Citation Nr: 1319143 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 04-03 175A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an increased evaluation for a right knee disability, currently evaluated as 10 percent disabling. 2. Entitlement to an increased evaluation for a left knee disability, currently evaluated as 10 percent disabling. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran performed active military service from May 1974 to April 1979. This matter arises to the Board of Veterans' Appeals (Board) from July 2003 and August 2004 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In pertinent part of a July 2003 rating decision, the RO assigned an increased (10 percent rating) for the left knee, effective March 31, 2003, and continued a noncompensable rating for the right knee. In June 2004, the RO assigned a temporary total (100 percent) right knee rating effective December 5, 2003, through January 31, 2004, based on surgery and convalescence, and then resumed a noncompensable right knee rating effective February 1, 2004. The appealed August 2004 RO rating decision granted a 10 percent rating for the right knee, effective July 27, 2004. The Veteran submitted a notice of disagreement (hereinafter: NOD) to the effective date for the 10 percent rating. The Board must address each jurisdiction-conferring NOD submitted in this case. Just as the Court's jurisdiction is dependent on a jurisdiction-conferring NOD, the Board's jurisdiction, too, derives from a claimant's NOD. See Marsh v. West, 11 Vet. App. 468, 470 (1998) ("an untimely NOD deprives [BVA] of jurisdiction"); Garlejo v. Brown, 10 Vet. App. 229, 232 (1997) (Board did not err in refusing to adjudicate matter as to which no NOD was filed). When the Board has jurisdiction over a particular matter, that jurisdiction is "mandatory." In the Matter of Fee Agreement of Cox, 10 Vet. App. 361, 374 (1997), vacated in part on other grounds sub nom. Cox v. West, 149 F.3d 1360, 1365 (Fed.Cir.1998) (expressly affirming that "the [C]ourt [of Veterans Appeals]" properly held that such a decision by the Secretary is mandatory). In March 2005, the RO assigned an earlier effective date of March 31, 2003, for the 10 percent right knee rating, which satisfies an NOD with the effective date. However, the increased schedular rating issue remains on appeal. See A.B. v. Brown, 6 Vet. App. 35, 39 (1993) (On a claim for an original or an increased disability rating, the claimant is presumed to seek the maximum benefit allowed by law and regulation and it follows that such a claim remains in controversy where less than the maximum schedular benefit is awarded) (cited in Fenderson v. West, 12 Vet. App. 119, 126 (1999). In pertinent part of an April 2006 rating decision, the RO denied a temporary total rating for the right knee and denied a total disability rating based on individual unemployability (hereinafter referred to as TDIU). The Veteran submitted a NOD to these issues in June 2006. In January 2007, the RO assigned a temporary total right knee rating from December 21, 2005, through April 30, 2006, based on right knee surgery and convalescence, and then resumed a 10 percent rating. This grant satisfies the NOD submitted in June 2006. In November 2007, he submitted a new NOD pertaining to the dates of termination of the right knee temporary total ratings. The NOD is untimely with respect to the June 2004 rating decision that assigned a temporary total rating effective December 5, 2003, through January 31, 2004, but is timely with respect to the January 2007 RO decision that assigned a temporary total right knee rating from December 21, 2005, through April 30, 2006. In a March 2007 rating decision, the RO denied an extension of a temporary total rating; however, by virtue of the November 2007 NOD, this issue was already on appeal. In October 2008, the Board remanded the appeals for increased schedular ratings for both knees. In May 2010, the Board denied increased ratings for each knee and in October 2010, the Board denied TDIU. The Veteran appealed the May 2010 Board decision to the United States Court of Appeals for Veterans Claims (hereinafter: the Court). In April 2011, the Court vacated and remanded the May 2010 Board decision. The Veteran did not appeal the October 2010 Board decision that denied TDIU. Thus, the Board's denial finally adjudicated the Veteran's June 2006 appeal for TDIU. In September 2012, the Board remanded the case for a VA compensation examination of the knees. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. Although the Veteran did not request a hearing, he requested and received an informal conference at the RO in February 2005. With respect to TDIU, although the Board denied TDIU in October 2010 and the Veteran did not appeal that decision, he has appealed for higher schedular ratings for his knees and he has alleged unemployability due to the knees. Thus, a new claim for TDIU exists. Rice v. Shinseki, 22 Vet. App. 447 (2009) (if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether TDIU is warranted). In this case, the Veteran and the record have raised the question of unemployability. The Board has therefore added a TDIU claim to page 1 to reflect the Board's jurisdiction over this matter. Further development is needed to properly adjudicate the TDIU claim. Entitlement to TDIU and extra-schedular considerations are addressed in the REMAND portion of the decision below and are remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to December 5, 2003, the right knee was manifested by limited motion, both in flexion and extension, due to pain; additional functional impairment due to pain on use is shown; instability is not shown. 2. The Veteran underwent surgery for the service-connected right knee disability on December 5, 2003, a temporary total rating was assigned from December 5, 2003, through January 31, 2004; a 10 percent rating was resumed on February 1, 2004, and the Veteran has not appealed these dates. 3. During the middle rating period, that is, from February 1, 2004, through December 20, 2005, the right knee disability was manifested by painfully limited motion to approximately 30 degrees in flexion and to approximately 15 degrees in extension, when considering additional functional impairment due to pain on use; neither instability nor removal of the semilunar cartilage is shown. 4. The Veteran underwent surgery for the service-connected right knee disability on December 21, 2005; a temporary total rating was assigned effective December 21, 2005, through April 30, 2006; a 10 percent rating was resumed on May 1, 2006, and the Veteran appealed for an extended period of his temporary total rating. 5. Medical evidence reflects that the Veteran was medically unable to return to work prior to July 7, 2006, due to the right knee surgery. 6. During the most recent rating period, that is, from August 1, 2006, the right knee disability has been manifested by painfully limited motion in flexion and in extension; additional functional impairment due to pain on use is shown; neither instability nor removal of the semilunar cartilage is shown. 7. Throughout the entire appeal period, the service-connected left knee disability has been manifested by painful limitation of motion in flexion and in extension and additional functional impairment due to increased pain on use; neither left knee instability nor left knee semilunar cartilage removal is shown. CONCLUSIONS OF LAW 1. For the period prior to December 5, 2003, the criteria for a schedular rating greater than 10 percent for limited motion in flexion of the right knee are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2012). 2. For the period prior to December 5, 2003, the criteria for a separate 10 percent schedular rating for limited motion in extension of the right knee are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261 (2012). 3. For the period from February 1, 2004, through December 20, 2005, the criteria for a 20 percent schedular rating for limited motion in flexion of the right knee are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2012). 4. For the period from February 1, 2004, through December 20, 2005, the criteria for a separate 20 percent schedular rating for limited motion in extension of the right knee are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261 (2012). 5. The criteria for an extension of a temporary total rating for right knee surgery and convalescence from May 1, 2006, through July 31, 2006, are met. 38 C.F.R. § 4.30 (a) (2012). 6. For the period commencing August 1, 2006, the criteria for a schedular rating greater than 10 percent for limited motion in flexion of the right knee are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2012). 7. For the period commencing August 1, 2006, the criteria for a separate 10 percent schedular rating for limited motion in extension of the right knee are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261 (2012). 8. For the entire appeal period, the criteria for a schedular rating greater than 10 percent for limited motion in flexion of the left knee are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2012). 9. For the entire appeal period, the criteria for a separate 10 percent schedular rating for limited motion in extension of the left knee are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has remanded the case for development. When the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this case, all remand orders have been complied with. VA must notify and assist claimants in substantiating claims for benefits. 38 U.S.C.A. § 5103A (West 2002); 38 U.S.C.A. §§ 5102, 5103 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant and his representative of any information and any medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA must also inform the claimant of any information and evidence not of record that VA will seek to provide and that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, although satisfactory notice was not supplied prior to the initial unfavorable rating decision, this timing error was remedied by a remand followed by adequate notice being supplied to the Veteran and his representative, followed by a supplemental statement of the case (SSOC) being issued. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to initial adjudication, this timing problem can be cured by the Board remanding for the issuance of notice followed by readjudication of the claim) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (issuance of notification followed by readjudication of the claim, such as a statement of the case (SOC) or supplemental statement of the case (SSOC), cures a timing defect). VA also has a duty to assist the claimant in the development of the claim. This duty includes assisting the claimant in obtaining service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All necessary development has been accomplished and adjudication may proceed without unfair prejudice to the claimant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has obtained VA and private medical reports identified. The claimant was afforded several VA medical examinations. These VA examination reports contain sufficient details and are adequate for rating purposes. 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Neither the claimant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the claimant is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). Temporary Total Ratings As noted in the Introduction, In January 2007, the RO assigned a temporary total right knee rating from December 21, 2005, through April 30, 2006, based on December 2005 right knee surgery and ensuing convalescence. The Veteran submitted an NOD pertaining to the termination of the temporary total rating. A total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established that a service-connected disability has required hospital treatment in a Department of Veterans Affairs or an approved hospital for a period in excess of 21 days or hospital observation at Department of Veterans Affairs expense for a service-connected disability for a period in excess of 21 days. 38 C.F.R. § 4.29 (2012). A temporary total convalescence rating will be assigned following hospital discharge or outpatient release, effective from the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge or outpatient release if the treatment of a service-connected disability resulted in: (1) Surgery necessitating at least one month of convalescence; (2) Surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight bearing prohibited); or, (3) Immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30 (a) (2012). A total rating may be extended as follows: (1) Extensions of 1, 2, or 3 months beyond the initial 3 months may be made under (1), (2), or (3) above. Additional extension of 1 or more months up to 6 months beyond the initial 6 months period may be made under (2) or (3) above upon approval of the Veterans Service Center Manager. 38 C.F.R. § 4.30 (b) (2012). In August 2006, the Veteran submitted a "To Whom It May Concern" letter from C. Moore, M.D., his private orthopedic surgeon. According to the doctor, after right knee surgery on December 21, 2005, the right knee underwent convalescence and a series of injections for severe degenerative joint disease. The Veteran was unable to return to work prior to July 7, 2006. Although some evidence indicates that the temporary total rating should have been for left knee surgery in December 2005, because the August 2006 private medical opinion appears to be based on otherwise correct facts concerning the Veteran's inability to work due to service-connected knee surgery, and because it is supported by a cogent rationale, it must be afforded weight in the matter. The Board therefore grants an extension of the temporary total right knee rating beginning on May 1, 2006, for three successive one-month periods, through July 31, 2006. Right Knee Schedular Ratings Disability ratings 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 (2012). Diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. The entire medical history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations, VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, or incoordination, including during flare-ups. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). 38 C.F.R. § 4.59 addresses painful motion. A portion of § 4.59 states: The intent of the schedule is to recognize painful motion with joint or peri-articular 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. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. When § 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 Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (the Board is required to consider all issues raised either by the claimant or reasonably by the record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Schafrath, 1 Vet. App. at 593 (applicable provisions of law and regulation should be addressed when they are made "potentially applicable through the assertions and issues raised in the record"). Burton v. Shinseki, 25 Vet. App. 1 (2011). 38 C.F.R. § 4.40 (2012) recognizes that functional loss may be due to pain or limitation of flexion, as specified in the rating schedule under 38 C.F.R. § 4.71a, and that functional loss caused by either factor should be compensated at the same rate. Hence, functional loss due to pain is to be rated at the same level as functional loss due to impeded flexion. Schafrath, 1 Vet. App. at 592. In Powell v West, 13 Vet. App. 31, 33-34 (1999), the Court reversed the Board's denial of an increased rating and instructed the Board to assign a 40 percent rating, the highest rating provided under the code, for a back disability, because the evidence showed "...pain on any type of movements." The Court reasoned that where there is "pain throughout the ranges of motion," then the Veteran is entitled to the maximum rating for limitation of motion. Id, at 34-35. If a Veteran or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then a total rating based on individual unemployability (TDIU) as a result of that disability must be considered. Rice v. Shinseki, 22 Vet. App. 447 (2009). Where an increase in disability is at issue, the present level of disability, rather than remote history, is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Court has held that where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). In this case, during the appeal period, the right knee has twice undergone surgery (although it remains in dispute whether the right knee underwent two surgeries, or both knees each underwent one surgery). Month-to month temporary total ratings were assigned under 38 C.F.R. § 4.30 immediately after both surgeries for the right knee. These two temporary total right knee rating periods are from December 5, 2003, through January 31, 2004, and from December 21, 2005, through July 31, 2006. Assignment of these two temporary total ratings for distinct time periods creates three separate rating periods in which to consider a schedular rating or ratings for the right knee. The three distinct rating periods for the right knee are: (1) prior to December 5, 2003; (2) February 1, 2004, through December 20, 2005; and, (3) from August 1, 2006. This scenario lends itself to consideration of "staged ratings," at least for the right knee. During these three rating periods, a 10 percent right knee rating has been in effect under Diagnostic Code 5014, Osteomalacia. The history of this disorder reflects that right knee degenerative joint disease with cartilage damage is also service-connected. According to Diagnostic Code 5014, osteomalacia is rated on limitation of motion of the affected parts, as arthritis, degenerative. 38 C.F.R. § 4.71a, Diagnostic Code 5014 (2012). The affect part in this case is the right knee, which may be rated under Diagnostic Codes 5260, 5261, and/or others. Under Diagnostic Code 5260, limitation of flexion of the leg at the knee (normal being to approximately 140 degrees) will be rated as follows: Flexion limited to 15 degrees is 30 percent. Flexion limited to 30 degrees is 20 percent. Flexion limited to 45 degrees is 10 percent. Flexion greater than 45 degrees is not compensable. 38 C.F.R. §§ 4.71 Plate II, 4.71a, Diagnostic Code 5260 (2012). Under Diagnostic Code 5257, slight knee disability due to instability or subluxation warrants a 10 percent rating. Moderate knee instability warrants a 20 percent rating and severe instability warrants a 30 percent rating. 38 C.F.R. §§ 4.71, Plate II, § 4.71a, Diagnostic Code 5257 (2012). Cartilage, semilunar, dislocated, with frequent episodes of locking, pain and effusion into the knee joint warrants a 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5258 (2012). Symptoms due to the removal of the semilunar cartilage of either knee warrant a 10 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5259 (2012). Where a Veteran has both a limitation of flexion and a limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. VA's General Counsel held that these separate ratings should each take into consideration any additional functional loss due to pain under 38 C.F.R. § 4.40 and DeLuca, and that separate ratings do not amount to pyramiding under 38 C.F.R. § 4.14. VAOPGCPREC 9-2004 (69 Fed. Reg. 59990 (2004)). Limitation of extension of the leg at the knee (normal extension being to approximately 0 degrees) will be rated as follows: Extension limited to 45 degrees is 50 percent. Extension limited to 30 degrees is 40 percent. Extension limited to 20 degrees is 30 percent. Extension limited to 15 degrees is 20 percent. Extension limited to 10 degrees is 10 percent. Extension limited to 5 degrees is 0 percent. 38 C.F.R. §§ 4.71 Plate II, 4.71a, Diagnostic Code 5261 (2012). Where a claimant has arthritis and instability of a knee, separate ratings are authorized under 38 C.F.R. § 4.71a. VAOPGCPREC 23-97 (62 Fed. Reg. 63604 (1997)). For a knee disability rated under Diagnostic Code 5257 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under Diagnostic Code 5260 or 5261 need not be compensable but must at least meet the criteria for a zero-percent rating. A separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. VAOPGCPREC 9-98 (63 Fed. Reg. 56704 (1998)). A June 2003 VA orthopedic compensation examination report reflects that the Veteran described intense right knee pains, with swelling, locking, catching, and giving-way. He had flare-ups of pain if standing for more than five minutes. Right knee range of motion was from 5 to 115 degrees, with tenderness to palpation over the medial joint line, and positive patellofemoral crepitus. The right knee was stable to varus and valgus testing at 0, 30, and 60 degrees. McMurray's sign was positive. A positive McMurray's sign/test is a cartilage click during knee manipulation and indicates meniscal injury, Dorland's Illustrated Medical Dictionary 1525, 1679 (28th ed. 1994). The examiner noted that no surgery had been performed on either knee. A September 2003 private magnetic resonance imaging study (MRI) showed a torn meniscus horn. An October 2003 VA out-patient treatment report notes intense right knee pains. A December 5, 2003, right knee arthroscopy report confirmed a torn meniscus, severe chondromalacia patella, arthritic changes, and plica syndrome (pain, tenderness, crepitus, and swelling of the knee joint, sometimes accompanied by weakness or locking of the joint, caused by fibrosis and calcification of the synovial plicae, usually the mediopatellar plica. Dorland's Illustrated Medical Dictionary 1637 (28th ed. 1994)). There was cartilage-loss all the way to the bone. Loose cartilage pieces were removed and the joint was debrided. In November 2004, while not within the earliest rating period but nevertheless relevant, the Veteran reported that his occupation had always been as a law enforcement officer and that right knee pains had limited his ability to do his job, even prior to his December 2003 surgery. From the above-mentioned facts, it appears that during the earliest portion of the appeal period, that is, prior to knee surgery on December 5, 2003, the right knee was manifested by painful motion and additional functional impairment due to pain on use. While flexion limited to 115 degrees does not warrant a compensable rating under Diagnostic Code 5260, the Board must also consider painful motion, 38 C.F.R. § 4.59, and the DeLuca tenets. Considering these, the criteria for a 10 percent schedular rating are more nearly approximated. However, because the right knee already enjoys a 10 percent rating for these manifestations, this means that the preponderance of the evidence is against a higher schedular rating for limited motion in flexion under Diagnostic Code 5260. As noted above, where there is both limited flexion and limited extension, separate ratings are warranted, as these are separate disabilities. Turning to limited extension of the right knee under Diagnostic Code 5261, where extension is limited to 5 degrees, a 0 percent schedular rating is warranted. In this case, a 5 degree limit in extension is shown. Considering the DeLuca tenets and 38 C.F.R. § 4.59, because additional painful motion and pain on use is shown, the criteria for a 10 percent schedular rating for limited extension of the right knee are more nearly approximated. Thus, for the period prior to December 5, 2003, the Board will grant a separate 10 percent schedular rating for right knee limited extension. During this earliest rating period, instability of the right knee joint is not shown. While the effects of dislocated knee cartilage are shown (frequent episodes of locking, pain, and effusion), these manifestations have been considered in the ratings assigned for limited motion. Thus, separate ratings under Diagnostic Codes 5257 and 5258 are not warranted. Turning to the next rating period, that is, February 1, 2004, through December 20, 2005, the Veteran had recovered from his December 2003 right knee arthroscopic surgery. The December 21, 2003, surgery report notes that loose knee-joint cartilage had been removed. The RO terminated the temporary total rating on January 31, 2004, and resumed a 10 percent right knee rating effective February 1, 2004. The Veteran did not appeal the termination date of the temporary total rating. A July 2004 VA compensation examination report reflects knee pain and some instability, manifested by giving way two to three times over the previous year. The Veteran denied any episodes of dislocation or recurrent subluxation. The examiner saw no right knee edema or erythema. There was tenderness to palpation along the medial and posterior aspects of the knee. No joint effusion was evident. There was a negative Lachman's sign and no joint laxity. There was pain to both varus and valgus stress. Range of flexion was 0 to 90 degrees, with pain throughout the entire range of flexion, but increased at 75 degrees. After repetitive motion testing the Veteran was capable of flexion to 80 degrees, with increased pain beginning at 65 degrees. No joint fatigability was noted. An X-ray was normal. The impression was of chondromalacia of the right knee with limited motion and constant pain. In November 2004, the Veteran reported that his occupation had always been as a law enforcement officer and that right knee pains had limited his ability to work. On examination in February 2005, the Veteran reported that knee braces provided some comfort and stability but no significant relief from pain. He denied locking, but described fatigability and lack of endurance. Right knee range of flexion was from 5 degrees to 100 degrees, with pain starting at 60 degrees of flexion. The examiner clarified that there was slight flexion contracture of three to five degrees, leaving a total range of about 95 degrees of painless motion. During a December 2005 VA compensation examination, the right knee flexed from 0 to 110 degrees passively; and from 8 to 100 degrees actively, with pain in both instances beginning at 35 degrees. The knees were laterally stable. There was tenderness to palpation along the joint line. There was no pain with patellar catch. Lachman's and anterior and posterior drawer signs were negative. The assessment was bilateral knee degenerative joint disease. From the above facts, it appears that during the middle rating period, that is, from February 1, 2004, through December 20, 2005, the right knee disability was manifested by painful motion and additional functional impairment due to pain on use. The pain-free flexion shown in February 2005 was only to 35 degrees. As noted earlier, painful flexion is not counted as useful range of motion. Schafrath, 1 Vet. App. at 592; Powell, 13 Vet. App. at 33-34. Thus, under Diagnostic Code 5260, when considering painful motion and the DeLuca tenets, the criteria for a 20 percent schedular rating are more nearly approximated. Therefore, the evidence favors a 20 percent schedular rating under Diagnostic Code 5260 for the right knee for this rating period. Turning to limited extension under Diagnostic Code 5261, during the middle appeal period, right knee extension lacked 8 degrees from full extension. This more nearly approximates the criteria for a 10 percent rating under Diagnostic Code 5261. Because additional painful motion and pain on use is shown, considering the DeLuca tenets, the criteria for the next higher schedular rating, a 20 percent schedular rating, for limited extension of the right knee to approximately 15 degrees are more nearly approximated. Thus, for the period beginning on February 1, 2004, through December 20, 2005, the Board will grant a separate 20 percent schedular rating for right knee limited extension. Instability of the right knee joint is not shown during this period. Although the July 2004 VA compensation examination report mentions instability, this was actually a complaint of giving-way two to three times over the previous year. The examination reports during the period clearly reflect that there was no lateral instability. Therefore, a separate rating under Diagnostic Code 5257 is not warranted. Although Diagnostic Code 5259 offers a separate 10 percent rating for removal of the semilunar cartilage, this does not appear to have occurred. Therefore, a separate rating under Diagnostic Code 5259 is not warranted. Turning to the final right knee rating period, the right knee underwent surgery on December 21, 2005, and the Veteran convalesced through July 31, 2005. The surgery report is similar to the previous, December 2003 surgery report and notes that loose cartilage was debrided, roughened cartilage was smoothed, and synovial fluid was drained. The surgeon anticipated a three-month recovery period and then reported, "He will be permanently restricted to occasionally standing, occasionally walking, occasionally bending and stooping, no squatting/crouching, no crawling, occasional push/pull, occasional stairs and ladders, and lifting on a light-duty basis up to 20 pounds." An October 2007 VA compensation examination report reflects that the claims files were not available for review. The examination report reflects that the left knee had been operated on in December 2005, rather than the right knee. This discrepancy has not been resolved. In any event, during the examination, the Veteran reported constant pain, weakness, and stiffness of the right knee. Most physical activities were restricted. He denied the use of assistive devices, except a knee brace, and he denied any episode of dislocation. There was no edema, erythema, or warmth of the knee joints. There was no tenderness to palpation. There was no hypertrophy of the bony prominences of the knees, or palpable crepitus with motion. There was no joint laxity or instability. Muscle strength was 5/5 in the quadriceps. Range of motion was from 0 to 136 degrees, with pain at the endpoint. Repetitive motion testing did not cause increased pain, decreased motion or joint fatigability. There was no instability, weakness or incoordination. There were no objective signs of pain. X-rays and MRI studies showed mild degenerative joint disease. Although a discrepancy has arisen concerning whether it was the left or the right knee that was operated on in December 2005, the Board concludes that the right knee is the correct knee for which to assign the recent temporary total rating. This is because the physician who performed the surgery reported that it was on the right knee, the RO granted the temporary total rating for the right knee for that surgery, the Board noted a corresponding right knee temporary total rating in its now-vacated May 2010 decision, and because the appellant made no argument to the Court that the December 2005 temporary total rating was assigned for the wrong knee. An August 2009 VA compensation examination report reflects the claims files were not available and again mentions that the left knee was operated on in December 2005. During the examination, the Veteran reported constant knee pain worsened by walking or standing. He had not specifically reported instability, though he had had some episodes of the knee giving way without locking. He had no history of dislocations. The physician observed mild genu varus (bent inward) knees, bilaterally. The Veteran walked with normal gait. Both knees exhibited crepitus. Neither patella appeared to abnormally sublux with pressure from the medial or lateral side. Range of motion of the right knee was from -5 to 140 degrees, with pain in the last 30 degrees of flexion, and also diminished to -5 to 120 degrees with repetition both actively and passively. Instability was tested, but not found. There was less than 5-mm motion with anterior or posterior drawer testing. McMurray's test suggested some problem with the meniscus. The Veteran appeared to have increased discomfort and loss of motion with repetitions both active and passive. There was some mild effusion. There was no redness or heat. The strength of the knee extensors and flexors appeared to be normal. X-rays and MRI studies showed a mild to moderate degree of degenerative arthritis. According to a June 2010 VA compensation examination report, the Veteran did not use a cane or crutch. The examiner acknowledged having performed the previous compensation examination in August 2009. The Veteran reported that there had not been a significant change in his knees since then. The knees continued to receive supartz injections. There were small, well healed arthroscope scars of both knees. Both knees lacked full extension. Repetitive flexing produced no added limitation of motion. There appeared to be no loss of strength or instability. The diagnosis was mild to moderate bilateral degenerative knee arthritis with mild bilateral genu varus. A July 2011 VA general medical compensation examination report reflects that the Veteran reported that he could walk about 100 yards due to knee pains and that he fell occasionally because of his knees. The Veteran reported that his need for narcotic pain killers precluded his job in law enforcement (his job ended in March 2011), as he could not carry a gun while using those drugs. The Veteran reported increased knee pains since his June 2010 examination. He reported occasional swelling and weakness in the knees. He wore bilateral Velcro knee braces. The right knee exhibited well healed surgery scars, tenderness in the patellar area, and crepitus during movement. The joint was stable. Flexion was to 100 degrees and painless. Extension lacked 5 degrees from full extension. Repetitive movement caused increased crepitus, but no increase in pain, weakness, or fatigability. The Veteran underwent a VA compensation examination of the knees in November 2012. The examiner noted that there is a discrepancy with respect to which knee underwent surgery in December 2005. The Veteran stated that it was his left knee, although the medical records reflect that the right knee underwent debridement and arthroscopy. During the November 2012 examination, the Veteran reported bilateral knee pains and weakness. The examiner noted minimal bilateral knee effusions. Right knee flexion was painful at 80 to 90 degrees, but had full extension. There was no instability and no crepitance. X-rays showed bilateral knee joint degeneration. The Veteran reported, and the examiner agreed, that both knees were subject to fatigability and pain with prolonged activity. The diagnoses were mild bilateral patellofemoral chondromalacia; mild bilateral degenerative arthritis of the knees; and, no apparent meniscus tear of either knee. The above facts strongly suggest that for the most recent portion of the appeal period, that is, since August 1, 2006, the right knee has been manifested by painful limitation of motion in flexion and extension and additional functional impairment due to increased pain on use. Neither right knee instability nor right knee semilunar cartilage removal is shown. While not all reports show each of these manifestations, the Board must reconcile the variances into a consistent picture that accurately represents all elements of the disability. 38 C.F.R. § 4.2. "It is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the rating may accurately reflect the elements of disability present." Under Diagnostic Code 5260, when considering painful motion, 38 C.F.R. § 4.59, and the DeLuca tenets, the criteria for a 10 percent schedular rating are more nearly approximated. However, because a 10 percent rating has already been assigned by the RO, the preponderance of the evidence is against a rating greater than 10 percent for right knee limited flexion during this rating period. Under Diagnostic Code 5261, when considering additional painful motion, 38 C.F.R. § 4.59, and pain on use and the DeLuca tenets, the criteria of a 10 percent schedular rating, for limited extension of the right knee to approximately 10 degrees are more nearly approximated. Thus, for the period beginning on August 1, 2006, the Board will grant a separate 10 percent schedular rating for right knee limited extension. The November 2012 VA examiner reviewed the medical history and reported that there is no history of dislocation of semilunar cartilage or removal of same. This medical opinion prohibits the Board from assigning a separate rating under Diagnostic Code 5258 or 5259, for either knee. Left Knee Schedular Ratings The manifestations of the left knee disability varied only slightly during the lengthy (over 10 years) appeal period. Where the manifestations varied, the evidence does not distinctly show when they increased, or decreased, in severity. Therefore, the Board is precluded from finding that the evidence demonstrates distinct time periods in which the service-connected left knee disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal. The assignment of staged ratings for the left knee is therefore unwarranted. Hart, 21 Vet. App. at 510. A June 2003 VA orthopedic compensation examination report reflects that the Veteran described intense bilateral knee pains, swelling, locking, catching, and giving way of the both knees. He had flare-ups of pain if standing for more than five minutes. Left knee range of motion was from 5 to 120 degrees. The left knee had positive patellofemoral crepitus, positive patellofemoral compression, negative medial joint line tenderness, positive lateral joint line tenderness, and 1+ effusion. The knee was stable to varus and valgus testing at 0, 30, and 60 degrees. X-rays showed degenerative joint disease. The relevant diagnosis was left knee degenerative joint disease mostly in the patellofemoral joint. A February 2005 VA compensation examination report reflects the use of knee braces which provided some comfort and stability but no significant relief from pain. The Veteran denied any locking, but described fatigability and lack of endurance. Range of motion in the left knee was from 0 to 110 degrees, with pain starting at 60 degrees of flexion. Repetitive motion caused an increase in pain was well as weakness of the quadriceps, resulting in less extension bilaterally. There was no evidence of instability. There was tenderness along the medial joint line bilaterally, right worse than left. X-rays showed medial joint space collapse. A December 9, 2005, VA compensation examination report reflects that left knee range of motion was zero to 105 degrees, passively; and 8 to 100 degrees, actively, with pain beginning at 25 degrees. There was no sign of lateral instability. There was tenderness to palpation along medial joint line. The assessment was degenerative joint disease. Private treatment reports dated in 2006 reflect "post-op" visits for the left knee, which tend to support the Veteran's contention that it was the left knee that underwent arthroscopy in December 2005. These post-op reports note supartz injections into the left knee at various times. An October 2007 VA compensation examination report reflects that the Veteran had undergone left knee arthroscopic surgery in December 2005 (this is controversial, as other medical evidence reflects that it was the right knee that underwent surgery). In any event, the Veteran reported constant pain, weakness, and associated stiffness of the left knee. He denied the use of any assistive devices besides a knee brace, and any episodes of dislocation. There was no edema, erythema, warmth, or tenderness to palpation. Crepitus was not detected. Strength was 5/5 in the quadriceps. Range of motion was from zero to 136 degrees, with pain at the endpoint. Repetitive motion testing did not cause increased pain, decreased motion, or joint fatigability. There was no instability, weakness, or incoordination. There was no objective sign of pain. Both X-ray and MRI studies showed mild degenerative joint disease. During an August 2009 VA compensation examination, the Veteran described constant knee pain worsened by walking or standing. He had not specifically appreciated instability, though he had had some episodes of the knee giving way without locking. He had no history of dislocations. The examiner noted mild genu varus, bilaterally, although the Veteran walked normally. There was some crepitus to palpation under the patella with movement. The patella did not appear to abnormally sublux with pressure from the medial or lateral side. Range of motion in the left knee was from -5 to 130 degrees, with pain in the last 30 degrees of flexion, and diminished to -5 to 120 degrees with repetition. There was no lateral instability. Crepitus was detected, but there was no definite catching or locking. This suggested some problem with the meniscus. The Veteran did appear to have increased discomfort and loss of motion with repetitions both actively and passively. There was some mild effusion. There was no redness or heat. The strength of the knee extensors and flexors appeared to be normal, with some complaints of pain and limitation of motion. X-rays and MRI studies indicated a mild to moderate degree of degenerative arthritis. According to a June 2010 VA compensation examination report, the Veteran did not use a cane or crutch. The examiner acknowledged having performed the previous compensation examination in August 2009. The Veteran reported that there had not been a significant change in his knees since then. The knees continued to receive supartz injections. There were small, well healed arthroscope scars of both knees. The left knee lacked full extension. Repetitive flexing produced no added limitation of motion. There appeared to be no loss of strength or instability. The diagnosis was mild to moderate bilateral degenerative knee arthritis with mild bilateral genu varus. A July 2011 VA general medical compensation examination report reflects that the Veteran reported that he could walk about 100 yards due to knee pains and that he fell occasionally because of his knees. The Veteran reported that his need for narcotic pain killers precluded his job in law enforcement (his job ended in March 2011), as he could not carry a gun while using those drugs. The Veteran reported increased knee pains since his June 2010 examination. He reported occasional swelling and weakness in both knees. He wore bilateral Velcro knee braces. The left knee exhibited well healed surgery scars, tenderness in the patellar area, and crepitus during movement. The joint was stable. Left knee flexion was to 100 degrees and painless. Extension lacked 5 degrees from full extension. Repetitive movement caused increased crepitus, but no increase in pain, weakness, or fatigability. During the November 2012 examination, the Veteran reported knee pains and weakness. The examiner noted minimal left knee effusion. Right knee flexion was painful at 80 to 90 degrees, but had full extension. There was no instability and no crepitance. The left knee flexed to 115 degrees, but lacked 5 degrees of full extension. There was no instability and no crepitance. X-rays showed bilateral knee joint degeneration. The Veteran reported, and the examiner agreed, that the knees were subject to fatigability and pain with prolonged activity. The diagnoses were mild bilateral patellofemoral chondromalacia; mild bilateral degenerative arthritis of the knees; and, no apparent meniscus tear of either knee. From the facts above, it appears that throughout the appeal period, the service-connected left knee disability has been manifested by painful limitation of motion in flexion and in extension and additional functional impairment due to increased pain on use. Left knee instability is not shown. While not all reports show all listed manifestations, the Board must reconcile the variances into a consistent picture that accurately represents all elements of the disability. 38 C.F.R. § 4.2. Under Diagnostic Code 5260, when considering painful motion and the DeLuca tenets, the criteria for a 10 percent schedular rating are more nearly approximated. However, because a 10 percent rating has already been assigned by the RO, the preponderance of the evidence is against a rating greater than 10 percent for left knee limited flexion during this rating period. Under Diagnostic Code 5261, when considering additional painful motion, 38 C.F.R. § 4.59, pain on use, and the DeLuca tenets, the criteria of a 10 percent schedular rating, for limited extension of the left knee to approximately 10 degrees are more nearly approximated. Thus, for the entire appeal period, the Board will grant a separate 10 percent schedular rating for left knee limited extension. The November 2012 VA examiner reviewed the medical history and reported that there is no history of dislocation of semilunar cartilage or removal of same. This medical opinion prohibits the Board from assigning a separate rating under Diagnostic Code 5258 or 5259, for either knee. ORDER For the period prior to December 5, 2003, a schedular rating greater than 10 percent for limited motion in flexion of the right knee is denied. For the period prior to December 5, 2003, a separate 10 percent schedular rating for limited motion in extension of the right knee is granted, subject to the laws and regulations governing payment of monetary benefits. For the period from February 1, 2004, through December 20, 2005, an increased, 20 percent, schedular rating for limited motion in flexion of the right knee is granted, subject to the laws and regulations governing payment of monetary benefits. For the period from February 1, 2004, through December 20, 2005, a separate 20 percent schedular rating for limited motion in extension of the right knee is granted, subject to the laws and regulations governing payment of monetary benefits. An extension of a temporary total rating for right knee surgery and convalescence from May 1, 2006, through July 31, 2006, is granted, subject to the laws and regulations governing payment of monetary benefits. For the period commencing August 1, 2006, the criteria for a schedular rating greater than 10 percent for limited motion in flexion of the right knee is denied. For the period commencing August 1, 2006, the criteria for a separate 10 percent schedular rating for limited motion in extension of the right knee is granted, subject to the laws and regulations governing payment of monetary benefits. For the entire appeal period, a schedular rating greater than 10 percent for limited motion in flexion of the left knee is denied. For the entire appeal period, the criteria for a separate 10 percent schedular rating for limited motion in extension of the left knee is granted, subject to the laws and regulations governing payment of monetary benefits. REMAND Two issues will be addressed in this Remand. They are entitlement to TDIU and entitlement to extra-schedular consideration. TDIU Although the Board denied a TDIU claim in October 2010 and the Veteran did not appeal that decision, he has appealed for higher ratings for his knees and he has alleged unemployability due to the knees. Thus, a new claim for TDIU exists. Rice v. Shinseki, 22 Vet. App. 447 (2009) (if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether TDIU is warranted). Moreover, in the decision above, the Board has granted additional service-connected ratings that are pertinent to entitlement to TDIU. TDIU may be assigned, where the schedular rating is less than total, when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2012). In this case, the TDIU claim has not been developed for Board review and is remanded in accordance with the Court's holding in Rice, supra. Extra-schedular Consideration The provisions of 38 C.F.R. § 3.321(b) provide that where the disability picture is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the Veteran for his service-connected disability, an extra-schedular evaluation will be assigned. Where the Veteran has alleged or asserted that the schedular rating is inadequate or where the evidence shows exceptional or unusual circumstances, the Board must specifically adjudicate the issue of whether an extra-schedular rating is appropriate, and if there is enough such evidence, the Board must direct that the matter be referred to the VA Central Office for consideration. Colayong v. West 12 Vet. App. 524, 536 (1999); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Court has stressed that consideration of whether a claimant is entitled to an extra-schedular rating is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (Fed. Cir.2009). The first step is to determine whether the "evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Id. If the adjudicator determines that this is so, the second step of the inquiry requires the adjudicator to "determine whether the claimant's exceptional disability picture exhibits other related factors," such as marked interference with employment or frequent periods of hospitalization. Id. at 116. Finally, if the first two steps of the inquiry have been satisfied, the third step requires the adjudicator to refer the claim to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether an extra-schedular rating is warranted. Id. Moreover, in Thun v Shinseki, 572 F.3d 1366 (Fed. Cir. 2009), the Federal Circuit interpreted and then affirmed the Court's three-part test to determine whether an extra-schedular rating is warranted. The Federal Circuit stressed that (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Id, at 1368. In this case, the schedular rating criteria have not been shown or alleged to inadequately describe the severity and symptoms of the bilateral knee disability; however, the case presents other indicia of an exceptional or unusual disability picture, such as marked interference with employment. The Veteran reported that his service-connected disabilities require pain medication, the use of which disqualifies him from carrying his weapon as a law enforcement officer. Given these facts, the Board agrees that an extra-schedular disability rating might be in the interest of justice. The Board must, therefore, remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b) (1). Accordingly, the case is REMANDED for the following action: 1. The AMC should develop the TDIU claim as necessary, including providing an examination to determine whether service-connected disabilities preclude securing or following a substantially gainful occupation. All indicated tests and studies should be conducted and all findings described. The examiner should elicit a history of relevant symptoms from the Veteran. The claims file must be made available to the examiner for review and the examination report should reflect that such review was accomplished. The examiner should address whether it is at least as likely as not (50 percent or greater probability), that the Veteran's service-connected disabilities preclude securing or following a substantially gainful occupation, considering his education and occupational experience but without consideration of her/his age. A rationale for any opinion should be given. At the time of this writing, the claims files reflect that service connection is in effect for the right shoulder, the lumbar spine, both knees, and both feet. Following development and re-adjudication of the TDIU claim, if the benefit is not granted, the AMC should submit it to the Director, Compensation and Pension Service, for extra-schedular consideration in accordance with 38 C.F.R. § 4.16(b) and/or § 3.321 (b). 2. Following the above, the AMC should review all the relevant evidence and re-adjudicate the claim. If the any benefit sought is not granted, an appropriate supplemental statement of the case (SSOC) should be issued. The Veteran and his representative should be afforded an opportunity to respond to the SSOC before the claims folders are returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). If an examination is scheduled, failure to report for a scheduled examination, without good cause, may result in adverse consequences on the claim for benefits. 38 C.F.R. § 3.655(b) (2012). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). ______________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs