Citation Nr: 1321285	
Decision Date: 07/02/13    Archive Date: 07/12/13

DOCKET NO.  07-19 220	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUES

1.  Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the left knee, chondromalacia, status post meniscectomy, rated based on limitation of motion.

2.  Entitlement to a disability rating in excess of 20 percent for residuals of injury to the left knee with chondromalacia, status post meniscectomy, rated based on instability, except during a period of temporary total disability from January 3, 2008 to March 31, 2008. 

3.  Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major mood disorder.

4.  Entitlement to a total disability rating based on individual unemployability.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J.A. Flynn, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Marine Corps from August 1972 to August 1975.

These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2005 and February 2006 rating decisions of the Detroit, Michigan and North Little Rock, Arkansas, Regional Offices (ROs) of the Department of Veterans Affairs (VA).  By a February 2005 rating action, the RO, in part, denied service connection for PTSD.  In a February 2006 rating action, the RO, in part, continued 20 percent and 10 percent disability ratings assigned to the service-connected chondromalacia of the left knee and degenerative joint disease of the left knee, respectively.  Jurisdiction of the appeal currently resides with the North Little Rock, Arkansas RO. 

These matters have previously been before the Board, most recently in June 2012, at which time the Board remanded the claims for additional development of the evidence of record.  As an initial matter, the Board notes that when its remand orders are not complied with, it errs as a matter of law when it fails to ensure compliance.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  As will be discussed in further detail below, with respect to the Veteran's claims for an increased rating for his left knee disability, the Board finds that there has been substantial compliance with the Board's remand instructions.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance.)

In addition to the issues listed above, in June 2012, the Board also remanded the issue of service connection for a left ankle disorder.  While on remand, a March 2013 rating decision of the VA Appeals Management Center (AMC) granted service connection for this disability.  The Board notes that when an appealed claim for service connection is granted during the pendency of the appeal, a second notice of Disagreement must then be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection.  In other words, the grant of service connection during the pendency of an appeal has extinguished the issue before the Board; service connection for a left ankle disorder is no longer in appellate status before the Board.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997).

The issues of entitlement to service connection for a psychiatric disorder and a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC, in Washington, D.C.  VA will notify the Veteran if additional action is required on his part.


FINDING OF FACT

Except during a period of temporary total disability from January 3, 2008 to March 31, 2008, the Veteran's left knee disability is manifested by a range of motion limited by pain and weakness to no worse than 90 degrees of flexion and 5 degrees of extension, x-ray evidence of arthritis, but no clinical evidence showing severe instability.



CONCLUSIONS OF LAW

1.  The criteria for an evaluation in excess of 10 percent for degenerative joint disease of the left knee associated with chondromalacia, status post meniscectomy, rated based on limitation of motion, have not been met.  See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261 (2012).

2.  The criteria for an evaluation in excess of 20 percent for residuals of injury to the left knee with chondromalacia, status post meniscectomy, rated based on instability, have not been met.  See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5257, 5258, 5259 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  While the Board must provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but it does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence of record.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed in this decision.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veterans Claims Assistance Act of 2000 (VCAA)

The Board has given consideration to the VCAA, which includes an enhanced duty on the part of VA to notify a veteran of the information and evidence necessary to substantiate claims for VA benefits.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012).  The VCAA also defines the obligations of VA with respect to its statutory duty to assist veterans in the development of their claims.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2011); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA 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.  This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  See id. at 486.  In the instant case, correspondence dated June 2006 provided the Veteran notice with respect to all of these elements.  The Board finds that all notice required by the VCAA and implementing regulations was furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. 

With respect to the duty to assist, VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits decided herein in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012).  The Veteran's service treatment records, VA medical treatment records, and records from the Social Security Administration have been obtained, to the extent available.  As will be discussed in further detail in the Remand portion of the decision below, the Board's July 2012 Remand directed the AMC to obtain a variety of VA treatment records.  The AMC successfully obtained such records, with the exception of records from the Las Vegas, Nevada VA Medical Center from 1975 to 1988.  Given that this decision addresses the appropriate rating for the Veteran's knee condition only from June 2005 (one year before his date of claim in June 2006) to the present, the Board finds that the absence of these treatment records is not prejudicial to the Veteran.

Additionally, the Veteran has been provided with VA examinations, and the Board observes that the VA examiners reviewed the Veteran's claim file and past medical history, recorded his current complaints and history, conducted appropriate evaluations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record.  The VA opinions are therefore adequate for the purpose of rendering a decision in the instant appeal.  See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  

The Veteran has not identified any additional records that should be obtained prior to a Board decision.  The Veteran testified at a videoconference hearing before the undersigned in April 2012, and a transcript of this hearing is of record.  The Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance is required to comply with the duty to assist.  Accordingly, the Board will proceed with a decision.


Increased Ratings for Knee Disabilities

Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity.  See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012).  Separate diagnostic codes identify the various disabilities.  See 38 C.F.R. Part 4 (2012).  When 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 required for that rating.  Otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7 (2012).  Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran.  See 38 C.F.R. § 4.3 (2012).

In general, when an increase in the disability rating is at issue, the present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim.  See Fenderson v. West, 12 Vet. App. 119 (1999).  However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified.  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."  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, diagnosis, and demonstrated symptomatology.  Any change in diagnostic code by a VA adjudicator must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).  

Separate disabilities arising from a single disease entity are to be rated separately.  See 38 C.F.R. § 4.25 (2012); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994).  Pyramiding, or, in other words, the evaluation of the same manifestation of a disability under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities.  See 38 C.F.R. § 4.14 (2012).

Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  See 38 C.F.R. § 4.40 (2012).  When making a rating determination, VA must consider whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing.  See 38 C.F.R. § 4.45 (2012); Johnson v. Brown, 9 Vet. App. 7, 10 (1996); DeLuca v. Brown, 8 Vet. App. 202 (1995).  

Traumatic arthritis is to be rated as degenerative arthritis.  See 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2012).  Degenerative arthritis established by x-ray findings is to be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012).  For the purpose of rating disabilities due to arthritis, the knee is considered a major joint.  See 38 C.F.R. § 4.45 (2012).  When limitation of motion of the specific joint or joints is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is to be applied for each such major joint or group of minor joints affected by limitation of motion.  See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012).  

Separate evaluations may be assigned for limitation of flexion and extension of the same joint.  See VAOPGCPREC 09-04 (September 17, 2004).  Specifically, when a Veteran has both a compensable level of limitation of flexion and a compensable level of 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.  Id.  The normal range of motion of the knee is 0 degrees of extension and 140 degrees of flexion.  See 38 C.F.R. § 4.71, Plate II (2012).

Limitation of flexion is rated as follows: flexion limited to 60 degrees warrants a noncompensable rating; flexion limited to 45 degrees warrants a 10 percent rating; flexion limited to 30 degrees warrants a 20 percent rating; and flexion limited to 15 degrees warrants a 30 percent rating.  See 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2012).  Limitation of extension is rated as follows: extension limited to 5 degrees warrants a noncompensable rating; extension limited to 10 degrees warrants a 10 percent rating; extension limited to 15 degrees warrants a 20 percent rating; extension limited to 20 degrees warrants a 30 percent rating; extension limited to 30 degrees warrants a 40 percent rating; and extension limited to 45 degrees warrants a 50 percent rating.  See 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2012).

VA's General Counsel has additionally concluded that arthritis and instability of a knee may be rated separately; in other words, evaluation of knee dysfunction based on both arthritis and instability does not amount to pyramiding under 38 C.F.R. § 4.14.  See VAOPGCPREC 23-97 (July 1, 1997) and VAOPGCPREC 09-98 (August 14, 1998).  Therefore, arthritis and instability of the knee may be rated separately, provided that any separate rating must be based upon additional disability.  See also Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997).

Increased Rating Based on Limitation of Motion of the Knee

Historically, the Veteran underwent a medial meniscectomy in 1973.  In September 2005, the Veteran complained of pain and swelling in the knee.  A VA examiner noted that the Veteran's daily activities were limited, and the Veteran could not engage in prolonged standing, prolonged sitting, running, or walking for more than two to three blocks at a time before having to rest.  The Veteran used a cane and crutches for ambulation.  The Veteran had flexion to 115 degrees and extension to 0 degrees.  There was no additional loss of motion due to pain, fatigue, or weakness upon repetitive motion testing.  The examiner diagnosed the Veteran with residuals of an injury to the left knee with chondromalacia, status post-operative meniscectomy.  	

In April 2007, the Veteran complained of chronic knee pain for the past five years.  The Veteran complained of flare-ups when engaging in weight-bearing activities.  The Veteran experienced weakness without additional restriction of his range of motion during flare-ups.  The Veteran had functional limitations on his ability to stand and walk.  The Veteran used a cane for ambulation and wore knee braces.  The Veteran indicated that he had experienced incapacitating episodes of pain twice in the past year, but the left knee had no redness, swelling, or heat.  The Veteran complained of tenderness along the medial joint line.  The Veteran had flexion to 110 degrees and extension to 0 degrees, both with pain.  There was no additional weakness, fatigability, incoordination, additional restricted range of motion, or functional impairment following repetitive stress testing.  The patella tracked normally with moderate crepitus and laxity.  An April 2007 MRI examination revealed intact ligaments throughout the knee with some degenerative abnormalities in the meniscus.  The diagnostic impression was chondromalacia patella syndrome with degenerative joint disease.

In January 2008, the Veteran underwent an arthroscopic procedure on his left knee. The Veteran was awarded a temporary total evaluation from January 3, 2008 to March 31, 2008.

In March 2008, a VA examiner indicated that the January 2008 arthroscopic procedure revealed an essentially normal left knee.  The Veteran wore a brace on his knee and walked with a walker.  The Veteran could fully extend his left knee, and he could flex his knee to 90 degrees with pain.  In October 2008, a VA clinician noted that the Veteran had active flexion to 120 degrees, and active extension to 5 degrees.  A June 2009 VA physical therapy consultation noted that the Veteran's range of motion was "within functional limits."  A September 2009 VA physical therapy consultation record noted the Veteran's complaints of knee pain.  The Veteran's range of motion was again "within functional limits."  

At an October 2010 VA examination, the Veteran complained of continuing discomfort in his knee.  The examiner noted that eight months before the examination, the Veteran suffered a left-sided cerebral vascular accident that caused increased weakening, incoordination, pain, and loss of functional use of his left lower extremity.  The Veteran limped markedly with an obvious left-sided stroke.  The knee was painful with motion, and the Veteran had incoordination.  No ankylosis, swelling, heat, or tenderness was noted.  The Veteran had a range of motion from 0 degrees of extension to 115 degrees of flexion.  X-ray examination showed severe degenerative disease of the medial compartment and patellofemoral degenerative disease.  While the examiner noted that the Veteran had weakened movement, excess fatigability, and incoordination, the examiner was unable to determine which of these symptoms were attributable to his stroke.  The examiner indicated that the Veteran's knee condition limited his functional abilities daily, and he indicated that the Veteran experienced flare-ups daily.  The Veteran could "barely" walk down the hall, and he had difficulty getting into and out of a chair.  

In December 2011, a VA clinician noted that the Veteran had "painful and tight" terminal flexion and full knee extension.  The Veteran reported that he could no longer engage in bowling, he had difficulty with stairs, and had difficulty rising from a deep knee-bent position.  

In September 2012, a VA examiner diagnosed the Veteran with degenerative joint disease with chondromalacia and a meniscectomy.   The examiner noted that the Veteran required a total left knee replacement, but he needed to wait until he was 60 for such a procedure.  The Veteran complained that during flare-ups his knee swelled so much that he could not use his brace.  Upon range of motion testing, the Veteran had flexion to 95 degrees and extension to 0 degrees; the Veteran's range of motion was limited by pain.  The Veteran had no additional limitation in his range of motion following repetitive-use testing.  In terms of functional impairment, the Veteran had less movement than normal, weakened movement, excess fatigability, painful movement, swelling, disturbance of locomotion, and interference with sitting, standing, and weight-bearing.  The Veteran had 4/5 muscle strength.  The Veteran had undergone a meniscectomy to repair a meniscal tear, and he had residual pain and swelling as a result of this procedure.  The Veteran used a brace and cane regularly, and he occasionally used a walker for ambulation.  MRI examination showed a complete medial meniscectomy with degenerative changes.

Turning to an evaluation of this evidence of record, the Board has considered the applicability of each of the Diagnostic Codes applicable to the knees.  There is no evidence of ankylosis, impairment of the tibia and fibula, or genu recurvatum.  Thus, Diagnostic Codes 5256, 5262, and 5263 do not apply.  See 38 C.F.R. § 4.71a (2012).  With these diagnostic codes excluded, the issue is whether the Veteran is entitled to a greater level of compensation under the diagnostic codes that are potentially applicable to the Veteran's left knee disability: 5003 (applicable to degenerative arthritis), 5260 (applicable to limitation of flexion of the leg), or 5261 (applicable to limitation of extension of the leg).

The Board will first evaluate whether a greater rating is available to the Veteran under the Diagnostic Codes based on limitation of motion of the leg: 5260 and 5261.  With regard to flexion, the Veteran consistently demonstrated flexion to 90 degrees or greater.  Accordingly, with flexion never limited to 60 degrees or fewer, a compensable evaluation is unavailable to the Veteran on the basis of impairment of flexion.  See 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2012).  With regard to extension, the Veteran consistently demonstrated extension to 5 degrees or fewer.  Accordingly, with extension never limited to 10 degrees or greater, a compensable evaluation is unavailable to the Veteran on the basis of impairment of extension.  See 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2012).

The Board must additionally consider functional loss due to pain and weakness that causes additional disability beyond that which is reflected on range of motion measurements.  See 38 C.F.R. § 4.40 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995).  The Board must consider the effects of weakened movement, excess fatigability and incoordination.  See 38 C.F.R. § 4.45 (2012).  VA examiners and clinicians have noted the Veteran's complaints such as pain and weakness, and the Board has taken these complaints into consideration in its above discussion.  The Board finds that the evidence does not support a finding that the Veteran's functional loss causes disability beyond the above-discussed range of motion testing.  While the Board accepts the credible contentions of the Veteran that his left knee disability causes him to experience significant pain, the Board has taken this into account in its above discussion of the range of motion of the Veteran's knee.  The rating schedule does not require a separate rating for pain itself.  See Spurgeon v. Brown, 10 Vet. App. 194 (1997).  Accordingly, a greater evaluation is not warranted based on functional loss.

With regard to a higher rating based on arthritis, when x-ray evidence of degenerative arthritis is presented but the associated loss of range of motion is noncompensable, a 10 percent disability rating is warranted under Diagnostic Code 5003.  See 38 C.F.R. § 4.71a, Diagnostic Code 5010, 5003 (2012).  The evidence of record indeed indicates that the Veteran is in receipt of a 10 percent evaluation of his knee disability throughout the period on appeal based on traumatic arthritis, which is rated as degenerative arthritis.  The Diagnostic Code applicable to degenerative arthritis does not provide for an evaluation in excess of 10 percent with the involvement of a single major joint.  A greater increased rating based on arthritis is accordingly unavailable to the Veteran.

Increased Rating Based on Knee Instability

As noted above, a separate evaluation may be provided for knee instability.  The Veteran is in receipt of a 20 percent rating under Diagnostic Code 5259-5258.  Hyphenated diagnostic codes are used when a rating under one code requires use of an additional code to identify the basis for the evaluation assigned.  See 38 C.F.R. § 4.27 (2012).  Diagnostic Code 5259 applies to symptomatic removal of the semilunar cartilage and provides a 10 percent evaluation.  See 38 C.F.R. §§ 4.71a (2012).  Diagnostic Code 5258 applies to a dislocation of the semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint, and a single 20 percent disability evaluation applies to this Diagnostic Code.  As a rating in excess of 20 percent is not available under either of these Diagnostic Codes, an increased rating may not be assigned thereunder

Alternatively, knee instability may be evaluated under Diagnostic Code 5257, which provides that recurrent subluxation or lateral instability is rated at 10 percent when slight, 20 percent when moderate, and 30 percent when severe.  See 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2012).  The words "slight," "moderate," and "severe" are not defined in the VA Schedule for Rating Disabilities.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence in order to ensure that its decisions are equitable and just.  See 38 C.F.R. § 4.6 (2012).  Clinicians' use of terms such as "moderate" and "severe," although an element that the Board will consider, is not dispositive of the issue.  

Turning to the facts in the instant case, in August 2005, the Veteran had good stability in the collateral, anterior cruciate, and posterior cruciate ligaments.  In September 2005, a VA examiner noted the Veteran's complaint that his knee tended to "go out of the joint" medially, and the examiner observed mild medial laxity of the knee.  In April 2007, the Veteran complained of recurrent locking in the knee.  The knee had no evidence of ligament laxity at stress testing in all directions.

In March 2008, an examiner found no lateral or medial instability of the knee.  In September 2008, a physician noted no crepitus, no instability to varus or valgus stress, and the Veteran had a negative Lachman's test and drawer test.  In October 2010, the Veteran complained of his knee locking, popping, and going out, and he wore a brace all the time.  The examiner noted that the Veteran's knee was stable, and McMurray's test and Lachman's test were negative.  The examiner noted that the Veteran had no subluxation.  In December 2011, a VA clinician noted that the Veteran had no knee instability to valgus and varus forces.  The Veteran reported near-falling and falling events as a result of his knee going out.  In September 2012, the Veteran complained that his left knee "jumps out," and he indicated that he fell two weeks prior to the examination.  Joint stability testing was normal, and there was no history of recurrent patellar subluxation or dislocation.  

Applying the law to the facts in the instant case, the Board finds that this evidence does not support the award of a rating in excess of 20 percent for knee instability.  As noted above, an evaluation in excess of 20 percent for knee instability would require a finding that the Veteran suffers from "severe" recurrent subluxation or lateral instability.  The evidence does not support such a finding.  A September 2005 examiner observed mild medial laxity of the knee.  Clinicians have otherwise found the Veteran's knee to be stable.  The Board acknowledges the Veteran's contention regarding the severity of his condition.  Given the lack of clinical findings of severe instability, however, the Board places greater probative weight on the medical evidence of record than on the Veteran's subjective accounts of instability.  Accordingly, the Board finds that a rating in excess of 20 percent based on instability is not warranted at any time during the period under consideration.  

Extraschedular Considerations

The Board has also considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis.  Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  

With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture due to left knee disability that the available schedular evaluation for a knee disability, with consideration of functional loss under 38 C.F.R. § 4.45, is inadequate.  In this regard, a comparison between the level of severity and symptomatology of the Veteran's left knee functional loss with the established criteria found in the rating schedule and regulation governing functional loss shows that the criteria reasonably describe the Veteran's disability level and symptomatology.  As the first prong of Thun has not been satisfied, the Board therefore has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted.   


ORDER

A disability rating in excess of 10 percent for degenerative joint disease of the left knee associated with residuals of injury to the left knee with chondromalacia, status post meniscectomy, rated based on limitation of motion, is denied.

A disability rating in excess of 20 percent for residuals of injury to the left knee with chondromalacia, status post meniscectomy, rated based on instability, except during a period of temporary total disability from January 3, 2008 to March 31, 2008, is denied. 



REMAND

Unfortunately, an additional remand of the Veteran's claims for service connection for an acquired psychiatric disorder and a TDIU is warranted.  Although the Board regrets the additional delay, further development of the record is required before the Board may render a decision in the instant case.  

As the Board noted in its June 2012 Remand, the Veteran testified before the undersigned that he had received treatment at the VA Medical Center (VAMC) in Las Vegas, Nevada between 1975 and 1988.  While this case was remanded, the AMC took appropriate steps to locate such records, and in March 2013, the AMC issued a formal finding as to the unavailability of these records.  This formal finding indicated that the AMC had searched the VA Southern Nevada Healthcare System for pertinent records.  In February 2013, however, the Veteran clarified the locations where he received treatment, and he stated that his treatment at VA Hospitals on Water Street in Henderson, Nevada and on West Charleston Boulevard in Las Vegas preceded the creation of the VA Southern Nevada Healthcare System.  While this case is again remanded, the AMC should review the Veteran's March 2013 correspondence and perform searches for pertinent medical records from these facilities.

With regard to the Veteran's claim for service connection for an acquired psychiatric disorder, once VA provides an examination for a claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided.  See Daves v. Nicholson, 21 Vet. App. 46 (2007); cf. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  The Court has held that "a medical opinion . . . must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."  Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  The Court has also indicated that in evaluating the medical opinion evidence, the Board is to consider whether (1) the testimony is based upon sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the expert witness has applied the principles and methods reliably to the facts of the case.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

Pursuant to the Board's June 2012 Remand, the Veteran received a VA examination in September 2012 addressing the nature and etiology of his acquired psychiatric disorders.  While the examiner found that the evidence did not support a diagnosis of PTSD, the examiner diagnosed the Veteran with depressive disorder not otherwise specified.  The examiner then opined that the Veteran's depressive disorder was not related to his military service because his service treatment records were silent for any treatment relating to depressive symptoms.  The examiner provided no further rationale.  The Board observes that the lack of treatment in service for a psychiatric condition is not itself a sufficient basis for the examiner's conclusion.  Accordingly, a supplemental opinion should be solicited that provides a rationale for this conclusion. 

To establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation.  See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012).  In reaching that determination, the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability.  See Hatlestad v. Brown, 5 Vet. App. 524 (1993).  Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to age or to the impairment caused by nonservice-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2008); Van Hoose v. Brown, 4 Vet. App. 361 (1993).

A TDIU may be assigned when the schedular rating is less than total if it is found that the disabled person is unable to secure or follow substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  See 38 C.F.R. §§ 3.340, 4.16(a) (2012).  Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012); Van Hoose v. Brown, 4 Vet. App. 361 (1993).

When the percentage requirements for consideration for an award of a TDIU are not met, entitlement to benefits on an extra-schedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability, and consideration is given to the veteran's background, including his or her employment and educational history.  38 C.F.R. § 4.16(b) (2012).  The Board does not have the authority to assign a TDIU pursuant to 38 C.F.R. § 4.16(b) in the first instance.  Bowling v. Principi, 15 Vet. App. 1 (2001).  In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but may not be given to his or her age or to any impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19 (2012).

The Veteran is in receipt of a 50 percent combined rating based on multiple service-connected disabilities.  The Veteran therefore does not meet the percentage requirements for consideration for award of TDIU.  Failure to satisfy those percentage standards is not, however, an absolute bar to a grant of a TDIU.  If the record demonstrates that the Veteran is unemployable by reason of service-connected disabilities but otherwise fails to meet the percentage standards, the case must be submitted to the Director of the VA Compensation and Pension Service for extraschedular consideration.  38 C.F.R. § 4.16(b) (2012).

Throughout the current appeal, the Veteran has contended that his service-connected disabilities have resulted in his unemployability.  In October 2010, a VA examination indicated that the Veteran was unable to sustain gainful employment as a result of the Veteran's service-connected left knee condition with the addition of his non-service-connected stroke.  In September 2012, a VA examiner indicated that the Veteran had to quit his job as a truck driver in 1999 because he could no longer drive as a result of knee pain.  In an undated opinion rendered after the Board's June 2012 Remand, a physician opined that the Veteran's "full time gainful employment prospects are essentially nil" as a result of his service-connected disabilities. 

Upon review of this evidence, the Board finds that a referral of the claim to the Director of the VA Compensation and Pension Service for consideration is warranted.  The authority to assign TDIU ratings pursuant to 38 C.F.R. § 4.16(b) has been specifically delegated to the Under Secretary for Benefits and the Director of the Compensation and Pension Service in the first instance.  38 C.F.R. § 4.16(b) (2012).

Accordingly, the case is REMANDED for the following actions:

1.  Attempt to obtain treatment records pertaining to the Veteran from the VA Hospitals on Water Street in Henderson, Nevada and on West Charleston Boulevard in Las Vegas for the period from 1975 to 1988.  If such records are unavailable, indicate the steps that were taken to obtain these records and provide the Veteran and his representative an opportunity to provide them.

2.  Then, forward the Veteran's claims file to the examiner who conducted the September 2012 VA examination.  If the September 2012 examiner is no longer available, a new examination should be conducted.  The September 2012 VA examiner may also request re-examination of the Veteran.  The examiner should once again be requested to provide answers to the following question:

Is it at least as likely as not (that is, a 50 percent probability or greater) that the Veteran's depressive disorder had an onset in service or is otherwise related to service?  

The examiner must provide a rationale for this opinion.  By "rationale," the Board means a full explanation of the reasons and logical principles underlying the opinion.  The examiner is reminded that the absence of treatment for a psychiatric disorder in service is not alone a sufficient rationale for the examiner's opinion.  If, for example, the examiner determines that it is unlikely that a given disability is related to service, the examiner's rationale must explain the reasons why this is so, citing to the relevant medical and lay evidence of record.  In other words, if the Veteran's disabilities are more likely attributable to a cause other than active duty military service, please explain the reasons why this is so.

3.  Then, refer the claim for TDIU under 38 C.F.R. § 4.16(b) to the appropriate department official(s) for a written decision that explains the reasons and bases for the conclusion reached. 

4.  Then, review the claims folder to ensure that the foregoing requested development has been completed.  In particular, review the examination report to ensure that it is responsive to and in compliance with the directives of this remand, and if not, implement corrective procedures.  See Stegall v. West, 11 Vet. App. 268 (1998).

5.  Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claims.  If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond.  Thereafter, the case should be returned to the Board.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012).



______________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs