code 5257, the veteran must also have limitation of motion under Diagnostic Code 5260 or 5261 in order to obtain a separate rating for arthritis. In VAOPGCPREC 9-98, General Counsel also held that if a veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also x-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. In addition, General Counsel considered a hypothetical situation in which a knee disability was evaluated under Diagnostic Code 5259 that was productive of pain, tenderness, friction, osteoarthritis established by x-rays, and a slight loss of motion. For the purposes of the hypothetical, it was assumed that Diagnostic Code 5259 did not involve limitation of motion. Given findings of osteoarthritis, the General Counsel stated that the availability of a separate evaluation under Diagnostic Code 5003 in light of sections 4.40, 4.45, 4.59 must be considered. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Absent x-ray findings of arthritis, limitation of motion should be considered under Diagnostic Codes 5260 and 5261. The claimant's painful motion may add to the actual limitation of motion so as to warrant a rating under Diagnostic Codes 5260 or 5261. The General Counsel further noted in VAOPGCPREC 9-98 that the removal of the semilunar cartilage may involve restriction of movement caused by tears and displacements of the menisci, but that the procedure may result in complications such as reflex sympathetic dystrophy, which can produce loss of motion. Therefore, limitation of motion is a relevant consideration under Diagnostic Code 5259, and the provisions of 4.40, 4.45, and 4.59 must be considered. In addition, the VA General Counsel has held that separate ratings may be assigned under DC 5260 and DC 5261 for disability of the same joint. VAOPGCPREC 9-2004 (September 17, 2004). The effective date of an award of increased compensation to a Veteran shall be the earliest date as of which it is ascertainable that an increase in disability has occurred, if application is received within one year of such date. 38 U.S.C.A. § 5110(b)(2); 3.400(o)(2). III. Analysis The Veteran is seeking an increased rating for his service-connected right knee disability. By way of history, the Veteran underwent a right knee arthroplasty in January 1989. Service connection for chondromalacia with synovitis of the right knee was established pursuant to a February 1990 rating decision. An initial 10 percent rating was assigned, effective on September 14, 1989 pursuant to Diagnostic Code 5257. The Veteran submitted a claim for an increased rating in February 2006. On September 10, 2010, the Veteran underwent a total right knee replacement. In an October 2012 rating decision, a temporary total rating was assigned pursuant to 38 C.F.R. § 4.30 based on surgery necessitating convalescence effective from September 10, 2010, the date of the surgery. Following surgery, the service-connected right knee disability was recharacterized as right total knee replacement status post chondromalacia with synovitis of the right knee. In the same rating decision, the RO assigned a 30 percent evaluation following prosthetic replacement from November 1, 2013, pursuant to the criteria at 38 C.F.R. § 4.71a, Diagnostic Code 5055. At the time the Veteran submitted his claim for an increased rating the service-connected right knee disability was rated under Diagnostic Code 5257. Although chondromalacia does not have its own evaluation criteria assigned in VA regulations, the RO determined that the most closely analogous Diagnostic Code is 38 C.F.R. § 4.71a, Diagnostic Code 5257 (other impairment of the knee). Under 38 C.F.R. § 4.71a, Diagnostic Code 5257, a 10 percent evaluation is assigned where there is evidence of slight recurrent subluxation or lateral instability. A 20 percent evaluation is appropriate where there is evidence of moderate recurrent subluxation or lateral instability. A 30 percent evaluation is warranted where there is severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2012). Diagnostic Code 5258 grants a 20 percent evaluation for dislocation of semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258 (2012). Diagnostic Code 5259 grants a 10 percent evaluation for removal of semilunar cartilage that is symptomatic. 38 C.F.R. § 4.71a, Diagnostic Code 5259 (2012). Diagnostic Code 5260, concerning limitation of flexion of the leg, provides a noncompensable rating if flexion is limited to 60 degrees, a 10 percent rating where flexion is limited to 45 degrees, a 20 percent rating where flexion is limited to 30 degrees, and a maximum 30 percent rating if flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2012). Diagnostic Code 5261, evaluating limitation of extension of the leg, provides a non-compensable rating if extension is limited to five degrees, a 10 percent rating if limited to 10 degrees, a 20 percent rating if limited to 15 degrees, a 30 percent rating if limited to 20 degrees, a 40 percent rating if limited to 30 degrees, and a 50 percent rating if limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261; see also 38 C.F.R. § 4.71, Plate II (2012) (showing normal flexion and extension as between 0 degrees and 140 degrees). Normal range of motion for the knee is defined as follows: flexion, 0 degrees to 140 degrees; and extension, 140 degrees to 0 degrees. 38 C.F.R. § 4.71, Plate II (2012). Additionally, if the knee condition involves arthritis, the knee disability may be rated under provisions for evaluating arthritis. Under Diagnostic Code 5003, degenerative arthritis (hypertrophic or osteoarthritis) established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). 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, the disability is to be rated as follows: with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, 20 percent; with X- ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, 10 percent. Id. 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. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). A May 2005 VA X-ray study noted a normal right knee with no evidence of fracture or dislocation. The visualized bony structures were unremarkable, the joint spaces were well maintained, and there was no soft tissue swelling. On VA examination in August 2006, the Veteran complained of popping and constant pain in the right knee. He reported using a knee brace and having elastic knee braces that were removed at the time of the examination. The examiner found no swelling, redness or tenderness of the right knee. With initial flexion, the Veteran complained of pain in the knee. The examination could not be completed, due to the Veteran's reports of pain that he rated as 7 out of 10 in severity. The examiner noted there seemed to be some exaggeration of discomfort with the examination attempted. In his December 2006 Notice of Disagreement, the Veteran argued that the August 2006 VA examination did not adequately describe his symptomatology. As a result, he was afforded an additional VA examination. An August 2008 X-ray study revealed a radiographically normal right knee. The knee was normal in appearance and in alignment of the bony structures and joints. On VA examination in June 2008, the Veteran described having constant, dull, aching and occasional pain in the knees. He reported that the right knee "[gave] away" about three times a month. He denied any locking of the knee joint, episodes of dislocation or recurrent subluxation. There was crepitation on movement of the right knee joint and tenderness along the medial and lateral joint lines. There was no objective evidence of edema, effusion, instability, weakness, redness, heat, abnormal movement or guarding. The range of motion testing revealed forward flexion from 0 to 120 degrees both actively and passively with pain at 120 degrees. Following repeated movement against resistance, the right knee flexion was from 0 to 125 degrees, passively. When measured 30 minutes later, right knee flexion was from 0 to 110 degrees actively with pain at 110 degrees and 0 to 120 degrees passively. Extension was a full to 0 degrees, bilaterally. The right knee was stable with no anterior or posterior, medial or lateral laxity and McMurray's test was negative. The X-ray studies of the right knee revealed mild osteoarthritis. An MRI performed in May 2010 revealed a posterior tear of the medial meniscus. A September 2010 VA orthopedic surgery consultation note, the examiner noted the Veteran failed conservative treatment for his right knee including NSAIDS, narcotics, physical therapy and rest. The examiner diagnosed a right knee meniscal tear and indicated the Veteran was a candidate for a right knee arthroscopy with medial meniscectomy. In an October 2010 hearing, the Veteran identified an MRI that showed a torn right knee meniscus. He testified that he was scheduled for an arthroscopic surgery in January 2011. In December 2010 the Board remanded the appeal to obtain medical records referable to the January 2011 arthroscopy and afford the Veteran a VA examination. On examination in January 2011, the Veteran complained of stiffness, instability or giving away, lack of endurance, swelling, redness and heat in both knees. He reported that the right knee locked. He reported having flare-ups of increased pain in the right knee rated as 8 or 9 out of 10 in severity. The flare ups occurred 3 to 4 times per week and lasted from 10 minutes to a few hours. The flare ups were precipitated by standing for 10 to 15 minutes or sitting or driving for an hour and half. He reported using a cane during the week, but denied using it at work. He denied a history of inflammatory arthritis. On examination, there was no objective evidence of painful motion, edema, effusion, instability, weakness, tenderness, redness, heat, abnormal movement, or guarding of movement. The Veteran's gait was unremarkable, with no abnormal weight bearing, ankylosis, or objective evidence for pain in the right knee with range of motion testing. Three repetitions of range of motion were conducted with similar results. The Veteran had right knee flexion from 0 to 110 degrees with pain at 110 degrees. The passive range of motion was 0 to 120 degrees with pain at 130 degrees. Extension of the right knee was full. Lachman's test and the anterior and posterior drawer test were normal bilaterally. McMurray's test was negative, bilaterally, despite the MRI finding of a torn medial meniscus in the right knee. The examiner stated, "[i]t [was] more likely than not that the Veteran's right knee medial meniscus tear [was] secondary to his work and developed after military service and that he ha[d] only chondromalacia patella of the right knee that [was] related to military service." A January 2011 arthroscopy of the right knee showed chondromalacic changes in the medial femoral condyle and medial meniscus tear that was debrided. The Veteran was noted to have full extension and full flexion. The knee was stable. A May 2011 urgent care note indicated that the Veteran got into an altercation at work and diagnosed a right knee sprain. On examination, there were mild swelling, a full range of motion, and no ligamentous instability. A June 2011 VA orthopedic note indicates that the Veteran worked as a corrections officer and had been having right-sided knee pain after he got in an altercation with an inmate in February 2011. An August 2011 orthopedic surgery note indicated the Veteran injured the knee twice in the past six months having to subdue people at work. A March 2012 X-ray study showed mild narrowing of the medial compartment suggestive of mild right knee osteoarthrosis. There were no interval changes noted since May 2011. On examination in June 2012, the Veteran described having flare-ups when his right knee buckled and gave out when he was bearing weight. The examiner indicated that this would be more likely than not due to his right knee injury sustained in February 2011 since he was noted to not have significant symptoms after his surgery and prior to that injury. The examiner noted the Veteran had a meniscus condition with frequent episodes of joint pain on the right with surgery in January 2011. On examination, the Veteran had flexion from 0 to 100 degrees with pain at 100 degrees. Extension was to 0 degrees with no evidence of painful motion. Range of motion after repetitive use testing was 0 to 100 degrees flexion and extension to 0 degrees. He had no additional limitation in range of motion after range of motion testing. He had less movement than normal and pain on movement in the right leg. The Veteran had tenderness or pain to palpation in joint line or soft tissues of the right side of the knee. He had normal right knee flexion and extension muscle strength. The Veteran had normal anterior and posterior right knee stability, normal medial-lateral instability, and no recurrent patella subluxation/ dislocation. The X-ray studies revealed arthritis in the right knee. The examiner added that the Veteran's synovitis had resolved without residuals. The examiner noted that chondromalacia was still present on MRI scanning, but was not clinically significant enough for the Veteran to seek medical care for many years after military service. As noted, Diagnostic Code 5257 assigns evaluations for evidence of recurrent subluxation or lateral instability. In the June 2008 and January 2011 VA examination, the Veteran asserted having giving away in the right knee. The June 2008, January 2011, and June 2012 VA examination reports revealed normal lateral stability. As there is no objective evidence of subluxation or lateral instability, a higher rating based on instability or recurrent subluxation is not assignable. While the VA examiner in December 2010 attributed the right knee medial meniscus tear to work-related injury after service and not to the service-connected right knee disability, the Board finds that this statement is not supported by the evidence of record. To the extent that the Veteran is not shown to have clearly related the onset of the dislocated cartilage of the right knee requiring surgery in January 2011 to a post-service injury, the Board finds that Diagnostic Code 5258 is for application in this case. Hence, on this record, an increased rating of 20 percent based on a dislocated semilunar cartilage is warranted. Diagnostic Code 5260 contemplates a noncompensable evaluation where there is limitation of knee flexion to 60 degrees, which is far exceeded by the 110 degrees of right knee flexion recorded in June 2008 and January 2011 and the 100 degrees of right knee flexion recorded in June 2012. Furthermore, Diagnostic Code 5261 contemplates a noncompensable evaluation with a limitation of knee extension to 5 degrees. The Veteran had full extension in connection with the VA examinations of record. Thus, a compensable rating cannot be assigned under Diagnostic Code 5261. Based on these findings, a disability rating in excess of 10 percent based on limitation of flexion or extension of the right knee is not assignable. As noted, in DeLuca, the Court held that VA's review of a service-connected musculoskeletal disability must include an assessment of the functional impairment caused by the disability. 38 C.F.R. §§ 4.40, 4.45, and 4.59 (2012). The Board acknowledges that the Veteran complains of having chronic right knee pain, as well as flare ups of the pain. He also is shown to have mild arthritic changes involving the right knee. The evidence of record, however, does not reflect a level of impairment that warrants a rating higher than 10 percent based on the functional impairment due to pain or flare ups of pain involving the right knee disability. On the most recent examination, the Veteran exhibited a limitation of flexion to only 100 degrees and full extension. Moreover, the June 2012 VA examiner also stated that the synovitis had resolved without residuals. The Board has reviewed the record to determine whether or not any other Diagnostic Code may be applicable to the Veteran's disabilities and entitle him to a higher rating. As the Veteran has never been diagnosed with ankylosis of the right knee, nonunion or malunion of the tibia and fibula, or genu recurvatum, there is no basis for application of Diagnostic Codes 5256, 5262 or 5263. Upon review, there is no basis for the assignment of a higher rating on the basis of fatigability, weakness, incoordination or the like. Although the Veteran has reported experiencing pain and giving away, the Board finds that these manifestation alone do not warrant the assignment of a rating in excess of the 10 percent assigned for the service-connected right knee disability for the initial period of the appeal. The Board has considered whether this case should be referred to the Director, Compensation and Pension Service, for extraschedular consideration in rating the Veteran's right knee disability The governing norm in such exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b). As the service-connected right knee disease process is not shown to be productive of an exceptional or unusual disability picture, there is no basis for referring this issue for extraschedular consideration. See 38 C.F.R. 3.321(b)(1). Accordingly, on this record, the Board finds that an increased rating of 20 percent for the service-connected right knee disability of the basis of a dislocated cartilage is warranted. ORDER An increased rating in excess of 10 percent for the service-connected right knee disability on the basis of limitation of motion or recurrent subluxation or lateral instability is denied. A separate rating of 20 percent, but no higher for the service-connected right knee disability on the basis of having a dislocated cartilage prior to September 10, 2012 is grant. REMAND As noted, the RO, in an October 2012 rating decision, assigned a temporary total rating following the performance of a right total knee replacement beginning on September 10, 2012 to November 1, 2013 when a 30 percent evaluation was assigned under the provisions of Diagnostic Code 5055. To the extent that the rating decision involved the assignment of the temporary total rating and the schedular rating of 30 percent in a prospective manner, these matters must be returned to the RO for further review and action. Accordingly, this remaining matter is REMANDED to the RO for the following action: After completing all necessary development in an appropriate manner, the RO should readjudicate the claim for increased compensation for the service-connected right total knee replacement in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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). ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs