Citation Nr: 1322213 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 07-23 856 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for degenerative joint disease of the right ankle. 2. Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the right hip. 3. Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the right knee. 4. Entitlement to a disability rating in excess of 10 percent for plantar fasciitis of the right foot. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from March 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in January 2007 and January 2010, by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The January 2007 rating decision, in part, granted service connection for degenerative joint disease of the right hip and assigned a 10 percent rating, granted service connection for degenerative joint disease of the right knee and assigned a 10 percent rating; granted service connection for degenerative joint disease of the right ankle and assigned a 10 percent rating, granted service connection for plantar fasciitis of the right foot and assigned a 10 percent rating. In October 2009 the Veteran filed claims for entitlement to increased ratings for his degenerative joint disease of the right ankle, degenerative joint disease of the right hip, degenerative joint disease of the right knee, and his plantar fasciitis of the right foot. The January 2010 rating decision on appeal increased the rating for degenerative joint disease of the right ankle to 20 percent, effective the date of the claim for an increased rating. The remaining increased rating claims were denied. In March 2011 the Veteran testified before the undersigned Acting Veterans Law Judge at a Travel Board hearing. A transcript of that hearing is of record. In June 2011, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. In the February 2013 presentation for purposes of this appeal, the Veteran's representative argues that the Veteran's increasing severity of his service-connected disabilities is causing increased functional loss and decreased ability to work and perform activities of daily living. This argument, together with evidence the Veteran's right leg disabilities may impact his ability to work, raises an inferred claim for TDIU, although the Veteran has not specifically claimed inability to work results from his service-connected disabilities. See August 2007, June 2009, March 2010 and April 2011 statements from the Veteran's employer. In light of the fact that the Veteran is service-connected for multiple disabilities, and continues to seek higher evaluations for right ankle, right hip, right knee and right foot disability, the issue of entitlement to a total disability rating based on individual unemployability (TDIU) is addressed in the Remand, below. When TDIU based on a disability is raised in connection with an increased rating claim for that disability, the Board has jurisdiction over the issue of TDIU because it is part of the claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009). The issue of entitlement to an increased rating for degenerative joint disease of the right knee is also addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's right ankle degenerative joint disease has been manifested throughout the appeal period by varying limitation of motion and complaints of pain, but there is no ankylosis or deformity of the ankle and no abnormality of the right ankle on radiologic examination. 2. The Veteran's right hip degenerative joint disease has been manifested throughout the appeal period by pain and limitation of motion, but right hip disability does not result in flexion limited to 30 degrees or the functional equivalent thereof, motion lost beyond 10 degrees on abduction, or ankylosis of the right hip. 3. The Veteran's plantar fasciitis of the right foot has been manifested throughout the appeal period by symptoms that most nearly approximate a moderate foot disability. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for degenerative joint disease of the right ankle have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5271 (2012). 2. The criteria for a disability rating in excess of 10 percent for degenerative joint disease of the right hip have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5250-5255 (2012). 3. The criteria for a disability rating in excess of 10 percent for plantar fasciitis of the right foot have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) defined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, 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. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court has held that at a minimum, adequate VCAA notice in an increased rating claim required that VA notify the claimant that, to substantiate such a claim: (1) the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008). The Federal Circuit has overturned the requirement that VA provide notice that the claim could be substantiated by evidence of a disability's impact on daily life and that VA provide notice with regard to potential diagnostic code criteria (element 2). Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The record reflects that in September 2006 and October 2009, the Veteran was provided with the required notice under § 5103. The Board notes that the letters expressly notified the Veteran that he had one year to submit the requested information and/or evidence, in compliance with 38 U.S.C.A. § 5103(b) (evidence must be received by the Secretary within one year from the date notice is sent). Also, the Veteran was given the specific notice required by Dingess v. Nicholson, 19 Vet. App. 473 (2006) in the September 2006 and October 2009 letters. A May 2008 letter provided the information required by Vazquez-Flores. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim, as was done here. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). The Duty to Assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103S; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records and VA treatment records. Additionally, the Veteran was provided VA examinations in November 2009 and August 2011 for his right ankle, right hip, and right foot disabilities. In the February 2013 Post-Remand Brief, the Veteran's representative reported that the Veteran's right ankle pain had increased significantly and that the disability was having a negative effect on his ability to perform usual necessary daily activities. As such, he argued that although the Veteran was in receipt of the highest schedular rating available (20 percent) for his right ankle disability, his disability warranted an extra-schedular evaluation. The decision below addresses that contention. As discussed further below, there was no abnormality of the right ankle joint at the time of radiologic examination in 2011. Review of electronic records dated through February 2012 (Virtual VA) discloses no indication that the Veteran sought treatment for the right ankle specifically, although he began using a right ankle brace, reporting increased back pain and muscle stiffness. Accordingly, a remand for another VA examination of the right ankle is not warranted in this case. The Board address below the representative's contention that the Veteran is entitled to an extra-schedular evaluation for the right ankle based on complaints of increased pain and functional impairment, and no further development is required to address this contention. The representative also contends that recent treatment records reflected a worsening of the Veteran's right hip disability. The Board has reviewed the updated VA treatment records located in Virtual VA. There is no objective evidence of record which shows that the Veteran's right hip disability has increased in severity since his last VA examination in August 2011; rather, the Veteran has reported increased back pain and numbness of the right leg. However, the Board finds that this evidence does not warrant another VA examination for right hip disability. With regard to the right foot, the representative reported that the Veteran asserts that his right foot was more painful and tender and that his ability to function continued to deteriorate. The Board notes that the Veteran's complaints of pain and tenderness in the foot have already been considered the currently assigned 10 percent evaluation. The Veteran has not reported any symptomatology that would rise to the level of a moderately severe or severe foot disability to warrant a higher rating under the applicable rating criteria. In this regard, the evidence consistently shows that, despite the Veteran's complaints of pain, no abnormality or deformity is present and no diagnosis other than plantar fasciitis has been assigned. The Veteran's generalized complaints of increased functional impairment do not require remand for another VA examination for the Veteran's service-connected right foot disability. Neither the Veteran nor his representative has identified any additional evidence that could be obtained to substantiate the claims, and the Board is also unaware of any such evidence. The Board remanded the claims in June 2011, so that any outstanding VA treatment records could be obtained and associated with the claims files, and to obtain additional VA examinations. The additional VA treatment records are available in Virtual VA, and the VA examinations were conducted in August 2011, and contained the requested information, necessary to adequately rate the Veteran's right ankle, right hip and right foot disabilities. The remand instructions were thereby complied with. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran has, as noted above, testified regarding his claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that a hearing officer has duties to explain fully the issues still outstanding that are relevant and material to substantiating the claim by explicitly identifying them for the claimant, to suggest that a claimant submit evidence on an issue material to substantiating the claim when such evidence is missing from the record or when the testimony at the hearing raises an issue for which there is no evidence in the record. 23 Vet. App. at 496-97. In this case, the hearing officer discussed the missing evidence and evidence the Veteran might provide. The Veteran's lengthy testimony (the Board notes that the hearing transcript is more than 50 pages in length) establishes that he understood what evidence was missing and testified regarding all relevant facts. If any hearing officer duty was not met at the hearing before the Board, such defect has been cured by the lengthy course of the development and readjudication since the hearing was conducted. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. General Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). Each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2012). Traumatic arthritis is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5010. Pursuant to DC 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, the disability is to be rated as follows: with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, 20 percent; with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, 10 percent. 38 C.F.R. § 4.71a. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2012). However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40 and 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, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997); 38 C.F.R. § 4.59 (2012). The Veteran's entire history is to be considered when making a disability determination. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). This includes consideration of the evidence pertaining to the level of disability from the time period one year before the claim was filed. 38 U.S.C. § 5110. In addition, the Court has determined that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). Right Ankle A 10 percent rating is warranted for moderate limitation of motion of an ankle and a 20 percent rating is warranted for marked limitation of motion of an ankle. 38 C.F.R. § 4.71a, DC 5271. Ankylosis of an ankle warrants a 20 percent evaluation if it is in plantar flexion, at less than 30 degrees. A 30 percent evaluation is warranted if the ankylosis is in plantar flexion, between 30 and 40 degrees, or in dorsiflexion, between 0 and 10 degrees. 38 C.F.R. § 4.71a, DC 5270. Normal ranges of ankle motions are 0 to 20 degrees for dorsiflexion and 0 to 45 degrees for plantar flexion. 38 C.F.R. § 4.71, Plate II (2012). In determining the degree of limitation of motion, the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the Veteran's ordinary activity are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran's right ankle disability is currently evaluated as 20 percent disabling under DC 5271 on the basis of marked limitation of motion of the ankle. 38 C.F.R. § 4.71a, DC 5271. This is the highest evaluation available under DC 5271. The rating schedule does not provide for a higher rating for an ankle disability under DC 5271 absent a showing of ankylosis. Therefore, the Board has considered whether the Veteran is entitled to a separate, compensable rating under another DC or whether assignment of a DC other than DC 5271 is appropriate. On examinations since the grant of service connection, the Veteran has exhibited pain on motion in the right ankle. There is no evidence of ankylosis; rather, the Veteran retains motion of the ankle. Therefore, a higher disability rating under DC 5270 is not warranted. See November 2009 and August 2011 VA examination reports. Furthermore, although the Veteran is claiming functional impairment, in that the disability affects his ability to perform daily activities, the Board is not required to assign a rating in excess of the maximum schedular evaluation based on complaints of pain. The Board has considered application of the provisions of 38 C.F.R. § 4.59, with regard to arthritis, and 38 C.F.R. §§ 4.40 4.45, with regard to pain. However, the examination conducted in August 2011, following the Board's June 2011 Remand, disclosed no abnormality on radiologic examination of the right ankle. Thus, 38 C.F.R. § 4.59 is not applicable to warrant a higher rating. The examiner noted that the Veteran reported right ankle pain and weakness, but the examination was essentially normal. Absent abnormality on radiologic examination, no other diagnostic code is applicable to warrant a separate, compensable evaluation or a higher rating for the right ankle based on pain. See also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). The Veteran's representative contends, in a February 2013 Informal Hearing Presentation, that the Veteran's right ankle disability is "deteriorating." The Board notes that July 2011 VA outpatient treatment records disclose that the Veteran was using a right ankle brace. The Veteran reported that he had stiffness and discomfort of the right leg and ankle. He reported that he had fallen when he stood up after his right leg "got numb." The Veteran's gait favored the right side. While these findings show that the Veteran reported symptoms of service-connected disability, the symptoms were not related to a change in the right ankle, but rather, increased complaints of back pain and leg numbness. These reports do not establish that the Veteran is entitled to an increased evaluation for right ankle disability. Rather, the preponderance of the evidence is unfavorable to an increased evaluation on any basis for right ankle disability, since the evidence makes it clear that the Veteran's complaints were related to back disability and right leg numbness and were not attributable to the right ankle. Use of a right ankle foot support, which was issued in 2010, does not demonstrate a change in right ankle function or symptoms. The Veteran's complaint that he fell due to numbness of the right leg does not demonstrate a change in right ankle function or symptoms. Similarly, the fact that the provider noted that the Veteran's gait favored the right leg does not demonstrate a change in right ankle function or symptoms. No criterion for an increased evaluation for right ankle disability is met. Right Hip Normal ranges of motion of the hip are from hip flexion from 0 degrees to 125 degrees, and hip abduction from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. DC 5250 provides for rating the hip on the basis of ankylosis. Favorable ankylosis of the hip in flexion at an angle between 20 degrees and 40 degrees and slight adduction or abduction is 60 percent disabling. Intermediate ankylosis of the hip is 70 percent disabling. Extremely unfavorable ankylosis, with the foot not reaching ground, crutches necessitated, is to be rated 90 percent disabling, and entitles the claimant to special monthly compensation. 38 C.F.R. § 4.71a. DC 5251 provides a 10 percent disability rating for limitation of extension of the thigh that is limited to 5 degrees. DC 5252 provides ratings based on limitation of flexion of the thigh. A 10 percent disability rating is for flexion of the thigh that is limited to 45 degrees. A 20 percent rating is for flexion of the thigh that is limited to 30 degrees. A 30 percent rating is for flexion of the thigh that is limited to 20 degrees. A 40 percent rating is for flexion of the thigh that is limited to 10 degrees. Under DC 5253, limitation of adduction and an inability to cross legs, or limitation of rotation with an inability to toe-out the affected leg more than 15 degrees warrants a 10 percent rating. Limitation of abduction of a thigh with motion lost beyond 10 degrees warrants a 20 percent rating. DC 5254 provides for a singular maximum evaluation of 80 percent for flail joint of the hip. DC 5255 deals with impairment of the femur. Under this code, malunion of the femur with slight knee or hip disability warrants a 10 percent evaluation. Malunion of the femur with moderate knee or hip disability warrants a 20 percent evaluation. Malunion of the femur with marked knee or hip disability warrants a 30 percent evaluation. Fracture of surgical neck of femur, with false joint, or fracture of shaft or anatomical neck of femur with nonunion, without loose motion, weight bearing preserved with aid of brace, warrants a 60 percent evaluation. The highest rating available under that code, 80 percent, is warranted for fracture of shaft or anatomical neck of femur, with nonunion, with loose motion (spiral or oblique fracture). Under DC 5054, prosthetic replacement of the head of the femur or of the acetabulum warrants a 100 percent rating for 1 year following implantation of the prosthesis. Thereafter, a 50 percent rating requires moderately severe residuals of weakness, pain, or limitation of motion. A 70 percent rating requires markedly severe residual weakness, pain, or limitation of motion following implantation of the prosthesis. A 90 percent rating is warranted following implantation of the prosthesis with painful motion or weakness such as to require the use of crutches. See 38 C.F.R. § 4.71a, DC 5054. The minimum rating under DC 5054 is 30 percent. Id. As noted above, in a January 2007 rating decision, the RO granted service connection for degenerative joint disease of the right hip, with a 10 percent evaluation, effective August 29, 2006. In October 2009, the Veteran filed a claim for an increased rating. The Veteran was afforded a VA examination in November 2009, in response to his claim for an increased rating. The Veteran complained of stiffness, heat, lack of endurance, fatigability, tenderness, and pain. He also complained of flare-ups as often as 3 times per day, for 2 hours at a time, which caused functional impairment of pain and limitation of motion of the joint, described as an inability to bend over without pain. He also complained of difficulty with standing/walking, and tingling, numbness and burning in the legs, with lower right back pain. He denied weakness, swelling, redness, giving way, locking, deformity, drainage, effusion, subluxation, and dislocation. He also denied any incapacitation in the previous 12 months. He reported that he was not receiving any treatment for his condition, and denied ever being hospitalized or having any surgery for his condition or any joint replacement. On physical examination, the Veteran's posture was normal, but the Veteran walked with a limp to avoid putting weight on his right side. The examiner noted that his walk was abnormal and could be described as imbalance. Examination of the feet did not reveal any signs of abnormal weight bearing or breakdown, callosities, or any unusual shoe wear pattern. He did not require any assistive device for ambulation. There was tenderness in the right hip, but no signs of edema, instability, abnormal movement, effusion, weakness, redness, heat, deformity, guarding of movement, malalignment, drainage, or subluxation. There was no ankylosis on examination. Range of motion of the right hip was to 85 degrees of flexion, 30 degrees extension, 10 degrees adduction, 20 degrees abduction, 40 degrees external rotation, and 20 degrees internal rotation. Joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use, and there was no additional limitation of function after repetitive motion. His diagnosis of degenerative joint disease of the right hip was continued. During his most recent VA examination in August 2011, he claimed that he was not able to bend, but reported taking pain medication, which helped. He denied any surgery on the hip, and reported that he was not using any walking aids. He also denied any flare-ups of hip pain. On physical examination, there was no localized tenderness or pain to palpation of the right hip joint; muscle strength during flexion, extension and abduction was normal; and there was no ankylosis of the hip joint. There was no malunion or nonunion of the femur, flail hip joint, or leg length discrepancy. The examiner also noted that the Veteran was wearing a back brace and an ankle foot support, but he was ambulatory and walked in without any walking aids. Posture was normal, and he walked with a wide gait favoring the right leg. On examination of the right hip, there was no abnormality noticed, no pelvic tilt, and no tenderness. He was able to stand and walk a few steps on his heels and toes, and he was able to squat. Range of motion of the right hip was 105 degrees of flexion, with pain at 105 degrees; and extension ended at 5 degrees, with no objective evidence of painful motion. Abduction was not lost beyond 10 degrees, adduction was not limited such that the Veteran could not cross his legs, and rotation was not limited such that the Veteran was not able to toe-out more than 15 degrees. There was no additional limitation in range of motion, and no functional loss or functional impairment after repetitive-use testing. The examiner also noted that the Veteran's right hip condition did not impact his ability to work. The Veteran's right hip disability is currently evaluated as 10 percent disabling under DC 5252, based on limitation of flexion of the thigh. As there is no evidence of flexion limited to at least 20 degrees, a rating in excess of 10 percent is not warranted under this diagnostic code. In this regard, the Veteran was able to flex on examination in November 2009 to 85 degrees, and on examination in August 2011 to 105 degrees, even with consideration of pain. As there is no evidence of ankylosis at any time during the appeal period, a higher rating under DC 5250 is also not warranted. As the August 2011 examiner also noted that there was no evidence of limitation of abduction of a thigh with motion lost beyond 10 degrees, a rating in excess of 10 percent under DC 5253 is also not warranted. There is also no evidence of flail joint of the hip or impairment of the femur, or prosthetic replacement of the head of the femur or of the acetabulum, and as such, the Veteran's right hip disability also does not warrant a rating in excess of 10 percent under DC 5254, 5255 or 5054. With regard to the DeLuca factors, the Board notes that the Veteran has complained of flare-ups as often as 3 times per day, lasting for 2 hours at a time, which caused functional impairment of pain and limitation of motion of the joint, described as an inability to bend over without pain. He also complained of difficulty with standing/walking, and tingling, numbness and burning in the legs, with lower right back pain. See November 2009 and August 2011 VA examination reports. However, the Board also notes that during the period on appeal, the Veteran has not had more than slight limitation of motion of the hip and thigh joints. See id. Furthermore, on VA examination in November 2009, the Veteran denied any incapacitation in the previous 12 months. He reported that he was not receiving any treatment for his hip condition, and denied ever being hospitalized or having any surgery for his condition or any joint replacement. On examination in August 2011, he reported taking medication, which helped his hip pain, denied any surgery on the hip, and reported that he was not using any walking aids. He also denied any flare-ups of hip pain. Furthermore, both the November 2009 and August 2011 examiners noted that joint function of the hip was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use, and there was no additional limitation of function after repetitive motion. Radiologic examination disclosed marginal osteoarthritis, and the examiner assigned a diagnosis of "minimal degenerative changes" with "zero to minimal loss of function." These findings place the preponderance of the evidence against the claim for an increased evaluation. 38 U.S.C.A. § 5107(b). The Board notes the Veteran's report that he fell due to right leg numbness in 2011. Although this report reflects an increase in numbness, the report does not demonstrate that the symptom of numbness demonstrates or may be attributed to a change in right hip disability. Accordingly, the Board finds that an increased rating is not warranted based on limitation of motion or functional loss, and that increased rating based on pain is not warranted in this case. DeLuca, supra. Right Foot A moderate foot injury warrants a 10 percent evaluation; a moderately severe foot injury warrants a 20 percent evaluation and a severe foot injury warrants a 30 percent evaluation. Actual loss of use of the foot warrants a 40 percent evaluation. 38 C.F.R. § 4.71a, DC 5284. The Veteran's right foot disability is currently rated as 10 percent disabling under DC 5284 for a moderate foot injury. On VA examination in November 2009, the Veteran complained of spontaneous pain in the ball of the foot, 10 times per day, which lasted for 1 hour. He described the pain as burning, aching, sharp and cramping. He reported that the pain was relieved by rest and Naproxen, and indicated that he was sometimes able to function during flare-ups of pain with medication. He reported that at rest, he experienced stiffness and swelling, but no pain, weakness or fatigue. However, he complained of weakness and fatigue while standing or walking. He reported that he was never hospitalized nor had surgery for the foot condition (plantar fasciitis), and that he was not receiving any treatment for the condition at that time. With regard to functional impairment, the Veteran reported that he was unable to stay at a desk for long periods of time, or walk very far, due to pain. As noted above, on physical examination, his posture was normal, but he walked with a limp to avoid putting weight on his right side. The examiner noted that his walk was abnormal, which could be described as imbalance. Examination of the feet did not reveal any signs of abnormal weight bearing or breakdown, callosities, or any unusual shoe wear pattern, and he did not require any assistive device for ambulation. Examination revealed tenderness in the right foot, but no painful motion, edema, disturbed circulation, weakness, atrophy of the musculature, heat, redness, or instability. There was active motion in the metatarsophalangeal joint of the right great toe. Palpation of the plantar surface of the right foot revealed slight tenderness. During weight bearing and non-weight bearing, alignment of the Achilles tendon was normal on the right. There was no evidence of pes planus, pes cavus, hammer toes, Morton's Metatarsalgia, hallux valgus, or hallux rigidus. The examiner also noted that the Veteran did not have any limitation with standing or walking, and he did not require any type of support with his shoes. Non-weight bearing X-rays of the right foot were within normal limits. His diagnosis of plantar fasciitis of the right foot was continued. During his most recent VA examination in August 2011, the Veteran complained of pain, weakness, occasional swelling, and sporadic numbness in the right foot. He reported that he was taking prescribed pain medication and wearing an ankle foot support he obtained in 2010, but indicated that he did not use any walking aids, and that he had not had any surgery and was not seeing a specialist for the right foot. On physical examination, the examiner noted that the Veteran wore an ankle foot support and back brace, but there was no abnormality and no deformity of the right foot noticed. In addition, there was no swelling or edema, or pain or tenderness on palpation. The foot was warm and the color was normal, and there was no neurovascular defect and no calluses noticed. Movement of the foot was normal and he was able to stand and walk a few steps on his heels and toes and able to squat. There was no evidence of metatarsalgia, hammer toes, hallux valgus, hallux rigidus, pes cavus, claw foot, or weak foot. The examiner also noted that there was no malunion or nonunion of the tarsal or metatarsal bones. The examiner also noted that the Veteran's right foot disability did not impact his ability to work. With regard to the DeLuca factors, the Board notes that the Veteran complained of flare-ups of pain in the ball of the foot, 10 times per day, which lasted for 1 hour, which caused functional impairment with prolonged sitting and walking. See November 2009 VA examination report. However, the Board also notes that during on VA examination in November 2009, the Veteran reported that his pain was relieved by rest and Naproxen, and indicated that he was sometimes able to function during flare-ups of pain with medication. He also reported that he was never hospitalized nor had surgery for the foot condition, and that he was not receiving any treatment for the condition. In August 2011, he indicated that he did not use any walking aids, that he had not had any surgery, and that he was not seeing a specialist for the right foot. Furthermore, during the period on appeal, there has been no evidence of abnormality or deformity of the right foot. Accordingly, the Board finds that an increased rating under DeLuca is also not warranted in this case. Extra-schedular consideration Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1) (2012). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). The Veteran's disabilities, as discussed above, are manifested by symptomatology contemplated by the rating criteria which have been applied in this case. Furthermore, the record does not reflect that the Veteran has required frequent periods of hospitalization due to his service-connected right ankle, hip or foot disabilities, and to the extent that the Veteran claims that his service-connected disabilities interfere with his employment (see April 2100 employer statement), the rating schedule does contemplate industrial impairment and considerable time lost from work. 38 U.S.C.A. § 1151; 38 C.F.R. § 4.1 (2011). Moreover, consideration of overall industrial impairment is addressed in the Remand for TDIU, below. Veteran has not reported any symptoms outside of those contemplated by the rating schedule. No other factors have been reported that are outside the rating schedule. Hence, referral for consideration of an extraschedular rating is not warranted. ORDER An increased rating for degenerative joint disease of the right ankle is denied. An increased rating for degenerative joint disease of the right hip is denied. An increased rating for plantar fasciitis of the right foot is denied. REMAND During VA examinations in 2009 and 2011, the Veteran complained of weakness, stiffness, swelling, heat, giving way, locking, fatigability, tenderness, and pain of the right knee. He was able to flex his right knee to 110 degrees or more without pain and to extend the right knee to 0 degrees. The Veteran contends, in a February 2013 presentation, that he is experiencing reduction in range of motion. The Board finds this contention more specific than the contentions as to increased severity of right hip, ankle, and foot disabilities, and these complaints are potentially significant, since flexion of the right knee was reduced, with consideration of pain, at the August 2011 VA examination, and extension was normal. The Board acknowledges that no claim for TDIU was addressed by the Board in its most recent Remand of the claim. However, the Court of Appeals for Veterans Claims has clarified that claims for TDIU are inferred from the continuation of claims for increased ratings following denial of TDIU by an RO, and the Board finds that the issues on appeal are more accurately stated as listed on the title page of this decision. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded an opportunity to submit or identify any evidence, clinical or non-clinical, which might substantiate his claims. 2. Updated VA clinical records since February 2012 should be obtained and added to the files available for appellate review. 3. The Veteran should be afforded a VA examination to evaluate the current severity of his right knee disability. The examiner should review the claims folder and note such review in the examination report or addendum. Any indicated studies, including X-ray studies should be performed. The examiner should report the ranges of right knee flexion and extension in degrees. In reporting the results of range of motion testing, the examiner should specifically identify the points, if any, at which pain begins. The examiner should determine whether the right knee disability is manifested by weakened movement, excess fatigability, incoordination, or flare-ups or pain. The examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the Veteran describes flare-ups), and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. If feasible, the examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. The examiner should also report whether there is instability or subluxation and express an opinion as to the severity of such instability or subluxation. The examiner should describe any other right knee functional loss. 4. An opinion concerning the impact of the service-connected disabilities on the Veteran's ability to obtain and maintain substantially gainful employment. Specifically, the medical opinion should explain the types of industrial activities the Veteran remains able to perform despite his service-connected disabilities. The examiner should be provided with a list of the Veteran's service-connected disabilities. The rationale for all opinions expressed should also be provided. 5. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. The RO should also undertake any other development it determines to be indicated. If any benefit sought on appeal is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Tresa M. Schlecht Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs