Citation Nr: 1324672 Decision Date: 08/02/13 Archive Date: 09/24/13 DOCKET NO. 09-46 950 ) DATE AUG 02 2013 On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for arthritis of the left knee, post anterior cruciate ligament reconstruction, for the period of the appeal prior to October 29, 2010. 2. Entitlement to a disability rating in excess of 30 percent for a left knee disability, post total knee replacement, from December 1, 2011 to September 10, 2012. 3. Entitlement to a disability rating in excess of 30 percent for a left knee disability, post total knee replacement, from September 11, 2012. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran had active service from June 1980 to June 1988 and from December 2004 to September 2005 and additional reserve service. This matter comes before the Board of Veterans' Appeals (Board) from a July 2007 RO decision which denied entitlement to an increased rating in excess of 20 percent for the left knee arthritis status post the ACL reconstruction. A December 2008 rating decision assigned a 100 percent rating to the left knee disability pursuant to 38 C.F.R. § 4.30 based upon convalescence from September 10, 2008 and a 20 percent rating was continued form January 1, 2009. A March 2012 rating decision assigned a 100 percent rating to the left knee total knee replacement from October 29, 2010 and assigned a 30 percent rating from December 1, 2011 under Diagnostic Code 5055. Since the rating for the service-connected left knee disability remains less than the maximum available schedular benefit awardable for the entire period of the appeal, the increased rating claim remains in controversy. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran provided sworn testimony during a hearing on appeal before the undersigned Acting Veterans Law Judge in July 2010. The Board remanded the appeal for further evidentiary development in July 2012. Such development having been accomplished to the extent possible, as discussed below, the matter has been returned to the Board for further appellate review. -2- In July 2009, the Veteran filed a claim for an increased disability rating for his service-connected right knee disability. This claim has not yet been addressed by the RO and is referred for appropriate action. The issue of entitlement to a disability rating in excess of 30 percent for a left knee disability, post total knee replacement, from September 11, 2012, 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. For the time period of the appeal from March 2006 through October 28, 2010, the Veteran's left knee degenerative joint disease was manifested by pain; he did not have limitation of knee motion to a compensable degree; his cruciate ligament repairs were intact; his service connected disability resulted in no more than moderate impairment throughout this time period. 2. From December 1, 2011 to September 10, 2012, following total knee replacement surgery, the Veteran's surgical residuals to the left knee involved mainly pain with some mild instability in the left knee; he did not manifest residual weakness, pain, or limitation of motion to support a higher disability rating. CONCLUSIONS OF LAW 1. A disability rating greater than 20 percent for left knee disability is not warranted for the time period of the appeal from March 2006 through October 28, 2010. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5257, 5258, 5259, 5260, 5261 (2012). -3- 2. A disability rating greater than 30 percent for residuals of left knee total arthroplasty is not warranted for the time period of the appeal from December 1, 2011 to September 10, 2012. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends his left knee disability results in greater functional impairment than is reflected in the 20 percent rating which was in effect prior to the total knee replacement surgery in October 2010. He also requests that the VA consider assigning a separate disability rating based upon instability of the knee. He is presumed to continue to seek the maximum rating provided under law following his knee replacement. Thus, the Board will consider whether a higher disability rating is warranted. AB v. Brown, 6 Vet. App. 35, (1993). Duties to notify and assist When an application for benefits is received, VA has certain notice and assistance requirements under the law. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a). First, proper notice must be provided to a claimant before the initial VA decision on a claim for benefits and must: (1) inform the claimant about the information and evidence not of record necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The VA is also required to inform the Veteran of how the VA assigns disability ratings and effective dates. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided with this information in a May 2007 letter prior to the initial RO decision in this case. With regard to the VA examination reports which are of record, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 -4- (2007). The Veteran was afforded VA examinations to obtain evidence as to the nature and severity of the left knee disability in May 2007, March 2010, June 2010, and September 2012. The Board finds that the VA examinations obtained in this case are adequate with regard to the portion of the increased rating issue decided herein. The examination reports relied upon were predicated on a review of the claims folder and the relevant medical records contained therein, except where noted; contain a description of the history of the disability at issue; and document and consider the Veteran's complaints and symptoms. The examiners considered the available pertinent evidence of record, and provided a rationale for the opinions rendered, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the portions of the issue on appeal which are decided herein has been met. 38 C.F.R. § 3.159(c)(4). In the July 2012 remand, the Board ordered the RO/AMC to identify all non-VA medical treatment for his service-connected left knee disability. The AMC did this, and the Veteran responded in August 2012. In his letter, he stated that had had not been treated by any physician for his left knee since the October 2012 total knee replacement surgery. He also stated that he had not received any medical treatment from the VA for his left knee. In light of his statement that he had received no private medical care, the AMC did not pursue any additional private medical records. The AMC properly obtained the Veteran's VA medical records, however. His VA medical records reveal a very different picture than that represented by the Veteran in his August 2012 communication. According to his VA treatment records, not only had the Veteran been receiving both private and VA medical care for left knee complaints ever since his total knee replacement surgery, but he underwent a second major procedure on his left knee in December 2010, involving manipulating the knee joint and the prosthesis under anesthesia to break up scar tissue which was forming. The VA records reflect that his treating VA physicians requested copies of the private records reflecting this manipulation upon multiple occasions, as well, but the Veteran did not provide the records to his VA physicians either. -5- Given the Veteran's recalcitrance to provide the necessary release to obtain his private orthopedic treatment records for adjudicators to review, the Board determines that proceeding with review of his appeal without further delay is the most practical and equitable course of action. The VA treatment records provide an accurate picture of the condition of his left knee during the time period at issue, and any prejudice to the Veteran's appeal resulting from the unavailability of the private treatment reports subsequent to October 2010 can only be viewed as the Veteran's own responsibility. "The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If the veteran wished to fully develop his claim, he had a corresponding duty to assist by providing the requested information. The Board therefore holds that, even though the Veteran's claim has not been fully developed, the VA has fulfilled its duty to assist him to the extent possible. Thus, the Board will proceed to evaluate the Veteran's claim based on the evidence currently of record. Service treatment records, VA treatment records, some private medical records (as discussed above), and VA examination reports have been obtained and reviewed in support of the Veteran's claim. The Veteran has presented sworn testimony in support of his appeal during a hearing before the undersigned Acting Veterans Law Judge. All relevant records and contentions have been carefully reviewed. The Board therefore concludes that the VA's duties to notify and assist have been met with regard to the matters decided herein. Standard of review Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C.A. § 7104(a). 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. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to -6- prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board must consider all the evidence of record and discuss in its decision all "potentially applicable" provisions of law and regulation. See 38 U.S.C. § 7104(a); Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). The Board is also required to provide a statement of reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for its decision, as well as to facilitate further appellate review. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 1 Vet. App. 517, 527 (1995); Gilbert, 56 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Analysis Historically, the Veteran injured his left knee while on active duty for training with the reserves in February 2002. He underwent a left anterior cruciate ligament restoration surgery in May 2002. Service connection for traumatic arthritis, post ACL reconstruction was granted effective in October 2002. A 20 percent disability rating was assigned at that time under Diagnostic Codes 5010 and 5257. The Veteran underwent arthroscopic surgery in September 2008 and a temporary total disability rating for convalescence was assigned from September 10, 2008 to December 31, 2008. The 20 percent rating was continued form January 1, 2009. The Veteran underwent a total knee replacement in October 2010 and a 100 percent schedular disability rating was assigned for the period of one year, from October 29, 2010 to November 30, 2011 under Diagnostic Code 5055. Effective in December 1, 2011, a 30 percent disability rating was assigned under Diagnostic Code 5055. Disability evaluations are assigned to reflect levels of current disability. The appropriate rating is determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes -7- identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating claims for increased ratings, the Board must evaluate the Veteran's condition with a critical eye toward the lack of usefulness of the body or system in question. 38 C.F.R. § 4.10. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. §§ 4.1, 4.41; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While a request for an increased rating must be viewed in light of the entire relevant medical history; where, as here, entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. 38 C.F.R. § 4.1; Francisco v. Brown, 1 Vet. App. 55, 58(1994). Because the level of a veteran's disability may fluctuate over time, the VA is required to consider the level of the veteran's impairment throughout the entire appeal period. In this respect, staged ratings are a sensible mechanism for allowing the assignment of the most precise disability rating—one that accounts for the possible dynamic nature of a disability while the claim works its way through the adjudication process. O'Connell v. Nicholson, 21 Vet. App. 89 (2007). In another relevant precedent, the Court noted 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. In reaching this conclusion, the Court observed that when a claim for an increased rating is granted, the effective date assigned may be up to one year prior to the date that the application for increase was received if it is factually ascertainable that an increase in disability had occurred within that timeframe. 38 U.S.C.A. § 5110. Hart v. Mansfield, 21 Vet. App. 505 (2007). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of -8- function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In evaluating claims for increased ratings, VA must evaluate the veteran's condition with a critical eye toward the lack of usefulness of the body or system in question. 38 C.F.R. § 4.10. A disability of the musculoskeletal system is measured by the effect on ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Weakness is as important as limitation of motion in assigning the most accurate disability rating. 38 C.F.R. § 4.40. Although § 4.40 does not require a separate rating for pain, it does provide guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. The Board has a special obligation to provide a statement of reasons or bases pertaining to § 4.40 in rating cases involving pain. Spurgeon v. Brown, 10 Vet. App. 194 (1997). Disability of the joints is measured by abnormalities of motion, such as limitation of motion or hypermobility, instability, pain on motion, or the inability to perform skilled motions smoothly. 38 C.F.R. § 4.45. Painful motion with joint or periarticular pathology and unstable joints due to healed injury are recognized as productive of disability entitled to at least a minimal compensable rating for the joint. 38 C.F.R. § 4.59. Under section 4.59, painful motion is considered limited motion even though a range of motion is possible beyond the point when pain sets in. Hicks v. Brown, 8 Vet. App. 417, 420-21 (1995)(rev 'd on other grounds). Impairment of the knee related to arthritis is evaluated based upon limitation of motion of the knee. Limitation of flexion to 15 degrees is rated as 30 percent disabling. Limitation flexion to 30 degrees is rated as 20 percent disability, while limitation of flexion to 45 degrees is rated as 10 percent disabling. The governing regulation specifically requires that limitation of flexion to 60 degrees is noncompensable. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of leg extension is rated as 50 percent when such limitation is to 45 degrees. When -9- extension is limited to 30 degrees, a 40 percent disability rating is assigned. When extension is limited to 20 degrees, a 30 percent disability rating is assigned. In the case of extension limited to 15 degrees, a 20 percent disability rating is assigned. When extension is limited to 10 degrees, a 10 percent disability rating is assigned. Again, the governing regulation specifically requires that limitation of extension to 5 degrees is noncompensable. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Range of knee and leg motion is depicted at 38 C.F.R. § 4.71, Plate II. Other impairment of the knee, such as recurrent subluxation or lateral instability is rated as 30 percent disabling when such impairment is severe. Moderate impairment of the knee is rated as 20 percent disabling, while slight impairment of the knee is rated as 10 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint is rated as 20 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Following surgery for such symptoms, a 10 percent disability rating is assigned for residual symptoms. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Following a total knee replacement, such as the surgical procedure the Veteran underwent in October 2010, a 100 percent disability rating is assigned for a year following the implantation of the knee prosthesis. After that first year, a minimum rating of 30 percent disabling is assigned. With intermediate degrees of residual weakness, pain, or limitation of motion the residual knee impairment is rated by analogy to diagnostic codes 5256, 5261, or 5262. With chronic residuals consisting of severe painful motion or weakness in the affected extremity, the residual knee impairment is rated as 60 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5055. The Board notes that in assigning an appropriate rating, the policy against "pyramiding" of disability awards enumerated by 38 C.F.R. § 4.14 must be considered. In other words, while several diagnostic codes may apply in the instant case, "the rating schedule may not be employed as a vehicle for compensating a claimant twice (or more) for the same symptomatology; such a result would overcompensate the claimant for the actual impairment of his earning capacity." -10- Brady v. Brown, 4 Vet. App. 203, 206 (1993). However, the VA General Counsel has explained that a claimant who has arthritis and instability of the knee may be rated separately under DC 5003 and DC 5257 "based on additional disability." VAOPGCPREC 23-97. In another precedent opinion pertaining to the rating of knee disabilities, the VA General Counsel provided a discussion of the interplay between these different regulations and the part-specific diagnostic codes in the rating schedule. VAOPGPREC 9- 98, 63 Fed. Reg. 56704 (1998). The General Counsel held that diagnostic codes involving disability ratings for limitation of motion of a part of the musculoskeletal system do not subsume sections 4.40 and 4.45. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The General Counsel also held that limitation of motion in the affected joint or joints is a common manifestation of arthritis, and that the Court has indicated that Diagnostic Code 5003 is to be 'read in conjunction with' section 4.59 and that Diagnostic Code 5003 is 'complemented by1 section 4.40. See Hicks. Thus, sections 4.40, 4.45, and 4.59 are all applicable in evaluating arthritis. The General Counsel held that the medical nature of the particular disability to be rated under a given diagnostic code determines whether the diagnostic code is predicated on loss of range of motion. The same General Counsel opinion held that in applying sections 4.40, 4.45, and 4.59, rating personnel must consider the claimant's functional loss and clearly explain what role the claimant's assertions of pain played in the rating decision. Smallwood v. Brown, 10 Vet. App. 93, 99 (1997). See also Quarles v. Derwinski, 3 Vet. App. 129, 140 (1992) (Section 4.45 requires analysis of effect of pain on the disability). The functional loss due to pain is to be rated at the same level as the functional loss where motion is impeded. Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Under section 4.59, painful motion is considered limited motion even though a range of motion is possible beyond the point when pain sets in. Hicks, 8 Vet. App. at 421. The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 1 Vet. App. 498, 506 -11 - (1995), aff’d per curiam, 78 F.3d 604 (Fed.Cir.1996). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 1 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Evaluation from March 2006 through October 28, 2010 Review of the Veteran's VA medical records dated during the year prior to the instant claim for an increased rating, from March 2006 to March 2007, reveals no complaints or findings referable to his left knee. Hart. In March 2007, the Veteran complained of knee and back pain, for which he requested hydrocodone or codeine to help him sleep at night. He was prescribed a left knee brace and sent for physical therapy to include whirlpool baths. According to a March 2007 nursing note, the -12- Veteran reported that he worked out at the gym twice a week and walked every other day for exercise. The Veteran underwent a VA examination for purposes of compensation in May 2007. At that time, he reported a pain level of 5 out of 10 when he was sitting, and a pain level of 9 out of 10 after standing and walking for thirty or forty minutes. He complained of a feeling of the knee giving way, although he fortunately had not actually fallen. He was taking Motrin daily and applying an analgesic cream to the knee. He also wore a brace. He reported that standing and walking for thirty or forty minutes would precipitate a flare-up, during which he would be unable to perform any daily activities. Upon clinical examination, tenderness was noted upon palpation, but no swelling, edema, effusion, or instability. The Veteran was observed to walk with a slight guarding of the left knee and a slight limp to the left side. Range of motion testing revealed extension of 0 degrees and flexion of 130 degrees, after three repetitions. The Veteran appeared to be in pain beyond 100 degrees of flexion, however. The examiner also noted that the Veteran had more pain in the left knee upon repeated use. Crepitation was noted during motion. No ligamentous instability was noted. Strength testing revealed slightly decreased strength in the left quadriceps and hamstring muscles as compared to the right quadriceps and hamstring muscles. The examiner rendered a diagnosis of status post repair of the anterior cruciate ligament tear in the left knee with degenerative joint disease. An April 2008 X-ray of the left knee was interpreted as showing extensive tricompartmental osteophytosis, to include intra-articular bodies. There was a likely degenerative cyst in the proximal tibia and moderate medial compartment narrowing. The impression was moderate medial compartment narrowing and intra-articular bodies. The Veteran had an orthopedic consultation in May 2008. He was given bilateral knee injections and a prescription for a new left knee brace at that time. He reported that he was taking ibuprofen and Vicodin on a daily basis, for knee pain which was sometimes so severe as to awaken him at night. Upon examination of the left knee, there was no erythema or warmth. He had joint line tenderness, and active range of motion from 0 to 130 degrees with pain in the joint line. He had slight crepitus with range of motion and a nontender patellar grind -13- test. His collateral ligaments were intact with no increased laxity. The diagnosis was of moderate degenerative joint disease. A July 2008 magnetic resonance imaging study was interpreted as showing a recurrent left medial meniscal tear with advanced medial compartment osteoarthritis. X-rays of the same date show degenerative changes in both knees with the left being worse than the right. A July 2008 private orthopedic consultation note reflects the Veteran's complaints of left knee swelling, locking up, and a tingling sensation in his feet. He reported that the prior injections did not improve his symptoms. Upon clinical examination, the Veteran's left knee was somewhat swollen, and tender at the joint line. He had range of left knee motion from 0 to 135 degrees. The Veteran reported that for exercise, he did sit ups and pushups, as well as walking. The Veteran underwent arthroscopic surgery on his left knee in September 2008. Upon visualization, his physicians discovered grade 4 degenerative changes in the left knee, including severe wear involving all three major compartments of the knee; and tears of the medial and lateral meniscus. The prior anterior cruciate ligament and posterior cruciate ligament grafts were noted to have remained intact. A microfracture procedure was performed on the medial femoral condyle, as well as repair of the medial and lateral meniscus tears. The surgeon concluded his report by noting that the Veteran was "actually very close to requiring a total knee arthroplasty." In his November 2009 substantive appeal, the Veteran asserted that his left knee constantly swells and fills up with fluid. He stated he has to constantly put heat and ice treatments on his knee and takes pain medication constantly. The report of a December 2009 VA orthopedic surgery consultation reflects the Veteran's report that the 2008 surgery had helped for about 6 months, but after that the pain had returned. He reported that he could only stand on his knee for about twenty minutes due to pain and that the pain worsened with activity. X-rays were interpreted as showing "fairly severe" degenerative joint disease. Upon examination, he had range of left knee motion from 0 to 120 degrees with -14- tenderness toward the end point. Again joint line tenderness was observed. The diagnostic assessment was of severe left knee degenerative joint disease with an old anterior cruciate reconstruction. A VA examination was provided in March 2010. At that time, the Veteran reported a constant dull ache of the left knee, with increased discomfort upon prolonged standing, walking, ascending and descending stairs. He also reported that his left knee gives way frequently and locks up. He was using a knee brace and taking medication. Upon examination, there was tenderness on palpation of the knee. There was no indication of edema, effusion, instability, abnormal movement, guarding of movement, deformity, malalignment, drainage, or weakness. He had range of left knee motion from 0 to 130 degrees, with no evidence of additional limitation of motion following repetition due to increased pain, fatigue, weakness, lack of endurance, or loss of coordination. There was no evidence of discomfort during active and passive range of motion. There was no evidence of instability, locking, or loss or function. A March 2010 X-ray study was interpreted as showing degenerative changes of the left knee. Another VA examination was conducted in June 2010. At that time the Veteran reported increasing difficulty dealing with his knee pain, as most medications caused stomach upset. Again, he indicated severe joint pain all the time. He summarized his symptoms as including deformity, giving way, instability, pain, stiffness, weakness, incoordination, decreased speed of joint motion, daily locking episodes, constant effusions, and swelling. He reported that he could stand for 15 to 30 minutes, and could walk 1/4 of a mile. He reported using a cane, a brace, and wheelchair. The examiner noted that the Veteran's gait was antalgic with poor propulsion. Also noted by the examiner was bony joint enlargement, crepitus, tenderness, pain at rest, instability, weakness and guarding of movement. Range of motion testing revealed left knee motion of 0 to 120 degrees, with objective evidence of pain with active motion. VA pharmacy records reflect that prior to his October 2010 total knee replacement surgery, he had been taking two different prescription pain medications for knee pain in conjunction with low back pain. - 15- During the July 2010 Board hearing, the Veteran testified that he believed his left knee impairment should be viewed as severe due to his decreased knee motion and constant pain. He testified that he wore a knee brace all day long. During the time period at issue here, from March 2006 through October 2010, the Veteran's left knee was given a single disability rating of 20 percent for two separate conditions, traumatic arthritis, and "other impairment of the knee," such as subluxation and instability, using Diagnostic Codes 5010 and 5257. When hyphenated diagnostic codes are used in the assignment of diagnostic code numbers, injuries are generally represented by the number assigned to the residual condition on the basis of which the rating is determined. Diseases are identified by the number assigned to the disease itself, followed by a hyphen, with the residual condition listed last. 38 C.F.R. § 4.27. Thus, the RO apparently used Diagnostic Code 5010, representing traumatic arthritis to show the arthritic residuals of the injury sustained by the Veteran during reserve service training, in conjunction with Diagnostic Code 5257, to show the residual condition of "other impairment" to include instability or subluxation. Another way to interpret this somewhat unusual conjunction of rating codes, however, would be to note that impairment from arthritis is often measured by the resulting limitation of motion. If the limitation of motion is noncompensable under the appropriate Diagnostic Codes (in this case, Diagnostic Codes 5260 and 5261), the adjudicators are instructed to assign a rating of 10 percent for each major joint affected or 20 percent when two or more major joints are affected, and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. In this case, the Veteran's range of left knee motion was so close to normal throughout this time period that a noncompensable rating was the only reasonable option under Diagnostic Codes 5260 and 5261. Because he did not have incapacitating exacerbations involving his left knee, a 10 percent disability rating was the highest possible rating to be assigned under the provisions relating to the evaluation of impairment from arthritis. Given his level of pain and reported impairment of functioning, which is supported by his physician's assessments of the impending need for a total knee replacement, the RO creatively assigned a -16- 20 percent disability rating under the provisions for "other" knee impairment. The Board cannot disagree with the result achieved by this somewhat unconventional but sympathetic rating, as the Veteran's overall left knee impairment as primarily manifested by pain during this time period does seem more nearly analogous to the 20 percent level of disability. Smallwood. However, the Board can perceive no basis for a higher disability rating prior to October 28, 2010. As set forth above, although the Veteran's significant pain is acknowledged, as is the fact that he did indeed have a total knee replacement in December 2011, his objective knee symptomatology simply did not warrant a higher disability rating at any time between March 2006 and October 2010. He did not have significant limitation of left knee motion, even after subtracting twenty or thirty degrees of flexion to take his pain upon end motion into account. Schafrath. His "other impairment" which as noted represents a sympathetic rating on the part of the RO in any case, cannot be characterized as severe. For instance, although the Veteran often complained of swelling in his knee, significant swelling was not observed upon any of the clinical examinations of record. Similarly, although he frequently complained of locking and instability in the knee, when his surgeons observed the interior of his knee during the September 2008 arthroscopic surgery, they noted that the prior ligament grafts were intact. The medical evidence of record for this time period including the VA examination findings do not document instability of the left knee. It was not until June 2010, several months prior to his total knee replacement surgery, that he was noted to have an antalgic gait. Review of the alternative knee rating criteria contained within the rating schedule reveals no other mechanism to achieve a schedular rating as high as 20 percent given the Veteran's objective knee symptomatology prior to the October 2010 joint replacement. The Veteran did not have ankylosis of the left knee. He did not have nonunion or malunion of the tibia or fibula. The diagnostic codes pertaining to these disabilities are the only other schedular diagnostic codes which provide a disability rating greater than 20 percent for knee disabilities. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256 and 5262. -17- With regard to the Veteran's request that he receive a separate disability rating for arthritis and a separate disability rating for instability, The Board observes that the rating currently assigned is for arthritis, as explained above. His complaints of instability are simply not corroborated for the record to the point where a separate compensable disability rating could be reasonably assigned. The medical evidence of record for this time period including the VA examination findings do not document instability of the left knee. Thus, the preponderance of the evidence is against the assignment of a disability rating greater than 20 percent to the service-connected left knee arthritis from March 2006 through October 28, 2010. Evaluation from December L 2011 through September 10, 2012 As noted above, the Veteran underwent a total knee replacement procedure in October 2010. He was given a 100 percent disability rating for purposes of convalescence, and then was given a 100 percent disability rating for a period of a year in accordance with the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5055. Neither the convalescent rating nor the schedular 100 percent rating for the year following the surgery are subject of this appeal. Therefore, the Board will resume review of the Veteran's left knee disability rating as of December 2011, when the RO assigned the minimum schedular disability rating of 30 percent under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5055. The report of the October 2010 surgery itself reflects that there were no complications during surgery or recovery. As discussed above, the VA has not been provided with any post-surgery reports. However, he underwent a second major procedure on his left knee in December 2010, involving manipulating the knee joint and the prosthesis under anesthesia to break up scar tissue. During a February 2011 primary care visit, his treating physician noted slow but normal gait. During range of motion exercises, he had flexion to 90 degrees, but manifested greater flexion during regular activity in the examining room. The examiner noted that the Veteran's movements were unobstructed and smooth. The -18- examiner also noted that the Veteran had "remarkable little" swelling and joint enlargement in comparison to other surgeries she had seen. The Veteran was advised to engage in regular moderate exercise following the knee replacement surgery and scar tissue manipulation. He underwent a VA examination in September 2012, at which time he reported constant pain, giving way, and numbness in the left knee. He was using a cane, a knee brace, and also taking hydrocodone for pain relief. Upon range of motion measurements, the Veteran had motion from 0 to 95 degrees, without objective evidence of painful motion. He was able to perform repetitive motion, with no additional loss of motion after repetition. The examiner identified the Veteran's sole functional loss involving the left knee as being limited motion. There was no pain to palpation, and he demonstrated full muscle strength in the left leg. Upon testing, he had mild anterior instability and mild medial-lateral instability, but no posterior instability in the left knee. He continued to utilize a knee brace and occasionally a cane for walking. Overall, the examiner quantified the severity of the left knee replacement surgery residuals as involving "intermediate degrees of residual weakness, pain or limitation of motion." An X-ray study performed in September 2012 was interpreted as showing interval left total knee arthroplasty, cemented and non-constrained. There was no periarticular lucency to suggest loosening. There was no suprapatellar effusion. There were multiple rounded ossific densities, likely representing intra-articular osteochondral bodies. As set forth above, Diagnostic Code 5055 allows for a rating of 100 percent for one year following implantation of prosthesis. Thereafter, the Code provides for a minimum rating of 30 percent, which is the currently-assigned rating. A 60 percent rating is warranted where there are chronic residuals consisting of severe painful motion or weakness in the affected extremity. The knee may also be rated by analogy using Diagnostic Codes 5256 (ankylosis of the knee), 5261 (limitation of extension) or 5262 (impairment of the tibia and fibula) if they provide for a rating greater than the 30 percent minimum. 38 C.F.R. § 4.71a, Diagnostic Code 5055. In this case, the evidence does not support a disability rating higher than 30 percent for the time period from December 2011 through September 10, 2012. Although he -19- complains of severe pain, it does not appear that he has painful motion to such an extent as to warrant more than a 30 percent disability rating. He does not have weakness in the left leg, does not have ankylosis, limitation of extension, or impairment of the tibia and fibula. Rather, it appears that his bilateral leg strength is full and equal; his prosthesis was inserted smoothly, with good cement, and is non-constrained after the scar tissue was manipulated. He has good motion in the knee, which if evaluated under the provisions of Diagnostic Codes 5260 and 5261 would require the assignment of a noncompensable disability rating. Upon careful review, there is no legal basis for the assignment of a disability rating greater than 30 percent prior to September 2012. The preponderance of the evidence is thus against the Veteran's claim and the appeal must be denied. Extraschedular Consideration Finally, the Board has considered whether referral for an extraschedular evaluation is warranted. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). 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 the service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate a veteran's level of disability and symptomatology and is found inadequate, it must determine whether the veteran'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"). -20- When the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has 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 for completion of the third step, a determination of whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The service-connected left knee disability has been manifested primarily by pain with some limitation of motion. As discussed, the Veteran underwent a total knee replacement. The level of severity of the Veteran's left knee disability is adequately contemplated by the applicable diagnostic criteria. The diagnostic codes pertinent to rating a knee disability rate the knee disability based upon symptoms of limitation of motion, instability or subluxation, ankylosis, and dislocation or removal of knee cartilage. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256 to 5261. There is a Diagnostic Code for rating a total knee replacement. See 38 C.F.R. § 4.71a, Diagnostic Code 5055. The Veteran's left knee disability has been rated under Diagnostic Codes 5003 and 5010, as degenerative arthritis, which includes considerations of whether there is limitation of motion due to pain or other limiting orthopedic factors. Diagnostic Codes 5010-5003, 5260, 5261 incorporate as part of the schedular rating criteria various orthopedic factors including pain that limit motion or function of the knee. See 38 C.F.R. §§ 4.40 , 4.45,4.59; DeLuca. The criteria provide for higher ratings for knee symptoms. Separate ratings are possible for knee symptoms such as instability in addition to a rating for limitation of motion. Diagnostic Code 5055 provides a rating criteria for symptoms due to a total knee replacement and also provides for consideration of Diagnostic Codes 5256, 5261, and 5262. As discussed, the manifestations of the service-connected left knee disability are contemplated by the rating schedule in that the assigned ratings reasonably assess the severity of the overall condition. In this sense, they are not shown to be unusual or exceptional. The rating criteria reasonably describe his disability level and symptomatology and provide for higher ratings for additional or more severe symptoms than currently shown by the evidence. In view of the adequacy of the disability rating assigned under the applicable diagnostic criteria, consideration of -21- the second step under Thun is not for application in this case. Accordingly, the claim will not be referred for extraschedular consideration. The evaluation of the left knee disability for the period of time subsequent to September 2012 is the subject of the remand below. ORDER A disability rating greater than 20 percent for left knee disability from March 2006 through October 28, 2010 is denied. A disability rating greater than 30 percent for left knee disability, post total knee arthroplasty, from December 1, 2011 through September 10, 2012 is denied. REMAND The Board finds that additional development and procedural action are necessary before the claim of entitlement to an increased rating for the left knee disability from September 11, 2012 can be decided on the merits. The most recent medical evidence discussed above is the report of the VA examination in September 2012. This report was also the most recent medical evidence reviewed by RO/AMC adjudicators in the January 2013 Supplemental Statement of the Case. However, the Veteran's virtual VA file now contains medical evidence dated through May 2013, and he continues to receive VA medical care on a regular basis. RO adjudicators have not yet reviewed the newly-added evidence. Additionally, the Board deems that another VA examination is necessary to evaluate the Veteran's current left knee functioning in light of recent notations of malingering on the part of the Veteran which are contained in his post-September 2012 medical records. The RO should conduct a search for any outstanding VA treatment records from the VA Healthcare System showing treatment of the service-connected left knee disability from May 2013. VA has a duty to seek these records. 38 U.S.C.A. §5103A(b)(l). -22- The RO should also contact the Veteran by letter and request that he provide sufficient information and, if necessary, authorization to enable the RO to obtain any pertinent VA or non-VA clinical records that may substantiate his claim for a higher rating for the left knee disability from September 11, 2012. The RO should make an attempt to obtain copies any treatment records from an treatment source identified by the Veteran. Accordingly, the case is REMANDED for the following action: 1. Obtain complete VA medical records from the Central Texas Veterans Health Care System, and all related facilities, reflecting the Veteran's medical care for the left knee disability subsequent to May 2013 for association with his claims file. 2. Contact the Veteran in order to have him identify any VA or non-VA medical records that may substantiate his claim for an increased rating for the left knee disability from September 12, 2012. The letter should request sufficient information to identify the health care providers, and if necessary, signed authorizations, to enable VA to obtain any copies of any additional evidence. If the Veteran adequately identifies the health care providers and provides the completed authorizations, the RO should request legible copies of all pertinent clinical records that have not been previously obtained and incorporate them into the claims file. -23- The letter should invite the Veteran to submit any medical evidence or treatment records in support of the claim. 3. Schedule the Veteran for a VA examination to determine the current severity of the service-connected left knee disability. The Veteran's VA claims folder must be made available to the examiner for review in connection with the examination. The examiner should report the range of motion in the left knee in degrees. The examiner should report whether the left knee disability is manifested by painful motion, weakened movement, excess fatigability, or incoordination. These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any painful motion, weakened movement, excess fatigability, or incoordination. The examiner should report all residuals of the total knee replacement and describe the degree of any residual weakness, pain, or limitation of motion. The examiner should report whether the left knee replacement is manifested by chronic residuals consisting of severe painful motion or weakness in the affected extremity. The examiner should report whether there is lateral subluxation or lateral instability of the left knee, and if present, express an opinion as to the severity of such subluxation or lateral instability (slight, moderate, or severe). The examiner should report whether any functional impairment due to the left knee is severe, moderate or slight. -24- If the examiner(s) are unable to provide the requested information with any degree of medical certainty, the examiner should indicate that. The examiner(s) should set forth the complete rationale underlying any conclusions drawn or opinions expressed, to include, as appropriate, citation to specific evidence in the record, in a legible report. 4. After the development requested above has been completed, the RO should readjudicate the issue of entitlement to a disability rating greater than 30 percent for left knee disability, post total knee arthroplasty, from September 11, 2012, in light of all the evidence of record. If any benefit sought on appeal remains denied, then a fully responsive Supplemental Statement of the Case should be furnished to the Veteran and representative, and they should be afforded a reasonable opportunity for response. The Veteran 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 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). C. L. KRASINSKI Acting Veterans Law Judge, Board of Veterans' Appeals -25-