Citation Nr: 1324974	
Decision Date: 08/06/13    Archive Date: 08/13/13

DOCKET NO.  06-20 458	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUES

1.  Entitlement to an evaluation in excess of 10 percent for bilateral hearing loss.

2.  Entitlement to an evaluation in excess of 10 percent for left knee strain with synovitis and degenerative joint disease with limitation of extension prior to January 20, 2010, and in excess of 40 percent from January 20, 2010.

3.  Entitlement to an evaluation in excess of 10 percent for left knee strain with synovitis and degenerative joint disease with limitation of flexion prior to January 20, 2012, and a compensable evaluation from January 20, 2012.

4.  Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU).


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


ATTORNEY FOR THE BOARD

A. Shawkey, Counsel


INTRODUCTION

The Veteran served on active duty from October 1968 to October 1970.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from October 2005 and April 2008 rating decisions of the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania.  

With respect to the October 2005 rating decision, the RO continued a 10 percent rating for bilateral hearing loss.  The issue was appealed to the Board and in November 2009, the Board denied an evaluation greater than 10 percent for bilateral hearing loss.  The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court).  In December 2010, the Court granted a Joint Motion for Remand vacating the Board's November 2009 decision and remanding the matter back to the Board.  The Board in turn, in February 2011, remanded the matter to RO for further development.  Specifically, the Board directed that the Veteran be afforded a new and contemporaneous audiological examination in order to assess the current severity of his hearing loss as well as to determine whether he is unable to secure and follow a substantially gainful occupation by reason of his service-connected hearing loss.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  Such an examination was conducted in March 2011.  Thus, there has been substantial compliance with the Board's February 2011 remand directives.  Stegall v. West, 11 Vet. App. 268 (1998).

As far as the April 2008 rating decision, the RO continued a 10 percent rating for left knee strain with synovitis and degenerative joint disease with limitation of extension.  The RO also assigned a separate 10 percent rating for left knee strain with synovitis and degenerative joint disease with limitation of flexion.  In a subsequent rating decision in May 2013, the RO increased the Veteran's rating for left knee strain with synovitis and degenerative joint disease with limitation of extension to 40 percent, effective January 20, 2010, and decreased his 10 percent rating for left knee strain with synovitis and degenerative joint disease with limitation of flexion to 0 percent, effective January 20, 2012.  In this regard, the Board notes that the provisions of 38 C.F.R. § 3.105(e) pertaining to rating reductions are generally not applicable to staged ratings.  In O'Connell v. Nicholson, 21 Vet. App. 89, 93 (2007), the Court explained that the statue governing effective date of reduction of compensation because of a change in physical condition, and regulation requiring 60-day notice of reduction in evaluation of a service-connected disability or employability status which will result in reduction or discontinuance of compensation payments, do not apply in context of the assignment of a staged rating by the Board where the Veteran's disability rating is not reduced, for any period of time, to a level below that which was in effect when he appealed to the Board.  Also, consideration under 38 C.F.R. § 3.344 is not warranted as the 10 percent rating was not in effect for five years.  

The record shows that the Veteran attended informal conferences with a Decision Review Officer in February 2008 and January 2012 in lieu of his requests for formal hearings.

Review of the Veteran's Virtual VA file reveals pertinent records as noted in the facts below.

The issues of entitlement to increased ratings for a left knee disability and for a TDIU as part and parcel of the claims for increased ratings for service-connected left knee disability are being remanded and are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.



FINDING OF FACT

The Veteran's hearing acuity is not shown to have been worse than Level II in the right ear and Level XI in the left ear at any point during the duration of this appeal.


CONCLUSION OF LAW

The criteria for a rating in excess of 10 percent for bilateral hearing loss have not been met at any point during the duration of this appeal.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000 (VCAA)

The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met.  There is no issue as to providing an appropriate application form or completeness of the application.  VA notified the Veteran in July 2005 correspondence of the information and evidence needed to substantiate and complete his claim for entitlement to a higher than 10 percent rating for bilateral hearing loss, to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain.  A number of RO letters, including a letter dated in March 2006, also notified the appellant of how VA determines the disability rating and effective date.  The claim was most recently readjudicated in a May 2013 supplemental statements of the case.  Thus, any timing error as to VCAA notice was cured and rendered nonprejudicial.  Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). 

VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim to include pertinent medical records.  The appellant was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate.  See Washington v. Nicholson, 21 Vet. App. 191 (2007). 

In terms of VA examinations, the Veteran was provided with pertinent VA examinations, to include audiometric examinations.  These examination reports contain sufficient findings with which to properly evaluate the appellant's pending claims for increased ratings and are thus deemed adequate for rating purposes.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  As far as the audiometric examinations, the examination reports discuss the effect of the hearing loss on occupational functioning and daily activities.  See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).  

On review, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication.  38 C.F.R. § 3.159(c).

II.  General Rating Provisions

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.  

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability.  Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994).  However, 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.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

When all the evidence is assembled, the determination must be made as to whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

III.  Analysis

Facts

In December 2003, the RO granted service connection for bilateral hearing loss and assigned a 10 percent rating, effective in May 2003.

In June 2005, the Veteran filed a claim for an increased rating for service-connected bilateral hearing loss, asserting that the disability had worsened.

On the authorized audiological evaluation in August 2005, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
15
55
60
LEFT
80
80
75
75
70

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 8 percent in the left ear.  The Veteran reported that he was unable to hear conversations as a result of his hearing loss, especially when someone was talking to him from his left side.  The examiner concluded that the results remained unchanged from the last audiogram performed in 2003 and that the Veteran had moderately severe high frequency hearing loss in the right ear and severe sensorineural hearing loss in the left ear. 

In an October 2005 private medical report, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
15
55
60
LEFT
65
85
75
80
75

Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 0 percent in the left ear.  The Veteran's physician opined, based upon audiometric testing, that the Veteran had non serviceable hearing in the left ear and that a hearing aid would not help.  The physician also noted that the Veteran had severe high tone hearing loss in the right ear.  The private physician concluded that the right ear had normal hearing from 250 to 2000 Hertz with moderate sensorineural hearing loss from 3000 to 8000 Hertz, and the left ear had severe to profound sensorineural hearing loss with very poor word recognition ability and the loss was longstanding. 

On the authorized audiological evaluation in July 2006, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
15
60
55
LEFT
90
80
70
75
70

Speech audiometry revealed speech recognition ability of 84 percent in the right ear and 4 percent in the left ear.  The Veteran reported that as a result of his hearing loss, he must turn to his right side in order to understand conversations.  The examiner concluded that these results indicated unchanged hearing since the Veteran's last audiogram in 2005.  The examiner also noted that the Veteran had a predominantly moderately severe high frequency sensorineural hearing loss in the right ear and severe sensorineural hearing loss in the left ear. 

On the authorized audiological evaluation in March 2008, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
10
25
60
75
LEFT
105
105
105
105
105

Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 0 percent in the left ear.  The Veteran's reported that his main complaint is his very poor hearing on his left side and the situations of greatest difficulty included when the speaker is on the Veteran's left side.  An otoscopic examination revealed an occluded canal on the left and emittance testing confirmed this with a normal volume but flat response.  The examiner concluded that the Veteran's hearing was within normal to borderline normal limits through 2000 Hertz with moderately severe to severe sensorineural hearing loss on the right side and there was profound potentially mixed loss on the left side.  The examiner determined that this test should not be used for rating purposes due to excessive cerumen in the left ear. 

In an April 2008 VA outpatient treatment report, a hearing aid evaluation was conducted and the VA audiologist noted that a recent audiometric testing revealed mild sloping to severe sensorineural hearing loss above1000 Hertz in the right ear and in the left ear there were no responses, however, ear canal was completely occluded.  The audiologist noted that previous audiometric testing indicated a severe rising to moderately severe sensorineural hearing loss with no word recognition in the left ear.  The Veteran was counseled as to hearing loss and amplification and impressions were made for bilateral BICROS BTE aids.  His prognosis was "good".  

On file are statements dated in January 2011 from the Veteran's daughter and neighbor who said that they can only talk to him if they are on the right side of him due to his hearing loss.  His daughter spoke of her disappointment in not letting her daughter sleep over at the Veteran's house for fear that he will not be able to hear her.  His neighbor said the Veteran tends to shout when talking on the cell phone because he can't hear how loud he is talking.  

On the authorized audiological evaluation in March 2011, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
25
60
75
LEFT
85
80
80
75
70

Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 0 percent in the left ear.  The Veteran reported difficulty hearing while riding as a passenger of the car because he cannot hear the driver's voice and said he has to turn his head to the right side in order to hear people talking.  He also said he has trouble hearing in noise such as the mall, and has to turn up the volume on the television.  He reported difficulty locating the direction of sound.  He also reported that he suffers from a left-sided ringing tinnitus which has become worse and is annoying.  The examiner diagnosed the Veteran as having a moderately severe to severe high frequency sensorineural hearing loss from 3000 to 8000 Hertz in the right ear and a moderately severe to profound sensorineural hearing loss in the left ear.  He opined that individuals with the Veteran's degree of hearing loss function well in many occupational settings, although he would have difficulty with certain types of communications, for example when he is not face to face or when there is a significant amount of background noise.  He went on to state that reasonable accommodations can generally be made in most occupational settings.  He noted that the Veteran had been issued Bi-CROS hearing aids in June 2008, but had not returned to the office since.  The examiner said when the Veteran was successfully fitted with amplification and with adequate accommodations, he should do well in the workplace.  He remarked that often times there are federally mandated regulations which will allow the Veteran to function appropriately even with his type and degree of hearing loss.  He noted that his opinion only reflected the Veteran's hearing loss disability, not any other disabilities.

Law and Discussion

The severity of a hearing loss disability is determined by applying the criteria set forth at 38 C.F.R. § 4.885 (2012).  Under these criteria, evaluations of bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000, and 4,000 cycles per second.  See 38 C.F.R. § 4.85 (2012).

To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels from level I for essentially normal acuity through level XI for profound deafness.  38 C.F.R. § 4.85 (2012).  To evaluate an individual's level of disability, Table VI is used to assign a Roman numeral designation for hearing impairment based on a combination of the percent of speech discrimination and the pure tone threshold average.  38 C.F.R. § 4.85(b) (2012). Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment for each ear.  38 C.F.R. § 4.85(e) (2012).

If the puretone threshold in each of the specified frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, an evaluation can be based either on Table VI or Table VIa, whichever results in a higher evaluation.  38 C.F.R. § 4.86(a) (2012).

When the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment will be chosen from either Table VI or Table VIa, whichever results in the higher numeral, and that numeral will then be elevated to the next higher Roman numeral.  38 C.F.R. § 4.86(b) (2012).

The assignment of a disability rating for hearing loss is a "mechanical" process of comparing the audiometric evaluation to the numeric designations in the rating schedule.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1993).

VA audiology examination findings in August 2005 revealed that the average pure tone threshold at 1,000, 2,000, 3,000, and 4,000 Hertz was 35 decibels in the right ear and 75 decibels in the left ear.  Speech recognition ability was 96 percent in the right ear and 8 percent in the left ear.  Under Table VI, the audiological findings correspond to a level I hearing in the right ear and level XI hearing in the left ear.  38 C.F.R. § 4.85, Table VI (2012).  Under Table VII, these levels yield a 10 percent evaluation.  38 C.F.R. § 4.85, Table VII.

Private audiology examination findings in October 2005 revealed that the average pure tone threshold at 1,000, 2,000, 3,000, and 4,000 Hertz was 36 decibels in the right ear and 79 decibels in the left ear.  Speech recognition ability was 88 percent in the right ear and 0 percent in the left ear.  Under Table VI, the audiological findings correspond to a level II hearing in the right ear and level XI hearing in the left ear.  38 C.F.R. § 4.85, Table VI (2012).  Under Table VII, these levels yield a 10 percent evaluation.  38 C.F.R. § 4.85, Table VII.

VA audiology examination findings in July 2006 revealed that the average pure tone threshold at 1,000, 2,000, 3,000, and 4,000 Hertz was 35 decibels in the right ear and 74 decibels in the left ear.  Speech recognition ability was 84 percent in the right ear and 4 percent in the left ear.  Under Table VI, the audiological findings correspond to a level II hearing in the right ear and level XI hearing in the left ear.  38 C.F.R. § 4.85, Table VI (2012).  Under Table VII, these levels yield a 10 percent evaluation.  38 C.F.R. § 4.85, Table VII.

VA audiology examination findings in March 2008 revealed that the average pure tone threshold at 1,000, 2,000, 3,000, and 4,000 Hertz was 43 decibels in the right ear and 105 decibels in the left ear.  Speech recognition ability was 88 percent in the right ear and 0 percent in the left ear.  Under Table VI, the audiological findings correspond to a level II hearing in the right ear and level XI hearing in the left ear.  38 C.F.R. § 4.85, Table VI (2012).  Under Table VII, these levels yield a 10 percent evaluation.  38 C.F.R. § 4.85, Table VII.

Most recently, in March 2011, VA audiology examination findings revealed that the average pure tone threshold at 1,000, 2,000, 3,000, and 4,000 Hertz was 44 decibels in the right ear and 69 decibels in the left ear.  Speech recognition ability was 100 percent in the right ear and 0 percent in the left ear.  Under Table VI, the audiological findings correspond to a level I hearing in the right ear and level XI hearing in the left ear.  38 C.F.R. § 4.85, Table VI (2012).  Under Table VII, these levels yield a 10 percent evaluation.  38 C.F.R. § 4.85, Table VII.

Consideration has been given to section 4.86 for exceptional patterns of hearing impairment.  While 38 C.F.R. § 4.86(a) is applicable to the findings from all of the audiological examinations with respect to the Veteran's left ear only, the Roman numeral designation under Table VIA was found to either be the same as or less than the Roman numeral designation under Table VI.  Thus, the Roman numeral designations under Table VI have been applied since applying Table VIA (for the left ear) would not be more advantageous to the Veteran's rating.

As noted above, the ratings for disability compensation for hearing loss are determined by the mechanical application of the criteria in Table VI and Table VII. See Lendenmann, 3 Vet. App. at 349.  There is no room for discretion herein. The evidence, as it stands, indicates the Veteran's service-connected bilateral hearing loss warrants no more than a 10 percent evaluation throughout the appeal period.  As such, the Board cannot assign an evaluation in excess of 10 percent.  In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision.

The above determination is based upon consideration of applicable rating provisions.  As noted, these provisions include consideration of the adverse affects of the Veteran's hearing loss disability on his ability to function under the ordinary conditions of daily life, including employment.  See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.   Moreover, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.  Martinak v. Nicholson, 21 Vet. App. 447 (2007).

In terms of daily life, the VA examination reports specifically addresses the effects of the Veteran's hearing impairment on his daily life.  Martinak, supra.  These reports, in addition to statements from the Veteran's daughter and neighbor, are consistent in showing that the Veteran has difficulty hearing conversations, particularly when someone is on his left side.  They also show that he has to turn up the volume on his television and has difficulty hearing in noisy places such as the mall.  As far as employment, the March 2011 VA examiner opined that individuals with the Veteran's degree of hearing loss function well in many occupational settings, although he would have difficulty with certain types of communications, for example when he is not face to face or when there is a significant amount of background noise.  He stated that reasonable accommodations can generally be made in most occupational settings.  He also noted that when the Veteran was successfully fitted with amplification and with adequate accommodations, he should do well in the workplace.  Such effects do not take the Veteran's case outside the norm as to warrant consideration of any higher evaluation on an extra-schedular basis.  See 38 C.F.R. § 3.321(b)(1) (2012).  The symptoms of this disability have been accurately reflected by the schedular criteria.  Without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating is not warranted.  See Thun v. Peake, 22 Vet. App. 111, 115-6 (2008).

Also, the evidence does not reflect that the Veteran's bilateral hearing loss causes unemployability.  38 C.F.R. § 4.16; Rice v. Shinseki, 22 Vet. App. 447, 453 (2009).  Rather, to reiterate, the VA examiner in March 2011 opined that individuals with the Veteran's degree of hearing loss function well in many occupational settings, although he would have difficulty with certain types of communications, for example when he is not face to face or when there is a significant amount of background noise.  He went on to state that reasonable accommodations can generally be made in most occupational settings.  



ORDER

Entitlement to an evaluation in excess of 10 percent for bilateral hearing loss is denied.


REMAND

Increased Ratings for Left Knee Disability

After reviewing the evidence in its entirety, the Board finds that additional development is necessary before the Board can properly assess the severity of the Veteran's left knee disability for the periods in question.  38 U.S.C.A. § 5103(d).  As reflected on the title page of this decision and remand, the ratings with respect to the Veteran's left knee disability have been staged; that is, different ratings have been assigned for distinct periods of time.  Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999).  

In terms of the last VA examination in January 2012, the examiner reported that pain was noted throughout range of motion, but it is not clear at what point in terms of degrees pain commenced with range of motion.  Also, the record shows that the Veteran has been receiving knee injections for several years.  Accordingly, further medication clarification is warranted with respect to the effect that the Veteran's knee injections have on his knee function.  In this regard, the Veteran reported at a VA primary care clinic outpatient visit in November 2010 that his left knee was causing him severe pain and he could hardly walk anymore.  He explained that he gets knee injections, but that they wear off by the next injection.  He added that he was avoiding orthopedics because he did not like hospitals and was nervous about having a total knee replacement, but that given his current functional limitations, he was thinking about a replacement more and more.  A more recent VA outpatient record on file, dated in February 2013, shows that the Veteran continues to receive knee injections and is also still considering surgery.  Thus, in order to attain a more accurate assessment of the severity of the Veteran's left knee disability, a medical opinion would be helpful that clarifies how the knee injections affect the Veteran's left knee and the duration of such affect. 

Lastly, an October 2012 VA orthopedic outpatient clinic record shows that the Veteran obtained a second opinion from Rothman Institute where it was determined that he did not need a total knee replacement at that time.  This opinion is not on file and should be obtained.  In this regard, the only records from Rothman Institute on file are dated in 2009.  38 U.S.C.A. § 5103A(b).  

TDIU

The Board finds that consideration of a TDIU as it pertains to the Veteran's pending appeal involving higher ratings for his service-connected left knee disability has been raised by the record and warrants consideration.  In this regard, the Board noted in a February 2011 remand of the issue of entitlement to a disability rating in excess of 10 percent for bilateral hearing loss, that while a claim for a TDIU had been adjudicated by the RO as a separate freestanding claim in August 2006, in light of the recent case of Rice v. Shinseki, 22 Vet. app. 447 (2009), entitlement to TDIU was properly considered as part of the determination of the appropriate disability ratings on appeal rather than as a separate claim.  The Board went on to explain that the claim for a TDIU, as due to the Veteran's service-connected bilateral hearing loss, had been raised by the record and, as discussed above, warranted consideration.  

In terms of the Veteran's left knee disability, there is evidence on file that suggests that he has not worked since 2001, in part, due to his right knee disability.  See July 2003 VA note and July 2004 VA examination report.  Moreover, given the evidence of current left knee disability, the Veteran's claim for the highest ratings possible and the evidence of unemployability, the record during the appeal period raises a claim for a TDIU under Rice.  See also Roberson v. Principi, 251 F. 3d 1378 (Fed. Cir. 2001). 

As the issue of entitlement to a TDIU has been raised but was not considered by the RO, the case must be returned to the RO for initial consideration of this aspect of the claim.

The Board also notes that it is permissible to find that an extraschedular rating is not warranted without first deciding a claim for a TDIU because the question of whether there was marked interference with employment need not necessarily be reached in considering whether an extraschedular rating is warranted and, in any event, the issues of TDIU and extraschedular consideration are not necessarily inextricably intertwined because they contain different standards regarding employment and employability.  Kellar v. Brown, 6 Vet. App. 157, 162 (1994); Stanton v. Brown, 5 Vet. App. 563, 564-70 (1993) (issue of extraschedular rating under § 3.321(b)(1) is separate from that of a total disability rating based on individual unemployability).

Accordingly, the case is REMANDED for the following action:

1.  The RO/AMC should, with the assistance of the Veteran as needed, attempt to obtain pertinent medical records from Rothman Institute, to include a second opinion that was rendered in 2012 on the necessity of left knee surgery.  He should also be asked to identify approximate dates and locations of any other relevant private treatment that he may have had.  Release forms, to the extent needed should be solicited.  

Any attempt to obtain outstanding records should be documented in the claims file.  If any records request is unsuccessful, the Veteran and his representative should be notified of such fact and given an opportunity to respond.  


2.  Schedule the Veteran for a VA orthopedic examination to assess the severity of his service-connected left knee disability.  The claims file and a complete copy of this REMAND must be made available to and reviewed by the examiner in conjunction with the examination.  The VA examination report should indicate that this has been accomplished.  All necessary studies and tests should be conducted. 

The examiner should identify any and all residual manifestations found to be associated with the Veteran's service-connected left knee disability and fully describe the extent and severity of those manifestations. 

The examiner should specifically address the following: 

a) Report the Veteran's ranges of motion of his left knee in degrees, and state the point (in degrees) at which any pain is demonstrated.

b) Comment on whether and to what extent there is incoordination, weakened movement, or excess fatigability on use of the left knee, including during flare-ups.  Specifically, indicate whether there is likely to be any limitation of motion due:  to (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. 

These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain; or during flare-ups.

c) Provide an opinion as to whether pain could significantly limit functional ability, including limitation of motion, during flare-ups or when the left knee is used repeatedly over a period of time.  This determination should also, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups. 

All limitation of function, including due to pain on use, must be identified.  If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report.

d) Provide an opinion as to the affect that the Veteran's knee injections have on his knee disability and take this into consideration when providing the examination findings, to include range of motion findings.

e) Determine whether the Veteran has any favorable or unfavorable ankylosis of the left knee.

f) State whether there is objective evidence of lateral instability or subluxation of the Veteran's left knee, and if so, the degree (i.e., slight, moderate, severe) of such instability and/or subluxation. 

g) The examiner should additionally provide an opinion with respect to whether the Veteran's service-connected knee disability renders him unable to secure or follow a substantially gainful occupation.  Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by nonservice-connected disabilities are not to be considered. 

The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions.  In providing this report, the examiner should specifically address the Veteran's lay contentions regarding his left knee symptoms.

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

4.  Finally, readjudicate the Veteran's claims for increased ratings for his left knee disability and the claim for a TDIU, which was part of his claim for increased ratings for his service-connected left knee disability.  If any benefit sought remains denied, the case should be returned to the Board after compliance with requisite appellate procedures.

The appellant and his representative have the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate 

action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




______________________________________________
CHERYL MASON
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs