Citation Nr: 1322886 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 09-49 251 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent for the service-connected right knee degenerative joint disease, status post total knee replacement, beginning on October 1, 2007. (A 100 percent disability rating has been assigned prior to October 1, 2007.) 2. Entitlement to a disability rating in excess of 30 percent for the service-connected left knee degenerative joint disease, status post total knee replacement, prior to May 8, 2012. (A 100 percent disability rating has been assigned from May 8, 2012 to July 1, 2013.) 3. Entitlement to a disability rating in excess of 30 percent for the service-connected left knee degenerative joint disease, status post total knee replacement, beginning on July 1, 2013. 4. Entitlement to service connection for an innocently acquired psychiatric disorder, to include depression, claimed as secondary to service-connected knee disabilities. 5. Entitlement to a total disability rating based on individual unemployability by reason of service-connected disability (TDIU). REPRESENTATION Veteran represented by: Colin E. Kemmerly, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Donohue, Counsel INTRODUCTION The Veteran had active service from January 1971 to March 1986. This matter initially came before the Board of Veterans' Appeals (Board) on appeal of a February 2008 rating decision by the RO in Columbia, South Carolina. The RO in Montgomery, Alabama, currently has original jurisdiction over the Veteran's claims. In March 2013, the Veteran testified at hearing from the RO via videoconferencing technology with the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the Veteran's VA claims file. As noted, this matter comes before the Board on appeal from a February 2008 rating decision. While the Veteran initiated appeals of prior February 2004 and November 2005 rating decisions, and Statements of the Case were issued in August 2004 and May 2007, he did not file a VA Form 9 or its equivalent and these decisions became final. See Archbold v. Brown, 9 Vet.App. 124, 130 (1996). The Board observes that neither the Veteran nor his attorney has argued that the prior rating decisions are not final. Similarly, in a November 2010 rating decision, the RO denied service connection for blood clots. While the Veteran initiated an appeal of this decision, and a Statement of the Case was issued in October 2012, he did not file a timely VA Form 9 or its equivalent and this decision became final. See Archbold, supra. Please note this appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). The issues of service connection for an innocently acquired psychiatric disorder, TDIU, and an increased rating for right knee degenerative joint disease, status post total knee replacement, beginning on July 1, 2013, are being remanded to the RO. FINDINGS OF FACT 1. The service-connected right knee degenerative joint disease, status post total knee replacement, is shown to be manifested by pain and a decreased range of flexion. 2. Prior to April 4, 2008, the service-connected left knee degenerative joint disease, status post total right knee replacement is shown to have been manifested by pain and a decreased range of extension and flexion. 3. Beginning on April 4, 2008, the service-connected left knee degenerative joint disease, status post total knee replacement is shown to be manifested by severe pain and weakness in the affected extremity. CONCLUSIONS OF LAW 1. The criteria for the assignment of an increased rating in excess of 30 percent for the service-connected right knee degenerative joint disease, status post total knee replacement, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.71, 4.71a including Diagnostic Codes 5055, 5256, 5261, 5262 (2012). 2. Prior to April 4, 2008, the criteria for the assignment of an increased rating in excess of 30 percent for the service-connected left knee degenerative joint disease, status post total knee replacement, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.71, 4.71a including Diagnostic Codes 5055, 5256, 5261, 5262 (2012). 3. Beginning on April 4, 2008, the criteria for the assignment of a 60 percent disability rating for the service-connected left knee degenerative joint disease, status post total knee replacement, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.68, 4.71a including Diagnostic Codes 5055, 5256, 5261, 5262 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS After the evidence has been assembled, the Board is responsible for evaluating the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). Indeed, in Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Furthermore, the Board notes that it has reviewed all of the evidence in the claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate the issues adjudicated herein and what the evidence in the claims file shows, or fails to show, with respect to these claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). I. The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The law and regulations also require VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In March 2006, the Court issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) and held that the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, 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. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Board also notes that the Court has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess, supra. In the present case, VA issued a VCAA notice letter to the Veteran in November 2007. This letter informed the Veteran of what evidence was required to substantiate his increased rating claims and of his and VA's respective duties for obtaining evidence. The November 2007 letter also informed the Veteran as to the law pertaining to the assignment of a disability rating and effective date as the Court required in Dingess. In short, the record indicates that the Veteran received appropriate notice pursuant to VCAA. VCAA also provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. In the present appeal, the Board finds that reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claims, and that there is no reasonable possibility that further assistance would aid in substantiating such claims. In particular, the record contains the Veteran's service treatment records, VA medical records, private treatment records, VA examination reports, records from the Social Security Administration and the March 2013 hearing transcript. The Board has carefully reviewed the Veteran's statements and concludes that he has not identified further evidence not already of record. The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. As will be discussed, the Veteran was provided with VA examinations in December 2006, December 2007 and June 2012. The reports of these examinations reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate physical examinations and rendered appropriate diagnoses consistent with the remainder of the evidence of record, and pertinent to the rating criteria. See Barr v. Nicholson, 21 Vet.App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet.App. 295 (2008). While the record does not reflect that the December 2006 VA examiner reviewed the Veteran's claims folder, the Veteran is not prejudiced thereby as the examiner considered medical history as reported by the Veteran which is consistent with that contained in the his claims file. The Board therefore concludes that the examinations are adequate for rating purposes. See 38 C.F.R. § 4.2 (2012). The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has been accorded the opportunity to present evidence and argument in support of his claims. He exercised the option of a personal hearing and was afforded one in March 2008 as detailed in the Introduction. In November 2012, the Veteran's attorney argued that the RO had violated the Veteran's due process rights when it failed to provide him with a copy of the June 2012 VA examiner's credentials. While cognizant that the Veteran has not been provided with the credentials of any of his VA examiners, the Board observes that he has not presented any evidence or argument suggesting that they were not competent to conduct examinations or provide medical opinions. According to 38 C.F.R. § 3.159(a)(1), competent medical evidence is "evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions." The Court has held that the Board is entitled to assume the competence of a VA examiner. See Cox v. Nicholson, 20 Vet.App. 563, 569 (2007) (explaining that "the Board is entitled to assume the competence of a VA examiner," and the appellant bears the burden of rebutting the Board's presumption of competence); see also Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009) ("Absent some challenge to the expertise of a VA expert, [there is] no statutory or other requirement that VA must present affirmative evidence of a physician's qualifications in every case as a precondition for the Board's reliance upon that physician's opinion."). The Veteran has not provided any specific assertions as to why the June 2012 VA examiner was not qualified, why she should not be presumed competent, or how he was harmed by the perceived failure to provide him with the examiner's credentials. As a result, the Board finds that the examiner is competent and the Veteran has not been harmed by the RO's failure to provide him with the credentials of his VA examiners. In November 2012, the Veteran's attorney observed that the RO had reviewed electronic copies of the Veteran's VA treatment records when it adjudicated his claim in the October 2012 Supplemental Statement of the Case. It was argued that a failure to include the physical records in the Veteran's claims file may violate VA's duty to assist the Veteran. The Board notes, however, that the electronic records referenced in the SSOC have been stored digitally in the Veteran's electronic claims file and are available for review by any authorized VA adjudicator or examiner. As a result, the Veteran is not prejudiced by the lack of paper records in his claims file. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and that no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claim has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained. II. Law and Regulations Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. The Court has held 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. See Hart v. Mansfield, 21 Vet.App. 505 (2007). The evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (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. 38 C.F.R. § 4.40 (2012). Consideration is to be given to 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. 38 C.F.R. § 4.45 (2012). The Veteran's knee disabilities are currently rated under Diagnostic Code 5055 (knee replacement (prosthesis)). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet.App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet.App. 625, 629 (1992). Diagnostic Code 5055 is obviously applicable to the instant case, primarily because it pertains specifically to the disability at issue (total knee replacement) but also because it provides specific guidance as to how symptoms of this disability are to be evaluated. The Board can identify nothing in the evidence to suggest that another diagnostic code would be more appropriate, and the Veteran has not requested that another diagnostic code should be used. Accordingly, the Board concludes that he is appropriately rated under Diagnostic Code 5055, with reference to other diagnostic codes as appropriate as required by the diagnostic criteria set forth therein. Under Diagnostic Code 5055, the minimum rating is 30 percent. A 60 percent rating is warranted with chronic residuals consisting of severe painful motion or weakness in the affected extremity. If there are intermediate degrees of residual weakness, pain or limitation of motion, Diagnostic Code 5055 instructs to rate by analogy to Diagnostic Codes 5256, 5261, or 5262. Under Diagnostic Code 5256, ankylosis of a knee that is at a favorable angle in full extension, or in slight flexion between 0 and 10 degrees, warrants a 30 evaluation. Ankylosis in flexion between 10 and 20 degrees is rated 40 percent disabling. Ankylosis in flexion between 20 and 45 degrees is rated 50 percent disabling. Ankylosis which is extremely unfavorable, in flexion at an angle of 45 degrees or more is rated 60 percent disabling. See 38 C.F.R. § 4.71a, Diagnostic Code 5256 (2012). Under Diagnostic Code 5260, limitation of flexion of the leg provides a non-compensable rating if flexion is limited to 60 degrees, a 10 percent rating where flexion is limited to 45 degrees, a 20 percent rating where flexion is limited to 30 degrees, and a maximum 30 percent rating if flexion is limited to 15 degrees. Under Diagnostic Code 5261, limitation of extension of the leg provides a non-compensable rating if extension is limited to five degrees, a 10 percent rating if limited to 10 degrees, a 20 percent rating if limited to 15 degrees, a 30 percent rating if limited to 20 degrees, a 40 percent rating if limited to 30 degrees, and a 50 percent rating if limited to 45 degrees. Under Diagnostic Code 5262, pertaining to impairment of the tibia and fibula, a 10 percent disability rating is assigned for malunion with slight knee or ankle disability, and a 20 percent disability rating is warranted for malunion with moderate knee or ankle disability. A 40 percent disability rating is appropriate where there is nonunion of the tibia and fibula with loose motion requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. III. Right Knee Disability As noted, a 100 percent disability rating has been assigned from the date of service connection, August 10, 2006, through October 1, 2007. A 30 percent disability rate is in effect thereafter. The next higher rating under Diagnostic Code 5055 is 60 percent. The Board must first determine if there are intermediate degrees of residual weakness, pain or limitation of motion which allow it to rate the disability under Diagnostic Codes 5256, 5261, or 5262. Diagnostic Code 5256 pertains to ankylosis. Ankylosis is "immobility and consolidation of a joint due to disease, injury, surgical procedure." See Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. Upon review, there is no competent and credible evidence indicating right knee functional impairment comparable to ankylosis, even with consideration of additional functional impairment due to pain, including on repeated use; Diagnostic Code 5256 is therefore not for application. Moreover, the Veteran does not appear to contend that his right knee is ankylosed. With respect to limitation of extension of the Veteran's right knee, the December 2007 and June 2012 VA examination reports indicate that the Veteran had maintained full extension of the knee. These findings were consistent with a noncompensable rating under Diagnostic Code 5261, and fall far short of what is required for the assignment a 40 percent or 50 percent rating. Diagnostic Code 5261 therefore does not avail the veteran. With respect to Diagnostic Code 5262, there is no medical evidence of impairment of the tibia and fibula, either nonunion or malunion. Accordingly, rating by analogy under Diagnostic Codes 5256, 5261, or 5262 is not warranted. The Board will therefore move on to a discussion of a higher rating under Diagnostic Code 5055. To warrant a 60 percent disability rating under Diagnostic Code 5055, the evidence must demonstrate chronic residuals consisting of severe painful motion or weakness in the left knee. The criteria in this Diagnostic Code are disjunctive, not conjunctive. See Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). Therefore, evidence of either severe painful motion or weakness will suffice for an increased disability rating. Upon a review of the Veteran's treatment records, the December 2007 VA examiner noted that there had been no instability in the Veteran's right knee following his knee replacement surgery. While stability testing was not conducted during the examination, the VA examiner stated that X-ray studies of the Veteran's knee revealed that his prosthesis was in "good position with no loosening and no evidence of instability." It was also noted that the Veteran's gait was normal, and there was no swelling in his right knee. While the Veteran arrived with a cane, the examiner stated that he could walk without assistive devices and the Veteran estimated that he could walk between 1/2 to 1 mile. Weakness of the right knee was not identified. During the June 2012 VA examination, the Veteran demonstrated full muscle strength in his right knee. A physical examination also revealed that his right knee was stable, and there was no evidence of patellar subluxation/dislocation. While the examiner noted that the Veteran walked with a cane, it was noted that this was utilized for his left knee. Therefore, there was no indication of weakness in the right knee to warrant an increased disability rating under Diagnostic Code 5055. With respect to severe painful motion, the December 2007 VA examiner found that while the Veteran experienced pain in his knee, there was no limitation of movement based on pain. The June 2012 VA examination report also noted that the Veteran did not experience a limitation of motion in his right knee due to pain. In fact, during both examinations, the Veteran was able to achieve well over half the range of flexion and a full range of extension. During the March 2013 hearing, the Veteran testified that he experiences swelling in his right knee and has constant pain. See hearing transcript, pages 5-6, 10. The Veteran also testified that he uses a cane because his knees are not stable and that he can only walk for half an hour at a time. Id at 9-10. While cognizant that the Veteran utilizes a cane and has stated that he experiences pain in his knee, based on the evidence of record, to include his testimony that he could walk for half an hour at a time, the Board finds that "severe painful motion" necessary for a 60 percent rating under Diagnostic Code 5055 has not been demonstrated. The Board further notes in passing that a 100 percent rating is not available to the Veteran, as it is only warranted for one year following implementation of the prosthesis. In short, the objective medical evidence of record indicates that the Veteran is not entitled to an increased disability rating under Diagnostic Code 5055. As noted, in DeLuca, the Court held that VA's review of a service-connected musculoskeletal disability must include an assessment of the functional impairment caused by that disability. 38 C.F.R. §§ 4.40, 4.45 and 4.59 (2012). While cognizant that the December 2007 VA examiner stated that the Veteran described pain in his knees which prevented him from lifting anything that weighed more than 20 pounds and caused difficulty climbing stairs, physical examinations conducted during the December 2007 and June 2012 VA examination did not reveal any additional functional impairment following repetitive use. While the Board has considered the Veteran's complaints, the evidence of record does not indicate that he experiences any additional functional impairment following repetitive use. Thus, there is no basis upon which to assign a higher level of disability based on 38 C.F.R. §§ 4.40 and 4.45. The matter of an extraschedular rating will be addressed in a common discussion. IV. Left knee disability prior to May 8, 2012 The Veteran is seeking a disability rating in excess of 30 percent for his service-connected degenerative joint disease of the left knee, status post total knee replacement. For the following reasons, the Board finds that a 60 percent evaluation is warranted on and after April 4, 2008. A. Prior to April 4, 2008. The service-connected left knee disability is currently rated as 30 percent disabling prior to April 4, 2008. As noted, the Board must first determine if there are intermediate degrees of residual weakness, pain or limitation of motion which allow it to rate the disability under Diagnostic Codes 5256, 5261, or 5262. Upon review, there is also no evidence indicating left knee functional impairment comparable to ankylosis, even with consideration of additional functional impairment due to pain, including on repeated use. Ankylosis has therefore not been demonstrated. With respect to Diagnostic Code 5261, limitation of extension, physical testing conducted during the December 2006 VA examination revealed that the Veteran lacked 10 degrees of extension in his left knee. During the December 2007 VA examination, the Veteran demonstrated full extension. Diagnostic Code 5261 contemplates a disability rating of 10 percent evaluation with limitation of extension to 10 degrees. A disability rating in excess of 30 percent can therefore not be assigned under this diagnostic code. With respect to Diagnostic Code 5262, prior to April 4, 2008, there was no evidence of impairment of the tibia and fibula, either nonunion or malunion. To warrant a 60 percent disability rating under Diagnostic Code 5055, the evidence must demonstrate chronic residuals consisting of severe painful motion or weakness in the left knee. Upon examination in December 2006, the Veteran reported that he walked 30 minutes every day and could walk 1 mile. While the Veteran's gait was not normal, the examiner indicated that this was the result of the right knee, which had recently undergone surgery. During the December 2007 VA examination, the Veteran arrived with a cane, but it was noted that he could walk without assistive devices. He reported that he could walk between 1/2 to 1 mile and that his orthopedist had not restricted his activities. While the VA examiner did not perform stability testing during the examination, it was noted that X-ray studies revealed that his prosthesis was "in good position with no loosening and no evidence of instability." The examiner also reviewed the Veteran's treatment records and noted that instability had not been noted in his left knee. Repetitive testing also did not result in any additional limitation of motion. Therefore, there is no indication of weakness in the left knee to warrant an increased disability rating under Diagnostic Code 5055. With respect to severe painful motion, the December 2006 VA examiner noted that the Veteran did not report pain in his left knee and that there were no additional limitations with repetitive extension of his knee. While the Veteran complained of pain during flexion of his knee between 100 to 120 degrees during the December 2007 VA examination, there was no additional limitation of flexion or extension due to pain. Accordingly, "severe painful motion" necessary for a 60 percent rating under Diagnostic Code 5055 has not been demonstrated. As noted, in DeLuca, the Court held that VA's review of a service-connected musculoskeletal disability must include an assessment of the functional impairment caused by that disability. 38 C.F.R. §§ 4.40, 4.45 and 4.59 (2012). The evidence of record, however, does not reflect impairment that warrants a higher rating based on the functional impairment due to service-connected left knee disability. Specifically, the December 2006 and December 2007 VA examiners stated that there was no additional functional impairment in the Veteran's left knee following repetitive testing. Upon review, there is no basis for the assignment of additional disability due to fatigability, weakness, incoordination and the like prior to April 4, 2008. In light of this evidence, the Board finds that the assignment of additional disability pursuant to 38 C.F.R. §§ 4.40 and 4.45 is not warranted prior to April 4, 2008. A. After April 4, 2008. While receiving VA outpatient treatment on April 4, 2008, the Veteran complained that his left knee would give out. Subsequent VA treatment records indicate that the Veteran's left knee disability had increased in severity. For example, an October 2011 VA orthopedic consult record stated that the Veteran "had been doing very well until 6 months ago when he started having pain in the left knee." The Veteran complained of pain while walking and an inability to walk more than 500 feet due to pain. He also reported that his knee would swell if he walked for more than 15 minutes and that he had been using a knee brace and a cane "which help[ed] a little bit." An examination conducted during the October 2011 VA orthopedic consultation revealed that the Veteran's knee was swollen with "moderate effusion." His knee was described as "very stable" with a "good range of motion" with no pain; however, the X-ray studies revealed tibial component loosening. In a January 2012 VA treatment record, the Veteran described experiencing constant left knee pain that measured 7 out of 10. He reported that nothing would help alleviate his pain. During the March 2013 hearing, the Veteran testified that his left knee pain was "unbearable" prior to his second surgery. See the hearing transcript, page 10. Accordingly, based on this record, the Board finds that the Veteran began experiencing weakness and severe knee pain on April 4, 2008. He has satisfied the criteria for a 60 percent disability rating under Diagnostic Code 5055 beginning on April 4, 2008. The Board has taken into consideration the provisions of 38 C.F.R. §§ 4.40 and 4.45, for the period on and after April 4, 2008; however, the amputation rule set forth at 38 C.F.R. § 4.68 provides that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed. For example, the combined evaluations shall not exceed the 60 percent evaluation set forth under Diagnostic Code 5162, 5163, and 5164 for an amputation of the thigh at the middle or lower thirds; for amputation of the leg with defective stump, thigh amputation recommended; and, amputation not improvable by prosthesis controlled by natural knee action. 38 C.F.R. § 4.68. Thus, as the provisions of 38 C.F.R. § 4.68 limit the combined rating for the right knee degenerative joint disease, status post total knee replacement to 60 percent, the currently assigned 60 percent disability is the maximum rating that can be assigned. Therefore, as a matter of law, the Veteran cannot be granted a disability evaluation in excess of 60 percent for the disability at issue. See Sabonis v. Brown, 6 Vet.App. 426, 430 (1994). V. Extraschedular considerations Under Floyd v. Brown, 9 Vet.App. 88, 95 (1996), the Board cannot make a determination as to an extraschedular evaluation in the first instance. See also VAOPGCPREC 6-96. However, the Board can address the matter of referral of a disability to appropriate VA officials for such consideration. According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet.App. 225, 229 (1993). Under Thun v. Peake, 22 Vet.App. 111 (2008) aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009), 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. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the initial inquiry posed by Thun, the Board has been unable to identify an exceptional or unusual disability picture with respect to the Veteran's service-connected bilateral knee disabilities. The evidence fails to demonstrate symptomatology of such an extent that application of the ratings schedule would not be appropriate. In fact, as discussed, the symptomatology of the Veteran's disability, such as pain, weakness, swelling, limitation of motion, are specifically contemplated under the appropriate ratings criteria and 38 C.F.R. §§ 4.40, 4.45. Accordingly, the Board finds that the Veteran's disability picture has been contemplated by the ratings schedule. The Board therefore has determined that referral of the case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER A rating in excess of 30 percent for the service-connected right knee degenerative joint disease, status post total knee replacement is denied. A rating in excess of 30 percent for the service-connected left knee degenerative joint disease, status post total knee replacement, prior to April 4, 2008, is denied. An increased rating of 60 percent for the service-connected left knee degenerative joint disease, status post total knee replacement beginning on April 4, 2008 is granted, subject to the regulations controlling disbursement of VA monetary benefits. REMAND For the following reasons, the Board finds that the remaining issues must be remanded to ensure that the Veteran is accorded full compliance with the statutory duty to assist. The record reflects that the Veteran underwent a total left knee replacement in May 2012. Pursuant to Diagnostic Code 5055, a 100 percent disability rating was assigned for one year following the implantation of his prosthesis. This temporary total evaluation expired on July 1, 2013 and the Veteran's left knee disability is currently assigned a 30 percent disability rating. Upon review, the Veteran has not been afforded a VA examination to determine the extent of his left knee disability following his one year period of convalescence. Accordingly, a VA examination is necessary for the proper adjudication of this claim. With respect to the claim for an innocently acquired psychiatric disorder, the record reflects that the Veteran was provided a VA psychiatric examination in December 2007. Following a review of the claims file and a clinical examination, the VA examiner found that the Veteran did not have a current psychiatric disability. The Board observes, however, that evidence associated with the claims folder following the December 2007 VA examination includes multiple psychiatric diagnoses. For example, the Veteran was diagnosed with adjustment disorder, with mixed anxiety and depressed mood in an August 2007 private Report of Specialized Feasibility Evaluation/Assessment. Under these circumstances, the Board believes that a new examination and nexus opinion must be obtained. See McLendon v. Nicholson, 20 Vet.App. 79 (2006); Charles v. Principi, 16 Vet.App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2012) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). Finally, the Board notes that the claim for a TDIU rating is inextricably intertwined with the service connection claim, as the resolution of that claim might have bearing upon the claim for TDIU. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Accordingly, the remaining issues are REMANDED to the RO for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should take appropriate steps to contact the Veteran and request that he provide information referable to all VA and non-VA treatment he has received for the service-connected left knee and acquired psychiatric disorder since October 2012. After securing any necessary authorization for release of information, the RO should obtain copies of any outstanding records from any identified health care provider. 2. The RO then should have the Veteran scheduled for a VA examination to determine the current severity of the service-connected left knee disability. The claims file should be made available to the examiner for review, and all indicated testing should be performed in this regard. The examiner in this regard should elicit from the Veteran and record a complete medical history and identify detailed clinical findings to permit the evaluation of the service-connected left knee degenerative joint disease status post total knee replacement in terms of the applicable rating criteria. 3. Then, the Veteran should be afforded a VA examination to determine the nature and likely etiology of the claimed acquired psychiatric disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's records from the Social Security Administration. The examiner should opine as to whether it is at least as likely as not that that the Veteran currently has an acquired psychiatric disability that is either caused by or permanently aggravated by his service-connected knee disabilities. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. Then, the RO should schedule the Veteran for an appropriate VA examination to determine the occupational impairment caused by his service-connected disabilities. The claims folder, including a copy of this decision, should be made available to, and should be reviewed by, the examiner in conjunction with the examination. All indicated studies or testing should be conducted. In this capacity, the examiner is advised that the Veteran is currently service connected for residuals of right and left total right knee replacements, each currently evaluated as 30 percent disabling. After reviewing the entire record and examining the Veteran, the VA examiner should opine as to whether, without regard to age or the impact of any nonservice-connected disabilities, there is a 50 percent probability or greater that the service-connected disabilities, either alone or in the aggregate, preclude him securing and following substantially gainful employment (more than marginal) consistent with his educational background and employment experience. A complete rationale for any opinion expressed and conclusion reached should be set forth in a legible report. 5. After completing all indicated development, the RO should readjudicate the issues remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a fully responsive SSOC and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs