Citation Nr: 1322912 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 09-37 468 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to an effective date earlier than March 29, 2007, for the 30 percent rating for the service-connected right knee disability. 2. Entitlement to service connection for status post left total knee replacement. 3. Entitlement to a rating in excess of 30 percent for status post right total knee replacement with scar. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from April 1975 to April 1978. These matters come before the Board of Veterans' Appeals (Board) on appeal from December 2008 and March 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In March 2013, a Travel Board hearing was held before the undersigned Veterans Law Judge and a transcript of that hearing is of record. The Board notes that the issues of entitlement to an entitlement to an effective date earlier than March 29, 2007, for the 30 percent rating for the service-connected right knee disability and entitlement to an earlier effective date for entitlement to dependency benefits were separately appealed to the Board. However, as the appellant's claim for entitlement to an earlier effective date for entitlement to dependency benefits is contingent on the effective date of the disability rating, the Board has characterized the issue as noted above. The RO construed a statement received from the appellant on a VA Form 9, received on October 2, 2009, as a claim for an increased rating. The construed claim was received within one year of the December 2008 rating decision granting an increased evaluation of 30 percent from May 1, 2008. The appellant did not specifically express disagreement with the December 2008 rating decision. Thus, the Board agrees with the RO's characterization of the statement as a new increased rating claim rather than as a notice of disagreement. In April 2010, the appellant submitted a "notice of disagreement" regarding the issue of entitlement to service connection for a back disability. The claim was denied in a December 1978 rating decision and a December 2008 rating decision. As the notice of disagreement was not submitted within one year of the most recent rating decision of record, the Board construes the statement as a claim to reopen. The issue of whether new and material evidence has been received to reopen a claim for entitlement to service connection for a back disability, to include as secondary to his right knee disability, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to service connection for a left knee disability, to include due to the service-connected right knee disability is 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 appellant's claim for a compensable rating for his service-connected right knee disability was received on January 9, 2007. 2. The evidence demonstrates the appellant met the criteria for a 30 percent rating for a right knee disability at the time that he filed the claim. 3. The appellant's status post right knee total replacement with surgical scar is manifested by complaints of pain on motion and weakness with flexion of 90 degrees with pain and no additional degree of limitation of motion on repetitive range of motion tests, and a superficial, non-painful scar. CONCLUSIONS OF LAW 1. The criteria for an earlier effective date of January 9, 2007, for the award of a 30 percent rating for a right knee disability have been met. 38 U.S.C.A. §§ 1155, 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.155, 3.157, 3.400 (2012). 2. The criteria for a disability rating greater than 30 percent for status post right knee total replacement with surgical scar have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5055, 5256, 5261, 5262 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the appellant's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. 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 appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. 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 all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). More specific notice is required in claims for increased compensation. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). VA has met all statutory and regulatory notice and duty to assist provisions as to the appellant's claims. In regard to the appellant's claim for an increased rating, appropriate notice was provided in an October 2009 letter prior to initial adjudication of the claim. Mayfield, 444 F.3d at 1333; See Prickett v. Nicholson, 20 Vet. App. 370 (2006). In a July 2009 letter, VA notified the appellant of the information and evidence needed to substantiate and complete a claim for entitlement to an earlier effective date for the 30 percent evaluation for his right knee disability to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain. VA also informed the Veteran of how effective dates are assigned. VA's duty to assist has been satisfied. The appellant's service treatment records and VA medical records are in the file. Private medical records identified by the appellant have been obtained, to the extent possible. The appellant has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the appellant. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the appellant's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). The RO provided the appellant with an appropriate VA examination in November 2009. The examination is adequate because it is based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims folder and appropriate diagnostic tests, to include x-ray. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). The appellant has not reported receiving any recent treatment specifically for this condition and there are no records suggesting an increase in disability has occurred as compared to the prior VA examination findings. There is no objective evidence indicating that there has been a material change in the severity of the appellant's service-connected disorder(s) since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. The November 2009 VA examination report is thorough and provided findings pertinent to the rating criteria. The examination in this case is adequate upon which to base a decision. In regard to the appellant's earlier effective date claim, the determination of whether an earlier effective date is warranted in this case is based upon evidence already in the claims file. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). II. Earlier Effective Date The appellant asserts that he warrants an effective date earlier than May 1, 2008, for the 30 percent rating for his right knee disability. Service connection for a right knee disability was initially granted in a December 1978 rating decision with a noncompensable rating effective April 13, 1978. The appellant filed a claim for a compensable rating which was received by VA on January 9, 2007. In a December 2008 rating decision, the RO granted a temporary evaluation of 100 percent effective March 29, 2007, the day the appellant was admitted for the knee replacement surgery, based on surgical or other treatment necessitating convalescence. A rating of 100 percent was assigned from May 1, 2007, and a rating of 30 percent was assigned from May 1, 2008. The RO also noted that the appellant filed a claim for increased evaluation on January 9, 2007. The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. In a claim for an increased rating, unless specifically provided otherwise, the effective date of an award based on a claim for increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C.A. § 5110(a); see 38 C.F.R. § 3.400. An effective date for a claim for increase may be granted prior to the date of claim if it is factually ascertainable that an increase in disability had occurred within one year from the date of claim. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. §§ 3.400(o)(1) and (2); see Harper v. Brown, 10 Vet. App. 125, 126 (1997). Under 38 C.F.R. § 3.157(b), once a claim for compensation has been allowed, receipt of a VA outpatient or hospital examination or admission to a VA hospital will be accepted as an informal claim for increased benefits. The date on the VA outpatient or hospital examination will be accepted as the date of claim. Id. When the evidence is from a private physician, the date of receipt of such evidence will be accepted when the evidence furnished by or on behalf of the claimant is within the competence of the physician and shows the reasonable possibility of entitlement to benefits. Id. at (b)(2). A March 2007 private operative report reflects that the appellant presented with a history of bilateral knee pain with valgus deformities and bone on bone in the lateral compartment. The appellant had failed nonoperative treatment was offered total knee replacement surgery. In an October 2009 statement, the appellant stated that during the course of twenty years his right knee was not supportive of his body and when his right knee locked he could not lift his right knee high enough off the ground because of stiffness and pain. He stated that he had fallen numerous times on his left knee to keep from damaging his right knee. He stated that both knees were not supportive before surgery in March 2007. In a November 2009 statement, the appellant stated that at times his right leg would lock in place and he would fall straight on his left knee. He stated that this continued for a long time until he decided to get surgery in March 2007. He stated that he could not stand long and he had problems walking up or down stairs. The appellant's service-connected status post right knee total replacement with surgical scar is evaluated under Diagnostic Code 5055. The appellant's right knee was previously evaluated as chondromalacia of the right knee. Under Diagnostic Code 5257, slight recurrent subluxation or lateral instability warrants a 10 percent evaluation; moderate recurrent subluxation or lateral instability warrants a 20 percent evaluation; and severe recurrent subluxation or lateral instability warrants a 30 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The words "slight," "moderate" and "severe" as used in various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2012). Under diagnostic code 5260, 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. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Extension limited to 5 degrees warrants a noncompensable rating, to 10 degrees warrants a 10 percent rating, to 15 degrees warrants a 20 percent rating, to 20 degrees warrants a 30 percent rating, to 30 degrees warrants a 40 percent rating, and to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The Board has carefully reviewed the evidence of record and finds that a preponderance of the evidence supports an effective date of January 9, 2007, for an increased rating of 30 percent. As noted above, the appellant's increased rating claim was received on January 9, 2007. The appellant was hospitalized for right total knee replacement on March 29, 2007, and was granted a 100 percent temporary total evaluation from that date. In a claim for an increased rating, unless specifically provided otherwise, the effective date of an award based on a claim for increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application there for. 38 U.S.C.A. § 5110(a); see 38 C.F.R. § 3.400. Although there is no medical evidence of record from within one year of the appellant's claim indicating the appellant's right knee range of motion, the appellant is competent to report symptoms capable of lay observation. Lay statements may be competent to support a claim for service connection where the events or the presence of disability, or symptoms of a disability are subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds the appellant's statements regarding his right knee symptoms to be credible as they are consistent with the March 2007 private operative report. The March 2007 report reflects that the appellant had a history of increasing pain and disability associated with osteoarthritis of both knees with a valgus deformity and bone on bone. Another operative note indicates the appellant had advanced bilateral knee osteoarthritis. The appellant reported a history of falls. Based on this evidence, the Board finds the appellant's right knee symptoms were equivalent to severe recurrent subluxation or lateral instability warranting a 30 percent evaluation under Diagnostic Code 5257. However, the Board finds that a 30 percent rating is not warranted prior to January 9, 2007, the date of the appellant's claim. As noted above, an effective date for a claim for increase may be granted prior to the date of claim if it is factually ascertainable that an increase in disability had occurred within one year from the date of claim. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. §§ 3.400(o)(1) and (2); see Harper v. Brown, 10 Vet. App. 125, 126 (1997). There is no evidence from prior to January 9, 2007, indicating the symptoms of the appellant's right knee at that time. The evidence of record primarily indicates the state of the appellant's right knee immediately prior the knee replacement surgery in March 2007. The evidence does not reflect that the actual increase in severity of the right knee occurred during the one-year period immediately preceding the date of the claim. Therefore, the Board finds that it is not factually ascertainable that an increase in disability occurred within one year from the date of the claim. Thus, an increased rating is not warranted prior to the date of the claim, January 9, 2007. The appellant has asserted that he filed a claim for an increased rating for his right knee in May 2002. As discussed above, the appellant was granted entitlement to service connection with a noncompensable rating in a December 1978 rating decision. In a March 2002 notice letter, the RO informed the appellant that they were processing his claim for compensation, which was received on March 19, 2002. An August 2003, the appellant submitted a statement requesting the status of his claim. In a September 2003 response to the appellant's Senator, the RO stated that they could not locate the appellant's claim. They requested that the appellant re-submit his claim. A February 2002 statement from the appellant was submitted indicating he was filing a claim to reopen his claim for service connection for a back disability. The statement did not discuss his right knee. The claim was denied in a September 2004 rating decision. There is no evidence in the claim file that the appellant submitted a claim for an increased rating for his right knee disability prior to the January 9, 2007, claim. The evidence indicates that he filed a claim to reopen his claim for a back disability in February 2002. Consequently, the Board finds that an effective date prior to January 9, 2007, is not warranted. For all the reasons stated above, the Board finds that the preponderance of the evidence supports an effective date of January 9, 2007, for the award of a 30 percent rating for the appellant's right knee disability. As the Board finds that the appellant is entitled to a 30 percent rating from January 9, 2007, the appellant is also entitled to increased dependency benefits from that date. III. Increased Rating The appellant contends that he is entitled to a higher rating for status post right knee total replacement with surgical scar. For the reasons that follow, the Board finds that a higher rating is not warranted. Disability evaluations are determined by comparing a veteran's present symptomatology with the criteria set forth in the Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. 4.1 (2012). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the appellant. 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Nevertheless, where, as here, the appellant is appealing the rating for an already established service-connected condition, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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). The appellant's claim for an increased evaluation was received on October 2, 2009. As such, the rating period on appeal is from October 2, 2008. 38 C.F.R. § 3.400(o)(2) (2012). The appellant was afforded a VA examination in November 2009. The appellant reported that right knee replacement joint had painful motion and weakness. On physical examination, the appellant's posture was normal and he walked with a normal gait. There were no signs of edema, instability, abnormal movement, effusion, weakness, redness, heat, deformity, guarding of movement, malaignment or drainage. There was tenderness. There was no subluxation. The right knee had flexion to 105 degrees with pain at 90 degrees. Repetitive range of motion was possible to 105 degrees with no additional degree of limitation. Extension was 0 degrees. The right joint was further limited after repetitive use by pain, fatigue, weakness, lack of endurance, and pain. X-rays showed the right knee prosthesis was well aligned. At the March 2013 hearing, the appellant testified that he still had painful motion. He stated that he did not have full use of his legs anymore. He stated that they got tired and sometimes he caught himself falling. (Board Hearing Transcript (Tr. )at p. 5) The appellant is competent to report symptoms capable of lay observation, such as symptoms of knee pain and falling. Jandreau, 492 F.3d at 1377. The Board finds the appellant's statements to be credible as they are consistent with the evidence of record. The appellant's status post right knee replacement with surgical scar is rated under Diagnostic Code 5055. Under Diagnostic Code 5055, a 30 percent rating is the minimum rating. A 60 percent rating is warranted for chronic residuals consisting of severe painful motion or weakness in the affected extremity. A 100 percent rating is warranted for 1 year following implantation of the prosthesis. Based on the evidence of record, the Board finds that a rating of 60 percent is not warranted. Although the appellant experiences pain on motion, the evidence of record does not reflect chronic severe painful motion or weakness which would warrant a 60 percent evaluation. The November 2009 VA examination does not reflect that the appellant has severe painful motion or weakness in the right knee. The appellant had flexion of the right knee to 90 degrees with pain. Following repetitive range of motion, there was no additional degree of limitation. No weakness was noted on examination. The appellant reported he had flare-ups as often as 3 times per day lasting 3 days with pain of 10 out of 10. He stated that the flare-ups caused unsteady walking and limitation of motion of the joint which was described as mobility limited since surgery. He reported difficulty with standing/walking and an inability to stand for long periods. He stated that condition had not resulted in any incapacitation. Diagnostic Code 5055 also provides for rating by analogy to Diagnostic Code 5256, 5261, or 5262 when the appellant has intermediate degrees of residual weakness, pain, or limitation of motion. Under Diagnostic Code 5256, a 40 percent evaluation is warranted for ankylosis of the knee in flexion at an angle between 10 degrees and 20 degrees; a 50 percent evaluation is warranted for ankylosis in flexion at an angle between 20 degrees and 45 degrees; and a 60 percent evaluation is warranted for extremely unfavorable ankylosis of the knee in flexion at an angle of 45 degrees or more. The November 2009 VA examination report states that there was no anklyosis of the knee upon examination. The appellant has not asserted he had ankylosis of the right knee. Thus, a higher rating is not warranted under Diagnostic Code 5256. Under Diagnostic Code 5261, a 40 percent evaluation is warranted when leg extension is limited to 30 degrees, and a 50 percent evaluation is warranted when extension is limited to 25 degrees. The November 2009 VA examination report indicates the appellant had full extension of 0 degrees in the right knee. Thus, a higher rating is not warranted under Diagnostic Code 5261. Under Diagnostic Code 5262, for impairment of the tibia and fibula, a 40 percent evaluation is warranted when there is nonunion, with loose motion, requiring a brace. The November 2009 VA examination report reflects that an X-ray showed the right knee prosthesis was well aligned. The appellant had a normal gait and did not require any assistive device for ambulation. The appellant had tenderness, but there were no signs of instability, deformity, or malalignment. Therefore, the appellant's right knee does not warrant a higher rating under Diagnostic Code 5262. The Board has also considered whether the appellant is entitled to a higher rating for functional impairment. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The right knee, status post total knee replacement, did not have an additional degree of limitation following repetitive use. The appellant reported painful motion and weakness. He reported difficulty with standing and walking. However, the condition had not resulted in any incapacitation and he did not require any assistive device for ambulation. The Board finds that the appellant's complaints of pain, weakness, and difficulty standing and walking are contemplated in his 30 percent rating under Diagnostic Code 5055. The overall evidence, as described above, does not reveal a disability picture most nearly approximating a 60 percent evaluation under Diagnostic Code 5055 even with consideration of whether there was additional functional impairment. See Deluca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45 and 4.59 (2012). The Board has considered other knee-related diagnostic codes to determine if any would result in a higher or additional separate rating than that already assigned, but finds none. The highest rating available under Diagnostic Code 5057 or Diagnostic Code 5060 is 30 percent. Moreover, the evidence does not demonstrate the right knee had severe recurrent subluxation or flexion limited to 15 degrees. Thus, the appellant would not be entitled to a higher rating under either Diagnostic Code. The appellant is rated for status post right knee total replacement with surgical scar. The Board has considered whether the appellant's right knee surgical scar warrants a separate, higher rating. The November 2009 VA examiner found that there was a linear scar measuring 20 cm by 0.7 cm on the right knee. The scar was not painful on examination. There was no skin breakdown. This was a superficial scar with no underlying tissue damage. Inflammation was absent. Edema was absent. There was no keloid formation. The scar was not disfiguring. The scar did not limit the claimants' motion. There was no limitation of function due to the scar. The appellant stated that the scar caused him mental disturbance. To warrant a compensable rating under the applicable criteria for scars, a scar would need to involve the head, face, or neck and have at least one characteristic of disfigurement (Diagnostic Code 7800); be deep and nonlinear in an area of at least 6 square inches (39 centimeters) (Diagnostic Code 7801); be superficial and affect an area or areas of 144 square inches (929 square centimeters) or greater (Diagnostic Code 7802); be unstable or painful (Diagnostic Code 7804). Any disabling effects not considered in a rating provided under Diagnostic Codes 7800-04 may be evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.118 (2012). Based on the November 2009 VA examination, the surgical scar does not warrant a higher rating under Diagnostic Codes 7800-04. The scar was superficial and not 144 square inches or greater. It was also not unstable or painful. Although the appellant asserted that the scar caused him mental disturbance, the evidence of record does not reflect that he has been diagnosed with a psychiatric disorder due to the scar and the appellant has not asserted that he has a psychiatric disorder related to the scar. The Board has considered whether extraschedular consideration is warranted based on the evidence of functional, including occupational, impairment secondary to the right knee disability. See Barringer v. Peake, 22 Vet. App. 242 (2008). The discussion above reflects that the symptoms of the appellant's right knee disability are contemplated by the applicable rating criteria. The competent medical evidence of record shows that the status post right knee total replacement with surgical scar is primarily manifested by limitation of motion due to pain and weakness. The diagnostic code used to rate the appellant's disability provide for ratings based on limitation of motion, and the effects of pain and functional impairment have been taken into account and are considered in applying the relevant criteria in the rating schedule. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. The effects of the appellant's disability have been fully considered and are contemplated in the rating schedule. Consideration of whether the appellant's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service- connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. The appellant has not asserted that he is unemployable due to his service-connected disability. Accordingly, the Board concludes that a claim for TDIU has not been raised by the record. In conclusion, the Board finds that the preponderance of the evidence is against the appellant's claim for a rating in excess of 30 percent for status post right knee replacement with surgical scar. Consequently, the benefit-of-the-doubt rule is not applicable, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to an earlier effective date of January 9, 2007, for the 30 percent rating for the service-connected right knee disability is granted. Entitlement to a rating in excess of 30 percent for status post right total knee replacement with scar is denied. REMAND Following review of the claims file, the Board finds that the issue of entitlement to service connection for status post left total knee replacement with scar be remanded for additional development. At the November 2009 VA examination, the appellant stated that his left knee condition had existed since 1982, 4 years after his discharge from service. In contrast, at the March 2013 hearing, the appellant indicated that he injured his left knee in service and it also kept bothering him throughout service. (Board Hearing Transcript (Tr.) at p. 3) The appellant's service treatment records reflect that he injured his left knee in January 1978. However, in an April 1978 report of medical history, the appellant only reported having symptoms of stiffness and tightness of the right knee. Thus, the evidence demonstrates that the appellant had a left knee disability and that he had a left total knee replacement, indicating he has a current disability. The appellant's statements regarding the onset of his left knee disability symptoms are contradictory. However, the appellant's statement at the hearing indicates his left knee may be related to his in-service injury on a direct basis. VA must provide an examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for VA to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The November 2009 VA examiner did not address whether the appellant had a left knee disability that was related to service on a direct basis. Thus, a new VA examination and opinion should be obtained as to whether the appellant's left knee condition is related to service on a direct basis, to include due to the in-service left knee injury. The appellant has also asserted that he has a left knee disability secondary to his service-connected right knee disability. The November 2009 VA examiner found that the service relationship of the current diagnosis could not be determined because there was no data detailing the original extent of right knee injury and subsequent concern with left knee. The VA examiner noted that "[t]he following information is needed: any relevant records detailing care for both the right and left knees." In an October 2009 addendum, the VA examiner stated that he could not resolve the issue of whether the left knee condition was related to the service-connected right knee condition without resort to mere speculation because the submitted records did not address the status of the right knee progression to total knee replacement and did not address any impact on the left knee. Since the VA examination, additional private treatment records have been added to the claims file, including copies of December 2006 X-rays of the bilateral knees from Brigham and Women's Hospital. As new evidence has been added showing the state of the right and left knees prior to the knee replacement surgery, another opinion is necessary. Accordingly, the case is REMANDED for the following action: 1. Schedule the appellant for a VA examination to determine the following: (a) Whether it is at least as likely as not (50 percent probability) that the appellant's left knee disability is related to service, to include the in-service left knee injury in January 1978. (b) Whether it is at least as likely as not (50 percent probability) that the appellant's left knee disability is caused or aggravated by his service-connected right knee disability. Forward the claims file to the VA clinician. The VA clinician is requested to provide a thorough rationale for any opinion provided. If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided. 2. Thereafter, readjudicate the issue on appeal of entitlement to service connection for a left knee disability, to include as secondary to the service-connected right knee disability. If the benefit sought is not granted, issue a supplemental statement of the case and afford the appellant an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. The appellant has the right to submit additional evidence and argument on the matter 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). ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs