Citation Nr: 1326371 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 08-03 835 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent prior to December 17, 2008, for osteoarthritis of the left knee, and in excess of 30 percent from March 1, 2010, for residuals total knee replacement of the left knee. 2. Entitlement to a disability rating in excess of 10 percent prior to January 17, 2012, for degenerative joint disease of the right knee, and in excess of 30 percent from March 1, 2013, for residuals of right total knee replacement. 3. Entitlement to service connection for degenerative joint disease of the lumbar spine, to include as secondary to the service connected bilateral knee condition. 4. Entitlement to service connection for hypertension, to include as secondary to the service connected bilateral knee condition. 5. Entitlement to service connection for degenerative joint disease of the right and left hips, to include as secondary to the service connected bilateral knee condition. 6. Entitlement to a total disability rating based upon individual unemployability (TDIU), prior to April 27, 2010. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from June 1967 to June 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of April 2007, February 2008, June 2008, August 2009 and March 2012 from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran's claim was remanded in February 2013 for further development. The requested action was taken with respect to the increased rating claims, and the case has since been returned to the Board for adjudication. The Board notes that in a September 2012 rating decision, the Veteran was granted service connection for a total knee replacement of the right knee and was assigned a 100 percent disability rating effective January 17, 2012. The rating decision also assigned a 30 percent disability rating effective March 1, 2013. The temporary total disability rating for a period of convalescence expired April 30, 2013. As such, the increased rating claim for the right knee is as identified on the cover page of this decision. Additionally, the Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (the Court) held that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. Here, the issue of entitlement to a TDIU has been specifically raised by the Veteran. In light of the Court's holding in Rice, the Board considers the claim of entitlement to a TDIU as an issue on appeal. In addition to the paper claims files, the Veteran also has an electronic claims file in Virtual VA and VBMS. The Board has reviewed both the paper and electronic claims files in rendering this decision. The issues of entitlement to service connection for degenerative disc disease of the lumbar spine, hypertension, and degenerative joint disease of the bilateral hips 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. FINDINGS OF FACT 1. Prior to December 2008, the Veteran's left knee disability was manifested by flexion no worse than 95 degrees and extension to 0 degrees, and slight laxity in the left knee joint; there is no objective evidence of ankylosis or meniscal pathology. 2. Prior to January 2012, the Veteran's right knee disability was manifested by flexion no worse than 80 degrees and extension to 0 degrees, and slight laxity in the right knee joint; there is no objective evidence of ankylosis, episodes of locking, effusion. 3. From March 2010, the Veteran's left knee disability was manifested by flexion no worse than 90 degrees and extension to 0 degrees; there is no objective evidence of chronic residuals of a total knee replacement including severe painful motion and weakness, ankylosis, instability, or meniscal pathology. 4. From March 2013, the Veteran's right knee disability was manifested by flexion no worse than 90 degrees and extension to 5 degrees, and chronic residuals of a total knee replacement including severe painful motion and weakness; there is no objective evidence, instability, or meniscal pathology. CONCLUSIONS OF LAW 1. Prior to December 2008, the criteria for a disability rating in excess of 10 percent for degenerative joint disease of the left knee, including an increase in the separate 10 percent rating for left knee laxity, have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5055, 5256, 5257, 5261, 5262 (2012). 2. Prior to January 2012, the criteria for a disability rating in excess of 10 percent for degenerative joint disease of the right knee, including an increase in the separate 10 percent rating for right knee laxity, have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5055, 5256, 5257, 5261, 5262 (2012). 3. From March 2010, the criteria for a disability rating in excess of 30 percent for residuals of a left total knee replacement due to degenerative joint disease of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5055, 5256, 5257, 5261, 5262 (2012). 4. From March 2013, the criteria for a 60 percent disability for residuals of a right total knee replacement due to degenerative joint disease of the right knee have been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5055, 5256, 5257, 5261, 5262 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. 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 Veteran 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 Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claims. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in March 2008 and September 2009 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. These letters informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The letters also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). If any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced Veterans Service Organization and has submitted argument in support of his claims. These arguments have referenced the applicable law and regulations necessary for a grant of an increased rating. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claim and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records (STRs) and VA medical records are in the file. All identified private treatment records have been associated with the Veteran's claims file. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). The RO provided the Veteran appropriate VA examination most recently in June 2012. The VA examination report is thorough and supported by the other treatment evidence of record. The examination report discussed the clinical findings and the Veteran's reported history as necessary to rate the disability under the applicable rating criteria. The examination report also discussed the impact of the disability on the Veteran's daily living. Based on the examination, the absence of evidence of worsening symptomatology since the examination, and the fact there is no rule as to how current an examination must be, the Board concludes the June 2012 examination report in this case is adequate upon which to base a decision. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Given the receipt of SSA records and the subsequent readjudication of the claims, the Board finds that there has been substantial compliance with its February 2013 remand directives regarding the increased rating claims. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 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 Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which the Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where 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, 4.2 (2012); see also Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), however, the Court 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. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The general rating schedules for limitation of motion of the knee are 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5260, a 10 percent disability rating is warranted for flexion limited to 45 degrees. A 20 percent disability rating is assigned for flexion limited to 30 degrees; and a 30 percent disability rating is assigned for flexion limited to 15 degrees. Under Diagnostic Code 5261, a 10 percent disability rating is warranted for extension limited to 10 degrees. A 20 percent disability rating is assigned for extension limited to 15 degrees. A 30 percent disability rating is assigned for extension limited to 20 degrees. A 40 percent disability rating is assigned for extension limited to 30 degrees; and a 50 percent disability rating is assigned for extension limited to 45 degrees. See 38 C.F.R. § 4.71a. In addition, separate ratings may be assigned for compensable limitation of both flexion and extension. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint). Diagnostic Code 5257 provides for the assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability of a knee; a 20 percent rating when there is moderate recurrent subluxation or lateral instability; and a 30 percent evaluation for severe knee impairment with recurrent subluxation or lateral instability. Id. Subluxation of the patella is "incomplete or partial dislocation of the knee cap." Rykhus v. Brown, 6 Vet. App. 354, 358 (1993) (citing Dorland's Illustrated Medical Dictionary at 1241, 1599 (27th edition 1988)). Total knee replacements are rated under Diagnostic Code 5055. Under this code, a 100 percent disability rating applies during the one year following the implantation of a knee prosthesis. Thereafter, the minimum disability rating following a knee replacement is 30 percent. A 60 percent disability rating is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. With intermediate degrees of residual weakness, pain, or limitation of motion, adjudicators rate Diagnostic Code 5055 by analogy to diagnostic codes 5256 (knee ankylosis), 5261 (limitation of leg extension), or 5262 (impairment of the tibia and fibula). The Board observes that the words "slight," "moderate," and "severe" as used in the 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). Diagnostic Code 5258, Cartilage, Semilunar, Dislocated, provides a 20 percent rating for frequent episodes of locking, pain, and effusion. 38 C.F.R. § 4.71a (2012). Diagnostic Code 5259, Cartilage, Semilunar, Removal, symptomatic, provides for a 10 percent rating. 38 C.F.R. § 4.71a (2012). The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). Factual Background and Analysis The Veteran contends that his right and left knee disabilities warrant ratings in excess than those currently assigned. He contends he has functional loss due to severe pain and loss of motion with weakness, fatigability, and lack of endurance. By way of background, service connection for the Veteran's degenerative joint disease of the right knee and osteoarthritis (OA) of the left knee was awarded in an April 2006 rating decision. He was assigned 10 percent ratings for each knee, effective July 2004. The Veteran filed a notice of disagreement as to the ratings assigned, but did not perfect an appeal following the RO's issuance of a Statement of the Case in November 2006. VA received is most recent claim for increase in February 2008. In a November 2008 rating decision, the Veteran was awarded a separate 10 percent for each knee due to laxity. These ratings were effective, February 5, 2008. In a May 2009 rating decision, the RO separately awarded service connection for a Baker's cyst of the right knee. A noncompensable rating was assigned, effective September 2008. In an August 2009 rating decision, the Veteran was awarded a temporary 100 percent rating following a left total knee replacement, effective December 17, 2008, through April 30, 2010. He was assigned a 30 percent rating beginning March 1, 2010. As such, the issue is whether he is entitled to a rating in excess of 10 percent prior to December 17, 2008, and in excess of 30 percent beginning March 1, 2010, for his left knee disability, status-post total left knee replacement. In a March 2012 rating decision, the Veteran was awarded a temporary 100 percent rating following his right total knee replacement, effective January 17, 2012. A 30 percent rating was assigned beginning March 1, 2013. As such, the issue is whether the Veteran is entitled to a rating in excess of 10 percent prior to January 17, 2012, and in excess of 30 percent beginning March 1, 2013, for his right knee disability, status-post total right knee replacement. In a September 2012 rating decision, service connection was awarded for left and right knee post-operative scars. Noncompensable ratings were assigned, effective December 2008 for the left knee, and January 2012 for the right knee. The Veteran has not disagreed with the ratings assigned, nor does the evidence support compensable ratings under either the old or new criteria related to scars/skin disabilities. See generally, 38 C.F.R. § 4.118. His scars have been well-healed, under 39 square centimeters, stable, not painful, do not cause any limitation of motion, etc. As such, the Board will address the musculoskeletal complaints with respect to his bilateral knee disabilities for the varying timeframes on appeal. Following his claim for increase, the Veteran was afforded a VA examination in April 2008, during which he complained of chronic pain in both knees. He advised that he has rest pain in the knees that awakens him at night. He wears braces on both knees, and endorsed occasional swelling and giving way. He denied any locking. He is able to walk two to three blocks with an increase in bilateral knee pain, and is only able to stand for a maximum of 30 minutes. He uses pain medication and analgesics for treatment. At the time of the examination, he was employed during sedentary work, and reporting missing six or seven days of work in the last year due to knee pain. The Veteran reported that when not at work, he is inactive at home, but is independent in his activities of daily living. He does not assist in housework or yard work. He denied any flare-ups of knee pain, but has increased limitation upon repetitive use. During the physical examination, the examiner indicated that the Veteran had a slow, broad-based gait, but without a specific limp on either side. Examination of the left knee showed no effusion, but there was a medial peripatellar scar that was nontender and healed. Range of motion in the left knee was from 0 to 95 degrees. At 30 degrees of flexion, there was 1+ medial and lateral laxity. Anterior drawer and Lachman's testing were negative. Upon palpation of the left knee, there was slight tenderness along the medial joint line and in the popliteal space. Physical examination of the right knee showed small effusion, and a medial peripatellar scar which extended up onto the medial portion of the thigh. Range of motion was pain free from 0 to 110 degrees, and at 30 degrees of flexion, he had 1+ medial laxity. Anterior drawer and Lachman's testing were negative. Upon palpation of the right knee, there was slight tenderness along the medial joint line and in the popliteal space. Upon repetitive motion testing, the Veteran complained of pain in both knees with each cycle of repetitive motion. There was a lot of crepitus appreciated in the left knee along with the patella and joints lines. There was no crepitus appreciated in the right knee. The examiner opined that there was no additional loss of motion, weakness, fatigability, or incoordination following repetitive motion. The examiner diagnosed severe degenerative joint disease of the bilateral knees, worsened by obesity and poorly controlled pain. The Veteran had a left knee replacement in December 2008. In a January 2009 private treatment record, the Veteran's range of motion was from 0 to 125 degrees in the left knee with stable ligamentous testing. The right knee had a varus deformity, crepitation, pain, and discomfort with range of motion from 10 to 115 degrees. The Veteran was afforded a VA examination of the right knee in January 2009 following his request for service connection for a Baker's cyst behind the right knee cap. He reported wearing a brace on the right knee for over a year. He did not describe any specific symptoms from the Baker's cyst. He endorsed left knee pain, with increased limitation upon repetitive use. He denied any incapacitating flare-ups of knee pain, and uses a cane to aid with ambulation. The Veteran's gait had a noticeable limp on the left leg. Physical examination revealed a well-healed, nontender scar on the right knee. It extends from the medial patellar area and then posteriorly along the medial side of the knee to the back of the femur. There was a small effusion appreciated in the right knee. There was tenderness to palpation of the patella, medial joint line, lateral joint line, and medial popliteal area. A small, soft cyst was palpable in the lateral popliteal area. This was completely nontender. The Veteran was pain free from 0 to 90 degrees, and then he suddenly began to have pain and guarding. The examiner indicated that flexion could not be continued past 90 degrees. The right knee was stable to varus and valgus stress, and drawer and Lachman's testing were negative. The examiner then indicated that repetitive motion testing in the "left" knee was done. It appears that the examiner addressed the left knee when he meant to address the right knee. The heading of the physical examination section shows right knee only, and the basis for the examination was with respect to the recurrent right Baker's cyst. As such, the Board is confident that the examiner was referring to the Veteran's right knee repetitive motion testing, which resulted in a range of motion from 0 to 80 degrees. The examiner appreciated a hard, loose body in the superior lateral side of the patella. He endorsed increased pain with repetitive motion, and there was slight patella crepitus. There was no further loss of motion, weakness, fatigability, or incoordination. The examiner diagnosed right knee Baker's cyst directly related to degenerative joint disease of the right knee. No diagnoses or comments were made regarding the Veteran's left knee. In June 2010, the Veteran was diagnosed as having a meniscal tear in the right knee. He eventually underwent a right knee total replacement in January 2012. In March 2011, the Veteran was afforded a VA examination of the knee, during which he reported constant, generalized pain of the left knee. He advised that his left total knee replacement improved his symptoms, but the pain has since worsened. He described a burning sensation under the left knee cap. Regarding his right knee, the Veteran reported generalized pain over the right knee with constant pain and throbbing. The examiner indicated that the Veteran did not have any inflammatory joint disorders or constitutional symptoms. These symptoms occur daily and they increase with throbbing at night. The Veteran advised that he can handle his activities of daily living without difficulty, but has increased pain with walking greater than a half a block or standing longer than 10 minutes. His knee symptoms also increase when there are weather changes. He uses a cane to help with ambulation due to knee pain and wears a right knee brace, even at night. X-rays of the knees from November 2010, show that the Veteran's left knee prosthesis is in a normal position and that he has end stage degenerative joint disease of the right knee. The examiner noted that the Veteran plans on having his right knee replaced. Physical examination revealed an antalgic gait with a quick component on the right. The Veteran has a 20 centimeter anteromedial scar on the left knee that is 1 centimeter wide. There is no depression, pain, tenderness, or limitation of range of motion of the knee based on the scar. The scar is not inflamed, nor is there evidence of keloid formation or edema at the site of the scar. Again, he uses a cane to aid in ambulation. Range of motion testing in the left knee showed extension to 0 degrees and flexion to 110 degrees. The Veteran endorsed subpatellar tenderness throughout the range of motion on the left. The Veteran did not have any additional pain, fatigue, weakness, lack of endurance, or incoordination following three repetitions in the left knee. There was no inflammation, effusion, or edema seen in the left knee. The left knee is stable to varus and valgus strain both in neutral at 30 degrees of flexion. The left knee is also stable to anterior and posterior drawer testing. Lachman's and McMurray's testing on the left knee were both negative. Physical examination of the right knee revealed an 18 centimeter, well-healed surgical scar. It is 1 centimeter wide. There is no depression, pain, tenderness, or limitation of range of motion of the knee based on the scar. The scar is not inflamed, nor is there evidence of keloid formation or edema at the site of the scar. Right knee extension is full to 0 degrees and flexion is to 110 degrees. He endorsed increased pain through the range of motion and following three repetitions. There is no additional weakness, fatigue, lack of endurance, or incoordination following repetition. The right knee was stable to varus and valgus strain, both in neutral and at 30 degrees of flexion. Anterior and posterior drawer testing was normal. There was no current effusion, edema, or overlying inflammation in the right knee joint. The examiner noted that the Veteran had generalized enlargement of the right knee joint caused by the degenerative joint disease and he has a Baker's cyst posteriorly in the right popliteal fossa. The examiner diagnosed the Veteran as having residuals of a total left knee replacement, history of left knee instability, which he did not find on the instant examination, end-stage degenerative joint disease of the right knee, and recurrent right Baker's cyst. Regarding employability the examiner opined that the Veteran is unable to participate in activities that involve standing and walking, but he should be able to participate in sedentary activities. In June 2012, the Veteran underwent another VA examination of the knees, during which the examiner noted a history of degenerative joint disease of the bilateral knees, status-post replacements. The Veteran endorsed pain in the bilateral knees that he described as an ache with occasional stabbing sensation. It is aggravated by long walking or standing. The knees occasional swell. He described his left knee replacement as helping, but he states he does not believe he is doing well with the right knee replacement. Range of motion testing in the right knee showed flexion to 90 degrees, with pain beginning at 90 degrees, and extension ending at 5 degrees. Left knee flexion was to 90 degrees, with pain at 90 degrees, extension is full (to 0 degrees). The examiner noted that the Veteran is able to perform repetitive use testing, and post-test ranges of motion are the same as before (5-90 in the right and 0 to 90 in the left). The examiner specifically found that there is no additional limitation in range of motion of the bilateral knees and legs following repetitive testing. He did, however, find evidence of functional loss/impairment of the knees and lower legs due to less movement than normal (both knees), pain on movement (both knees), and swelling (right knee only). The Veteran's symptoms in the right knee interfere with sitting, standing, and weight bearing. The Veteran does have tenderness to palpation in the right knee only. Muscle strength testing with right knee flexion and extension is 3/5 and 4/5 in the left knee. Joint stability testing was within normal limits in both knees, and there was no evidence of recurrent patellar subluxation/dislocation in either knee. The examiner noted the Veteran's history of bilateral knee replacements. The left knee residual was limited to pain, and the right knee residuals are chronic and consisted of severe painful motion, weakness, severe swelling, pains, and clicking. The examiner indicated that the Veteran does have scars due to his bilateral knee surgeries, but they are not painful or unstable, nor did they have a total area in excess of 39 square centimeters. The examiner noted that the Veteran regularly uses a cane to aid with ambulation. X-ray of the knees shows no evidence of loosening of the right or left total knee replacement. There was fluid present in the joint space of the right knee, and a calcification above the right patella that was present prior to the total knee replacement. He indicated that the Veteran's bilateral knee disabilities impact his ability to work. The Veteran continues to undergo treatment at the VAMC for his bilateral knee complaints. He has complained of chronic bilateral knee pain, soreness, nighttime pain, difficulty standing/walking, and continually adjusting of the knees and legs to be comfortable. In statements to VA, he has contended that since his left knee replacement, he has experienced pain in the entire knee area. He contends this prevents him from doing "any consistent normal daily routines and activities without constantly having to sit, rest, [and] adjust my left knee." He claims to favor his left knee by using his right knee more, and now his right knee has little support. Upon careful review of the evidence of record, the Board finds that the preponderance of the evidence is against awarding increased ratings for the Veteran's bilateral knee disabilities during the timeframes noted above, with the exception of a higher rating for residuals of right knee replacement beginning in January 2012. First, prior to December 2008, forward flexion of the Veteran's left knee disability was, at its worst, to 90 degrees. Prior to January 2012, the Veteran's right knee flexion was to 80 degrees at its worst. In order to warrant a higher rating under Diagnostic Code 5260, the Veteran's right and left knee flexion would have had to be limited to 30 degrees or less. The Veteran's left knee had full extension to 0 degrees prior to December 2008. The Veteran's right knee extension was limited to 10 degrees as shown in a January 2009 private treatment record, but in a VA examination dated that same month, he had a full extension of the right knee to 0 degrees. Additionally treatment records prior to January 2012 show no limitation of extension in the right knee. The Board finds that the VA examination reports, dated prior to and after the private treatment in January 2009, showing full right knee extension to be more probative than the single private treatment record showing limitation of extension in the right knee to 10 degrees. Moreover, the Veteran's complaints in the right knee have included painful motion, difficulty standing and walking for long periods of time, stiffness, and swelling. Prior to January 2012, he did not indicate that he is unable to fully extend his right knee due to his symptoms. As such, separate ratings for limitation of extension in the left knee prior to December 2008 and in the right knee prior to January 2012 are not warranted. As noted above, the Veteran had separate 10 percent ratings for instability of each knee, beginning February 2008. The first and only time there was objective evidence of bilateral knee laxity was during his April 2008 VA examination. At 30 degrees of flexion in each knee, he had 1+ medial laxity. The clinical evidence does not show that the laxity in either knee joint was any more than slight in nature as evidenced by the 1+ identification of the laxity in both knees. Later VA examination reports and treatment records do not show complaints of laxity that would be any more than slight in nature, nor has any examination showed recurrent subluxation or lateral instability of either knee. As such, a higher rating under Diagnostic Code 5257, prior to December 2008 in the left knee and prior to January 2012 in the right knee are not warranted. In sum, prior to December 2008, the Veteran's left knee disability does not warrant ratings in excess of 10 percent each for degenerative joint disease and medial and lateral laxity of the left knee under Diagnostic Codes 5260 and 5257, respectively. Additionally, the evidence of record does not show that prior to January 2012, the Veteran's right knee disability warranted ratings in excess of 10 percent each for degenerative joint disease of the right knee and medial laxity under Diagnostic Codes 5260 and 5257, respectively. Finally, there is no evidence to suggest that the Baker's cyst caused any additional symptomatology that was not already encompassed in the discussion related to limitation of motion and laxity in the right knee joint. As such, a compensable rating for the Baker's cyst is also not for application. The Board also finds that the preponderance of the evidence is against a rating in excess of 30 percent for the left total knee replacement, beginning March 2010. In other words, following the Veteran's 100 temporary total disability rating for a period of convalescence for the left knee replacement, the Veteran's left knee disability has not warranted a rating in excess of 30 percent. As noted above, Diagnostic Code 5055 does not define the word "severe" with respect to residuals of total knee replacements, but the Board's review of the entirety of the evidence does not support a finding of severe symptoms associated with his left knee replacement residuals. According to the medical records and VA examinations, the Veteran's left knee flexion was limited to no worse than 90 degrees. As noted above, the majority of the evidence of record shows full extension in the left knee. Although the VA examiners identified weakness, pain, and stiffness in the left knee joint, they did not describe these left knee symptoms as severe in nature. Indeed, there is evidence that the Veteran's left knee problems improved following the surgery, but the Veteran maintains that it was better for a little while and has since worsened. With respect to left knee, the March 2011 VA examiner noted that the Veteran had pain in the knee that with increasing pain when walking or standing for long periods. X-ray of the left knee joint showed the joint prosthesis was in a normal position. Although the Veteran had painful motion during repetitive testing, he did not have any additional functional impairment or limitation of motion. Stability testing was normal. Similar findings were made regarding the left knee during the June 2012 VA examination, but the examiner noted that the Veteran had some functional loss/impairment in the left knee inasmuch as he experiences less movement than normal and pain on movement. This examiner did not identify the Veteran's left knee replacement residuals as severe in nature. Further, the examiner specifically described left knee has having residual pain only. The Board has also considered whether the Veteran would be entitled to a rating higher than 30 percent under Diagnostic code 5055 for left knee symptoms consisting of intermediate degrees of residual weakness, pain or limitation of motion. Again, VA may then rate the disability by analogy under diagnostic code 5256 (ankylosis of the knee), 5261 (limitation of extension), or 5262 (impairment of the tibia and fibula). With respect to diagnostic code 5256, ankylosis is "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). The Veteran's disability is not analogous to ankylosis because he is able to move his left knee, albeit with a limitation of flexion to 90 degrees. Additionally, he has no limitation of extension or impairment of the tibia or fibula indicated. With respect to right knee, the June 2012 VA examiner found that the Veteran had chronic right knee residuals that consist of severe painful motion, weakness, severe swelling, pain, and clicking. The Board finds that the preponderance of the evidence supports assignment of a 60 percent rating under Diagnostic Code 5055 for severe and chronic residuals in the right knee joint. The Veteran has competently and consistently maintained that his right knee joint has worsened since the total knee replacement in January 2012. The evidence of record reflects chronic complaints such as weakness, swelling, and severe painful motion in the right knee. As such, the criteria for a 60 percent rating are met. The Board finds, however, that the Veteran is not entitled to a rating in excess of 60 percent for his right total knee replacement residuals (beginning in March 2013) as it is the highest rating allowed following the temporary total disability rating. The Board has considered lay statements of record reflecting the Veteran's sincere belief that his bilateral knee disabilities warrant ratings in excess than those currently assigned during the timeframes on appeal. The Board has also considered the Veteran's contentions that he is unable to stand, sit, walk, or move in certain directions due to his significant bilateral knee pain. However, the Board concludes that the greater weight of probative evidence is against awarded disability ratings in excess of 10 percent each for degenerative joint disease of left (prior to December 2009) and right (prior to January 2012) knees; ratings in excess of 10 percent each for laxity of the right and left knees; a compensable rating for right Baker's cyst; and a rating in excess of 30 percent for residuals of left total knee replacement (beginning March 2010). The Board finds that the results of these objective examinations by competent health care providers are the most probative evidence as to whether his knee disabilities are manifested by limitation of flexion less than 30 percent, limitation of extension to 10 degrees or less, lateral instability, or severe post knee replacement residuals, and greatly outweigh the Veteran's own reports of symptoms. The Board has additionally considered functional loss due to pain and weakness that causes additional disability beyond that which is reflected on range of motion measurements. See 38 C.F.R. § 4.40 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board must consider the effects of weakened movement, excess fatigability and incoordination. See 38 C.F.R. § 4.45 (2012). In this case, higher ratings based on functional loss are not warranted. The Veteran has complained of pain, decreased mobility, swelling, tenderness, and difficulty performing occupational and daily tasks due to his bilateral knee disabilities. The Board notes, however, that the 30 percent rating (left) and 60 percent rating (right) already assigned under diagnostic code 5055 contemplates the potential problems associated with a total knee replacement, such as the degree of weakness and painful motion demonstrated here. Additionally, as discussed above, the Veteran has full extension and limitation of flexion to no less than 80 degrees on the right and 90 degrees on the left, and the all of the VA examination reports revealed no additional limitation of motion on repetitive use that would meet the criteria for compensable ratings under diagnostic codes 5260 or 5261 prior to December 2008 on the left and prior to January 2012 on the right. Finally, the Board has considered whether the Veteran would be entitled to a separate rating under Diagnostic Codes 5258 or 5259 during any timeframe on appeal. There is evidence that the Veteran had a meniscal tear in the right knee beginning around June 2010. Although there were episodes of pain, the evidence does not show frequent episodes of "locking" or effusion into the right knee joint required for a 20 percent rating. During the timeframes on appeal, the Veteran did not have any evidence of dislocated or removed knee cartilage in the left knee, nor was any meniscal injury found. The Veteran did not have any removed cartilage in the right knee. Indeed, the Veteran was awarded ratings for residuals of his bilateral total knee replacements, but the symptoms and history in either knee did not warrant a separate rating under Diagnostic Codes 5258 or 5259. Finally, the Board has considered whether the Veteran would be entitled to higher and/or separate ratings under Diagnostic Codes 5256 (ankylosis of the knee joint), 5262 (impairment of the tibia and fibula), and 5263 (genu recurvatum). The evidence of record, however, shows no such symptoms or disabilities in either the right knee or the left knee (as discussed above). As shown above, and as required by Schafrath, 1 Vet. App. at 594, the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran. In this case, the Board finds no provision upon which to assign ratings higher than 10 percent each for limitation of motion and laxity prior to December 2008 for the left knee and prior to January 2012 for the right, nor has the Board found a provision upon which to assign a compensable rating for his right Baker's cyst. Additionally, the Board finds no provision upon which to assign ratings higher than 30 percent for residuals of the left total knee replacement prior to March 2010 or higher than 60 percent for the right total knee replacement from March 2013. Finally, the Board finds that additional staged ratings are inapplicable here. See Hart, 21 Vet. App. at 505. Extraschedular Considerations The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected bilateral knee disabilities are inadequate. A comparison between the level of severity and symptomatology of the Veteran's bilateral knee disabilities with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Specifically, the Veteran primarily reports painful motion, throbbing, swelling, and difficulty walking or standing. As discussed above, the current disability ratings during the differing timeframes on appeal are adequate to fully compensate the Veteran for his pain, limited motion, and other symptoms. In short, the rating criteria reasonably describe the Veteran's disability levels and symptomatology. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER Prior to December 2008, a disability rating in excess of 10 percent for degenerative joint disease of the left knee, including an increase in the separate 10 percent rating for left knee laxity, is denied. Prior to January 2012, a disability rating in excess of 10 percent for degenerative joint disease of the right knee, including an increase in the separate 10 percent rating for right knee laxity or a compensable rating for a Baker's cyst, is denied. From March 2010, a disability rating in excess of 30 percent for residuals of a left total knee replacement due to degenerative joint disease of the left knee is denied. From March 2013, a 60 percent disability for residuals of a right total knee replacement due to degenerative joint disease of the right knee is granted, subject to the regulations governing monetary awards. REMAND Service Connection Upon careful review of the evidence of record, the Board finds that further development is necessary regarding the Veteran's service connection claims for degenerative disc disease of the lumbar spine, degenerative joint disease of the bilateral hips, and hypertension-all to include as secondary to his service-connected bilateral knee disabilities. The Board remanded these claims in February 2013 to obtain thorough opinions both on direct and secondary service connection. The claims file was sent to the June 2012 VA examiner for the supplemental opinions, and these opinions were provided in April 2013. Unfortunately, the Board finds that the opinions related to the Veteran's back disability, bilateral hip disability, and hypertension are inadequate to decide the Veteran's claims. First, the examiner did not adequately discuss whether the Veteran's service-connected bilateral knee disabilities caused or aggravated these claimed disabilities, nor did he provide an adequate rationale for the sparse opinions provided. The Board is obligated by law to ensure that the Agency of Original Jurisdiction (AOJ) complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, the issue must once again be remanded. As such, the Board finds that the Veteran's claim should be again be remanded for a new examination to determine the nature and etiology of his low back disability, bilateral hip disability, and hypertension, and their possible relationship to his bilateral knee disabilities. TDIU Throughout most of the timeframe on appeal, the Veteran has asserted that he is unemployable due to his service-connected disabilities. TDIU was awarded between April 27, 2010, and January 17, 2012, and then he was awarded a temporary total disability rating for convalescence for his right knee. The TDIU was reinstated in March 1, 2013. None of the Veteran's service-connected disabilities are rated as 100 percent disabling. He has contended he was unemployable from around the timeframe that he applied for increased ratings. Even though during part of the appeal period the Veteran has been awarded a TDIU, VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). The Board notes that the receipt of a 100 percent disability evaluation for a service-connected disability or disabilities does not necessarily moot the issue of entitlement to a TDIU. Bradley v. Peake, 22 Vet. App. 280 (2008) (holding that a TDIU rating may still form the basis for assignment of special monthly compensation (SMC ) under 38 U.S.C.A. § 1114(s) ). Therefore, in accordance with Rice, the issue of entitlement to a TDIU must be remanded for appropriate notice and development. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with proper VCAA notice as to the information and evidence needed to substantiate his claim for a TDIU. 2. Obtain all outstanding pertinent treatment records. All records and/or responses received should be associated with the claims file. 3. The RO/AMC should schedule the Veteran for a new examination by someone with the appropriate expertise, who has not previously examined the Veteran (if possible), to determine the nature and etiology of his claimed low back disability, bilateral hip disability, and hypertension. The Veteran's claims file, including any pertinent evidence in his electronic files, should be forwarded to the examiner. The examiner(s) should indicate that he/she reviewed the file in conjunction with the examiner. The examiner(s) is asked to provide the following opinions: a. Is it at least as likely as not (a 50 percent or better probability) that the Veteran's hypertension is etiologically related to his active service or was caused or permanently worsened by his service-connected bilateral knee disability. The examiner should specifically discuss the Veteran contention that his bilateral knee pain has aggravated his hypertension. b. It at least as likely as not (a 50 percent or better probability) that the Veteran's low back is etiologically related to his active service or was caused or permanently worsened by his service-connected bilateral knee disability. The examiner is asked to specifically comment on the Veteran's complaints of in-service back pain with a diagnosis of a bruised back. c. It at least as likely as not (a 50 percent or better probability) that the Veteran's bilateral hip disability is etiologically related to his active service or was caused or permanently worsened by his service-connected bilateral knee disability. d. The examiner is also asked to provide a medical opinion concerning the effects of the Veteran's service-connected disabilities on his occupational functioning. To the extent possible, the examiner is asked to determine the date of the onset of any periods of unemployability. The examiner(s) is asked to provide a complete rationale for any opinions reached. 4. When the development has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is otherwise notified but he has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case 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). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs