Citation Nr: 1328280	
Decision Date: 09/05/13    Archive Date: 09/16/13

DOCKET NO.  09-28 986	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, 
South Carolina


THE ISSUES

1.  Entitlement to a rating in excess of 10 percent prior to 
June 16, 2008, for degenerative joint disease of the right 
knee and in excess of 30 percent as of August 1, 2009, for 
degenerative joint disease of the right knee, post total 
right knee replacement. 

2.  Entitlement to a total disability rating based upon 
individual unemployability due to service-connected 
disabilities (TDIU).


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

A.M. Ivory, Counsel



INTRODUCTION

The Veteran had active military service from May 1976 to May 
1982.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a February 2008 rating decision 
issued by the Department of Veterans Affairs (VA) Regional 
Office (RO) in Columbia, South Carolina.

By way of history, the Veteran filed a claim for an 
increased rating for her degenerative joint disease of the 
right knee in June 2007 and an October 2007 rating decision 
denied a rating in excess of 10 percent for such disability.  
Thereafter, additional evidence was received and a December 
2007 rating decision continued the Veteran's 10 percent 
disability rating for her service-connected degenerative 
joint disease of the right knee.  Thereafter, additional 
evidence was again received and the RO issued a rating 
decision in February 2008, which the Veteran appealed.   In 
consideration of  38 C.F.R. § 3.156(b) (2012) (when new and 
material evidence is received prior to the expiration of the 
appeal period, it will be considered as having been filed in 
connection with the claim which was pending at the beginning 
of the appeal period), the Board finds that the Veteran's 
claim for an increased rating for her right knee disability 
has been pending since receipt of her claim in June 2007.  
See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 
2011).

During the pendency of the appeal, a May 2009 rating 
decision granted a temporary evaluation of 100 percent for 
the Veteran's degenerative joint disease of the right knee 
based on surgical treatment necessitating convalescence, 
effective from June 16, 2008, to July 31, 2009, pursuant to  
38 C.F.R. § 4.30.  The May 2009 rating decision granted the 
Veteran a 30 percent rating, effective August 1, 2009.  As 
the claimant will generally be presumed to be seeking the 
maximum benefit allowed by law and regulation, it follows 
that such a claim remains in controversy where less than the 
maximum available benefit is awarded.  AB v. Brown, 6 Vet. 
App. 35, 38   (1993); Hart v. Mansfield, 21 Vet. App. 505 
(2007). Therefore, this issue has been characterized as 
shown on the first page of this decision.

The Board observes that the February 2008 rating decision 
also denied service connection for a left knee disorder, 
which the Veteran timely appealed.  However, in a June 2012 
rating decision, the RO granted service connection for 
degenerative joint disease, status post total knee 
arthroplasty, of the left knee.  As such is a full grant of 
the benefit sought on appeal, this issue is no longer before 
the Board.   

After a careful review of  the Veteran's claims file, 
including her VA examinations, the Board finds that, 
although an appeal was not received on the issue of 
entitlement to TDIU, it is now before the Board because it 
has been reasonably raised during the adjudicatory process 
of the underlying claim and is a component of the instant 
appeal.  See Rice v. Shinseki, 22 Vet. App. 447,454-455 
(2009).  In this regard, the Board is cognizant that, in 
response to a July 2012 letter that referenced her claim for 
service connection for posttraumatic stress disorder (PTSD) 
and indicated that, if she believed that she qualified for a 
100 percent rating based on an inability to secure and 
follow a substantially gainful occupation because of her 
service-connected disability, she should complete and return 
VA Form 21-8940 (Veteran's Application for Increased 
Compensation Based on Individual Unemployability), the 
Veteran indicated in a July 2012 statement that she did not 
believe that such applied to her.  

However, as will be discussed further herein, the issue of 
entitlement to a TDIU has been raised in the context of her 
claim for an increased rating for her right knee disability.  
Specifically, at the Veteran's September 2009 VA 
examination, it was noted that she was not currently 
employed.  Her most recent work was as a schoolteacher, but 
her occupation was affected because she could not move up 
and down stairs, could not sit or stand for long periods of 
time, and had difficulty getting to a sitting position.  As 
a schoolteacher, such was an impossible combination.  
Additionally, the June 2012 VA examiner noted that the 
Veteran's knee conditions impacted her ability to work in 
that she had to quit work because she taught at a private 
school that was not handicap accessible and she could not do 
the job.  Therefore, as the Veteran was previously notified 
that she may file a TDIU claim in connection with her claim 
for service connection for PTSD and the evidence otherwises 
raises the issue of entitlement to a TDIU, the Board has 
taken jurisdiction over it as part and parcel of her claim 
for an increased rating for her right knee disability and, 
as such, the issue is included on the title page. 

The Board notes that, in addition to the paper claims file, 
there is a paperless, electronic (Virtual VA) claims file 
associated with the Veteran's claims.  A review of the 
Virtual VA claims file reveals additional VA treatment 
records dated from February 2000 to April 2012, which were 
considered by the agency of original jurisdiction (AOJ) in 
the April 2012 supplemental statement of the case.

The issue of entitlement to a TDIU is addressed in the 
REMAND portion of the decision below and is REMANDED to the 
RO via the Appeals Management Center (AMC), in Washington, 
D.C.


FINDINGS OF FACT

1.  For the appeal period prior to June 16, 2008, the 
Veteran's degenerative joint disease of the right knee is 
manifested by painful motion with functional loss equal to 
flexion to no worse than 120 degrees and extension to no 
worse than zero degrees, without instability or subluxation, 
ankylosis, cartilage removal, impairment of the tibia or 
fibula, or genu recurvatum.

2.  For the appeal period prior to June 16, 2008, the 
Veteran's degenerative joint disease of the right knee is 
manifested by dislocated semilunar cartilage with locking, 
pain, and effusion.  

3.  For the appeal period since August 1, 2009, the 
Veteran's degenerative joint disease of the right knee, post 
total right knee replacement, is not manifested by chronic 
residuals consisting of severe, painful motion or weakness 
in the affected extremity, ankylosis, limitation of 
extension to 30 degrees or greater, or impairment of the 
tibia and fibula.  




CONCLUSIONS OF LAW

1.  For the appeal period prior to June 16, 2008, the 
criteria for a rating in excess of 10 percent for 
degenerative joint disease of the right knee have not been 
met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 
4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 
5010-5260 (2012).  

2.  For the appeal period prior to June 16, 2008, the 
criteria for a separate 20 percent rating, but no higher, 
for dislocated semilunar cartilage of the right knee have 
been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. 
§§ 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.71a, Diagnostic Code 
5258 (2012).  

3.  For the appeal period since August 1, 2009, the criteria 
for a rating in excess of 30 percent for degenerative joint 
disease of the right knee, post total right knee 
replacement, have not been met. 38 U.S.C.A. §§ 1155 , 5107 
(West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 
4.71a, Diagnostic Code 5010-5055 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and 
implementing regulations impose obligations on VA to provide 
claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 
5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R 
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  Proper VCAA 
notice must inform the claimant of any information and 
evidence not of record (1) that is necessary to substantiate 
the claim; (2) that VA will seek to provide; and (3) that 
the claimant is expected to provide.  38 U.S.C.A. 
§ 5103(a); 38 C.F.R. § 3.159(b)(1).  

In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), 
the United States Court of Appeals for Veterans Claims 
(Court) held that the VCAA notice requirements of 38 
U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all 
five elements of a service connection claim.  Those five 
elements include: 1) Veteran status; 2) existence of a 
disability; 3) a connection between the Veteran's service 
and the disability; 4) degree of disability; and 
5) effective date of the disability.  

In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court 
held that a VCAA notice, as required by 38 U.S.C.A. 
§ 5103(a), must be provided to a claimant before the initial 
unfavorable AOJ decision on the claim for VA benefits.  

In the instant case, the Board finds that VA has satisfied 
its duty to notify under the VCAA.  Specifically, a July 
2007 letter, sent prior to the initial unfavorable decision 
issued in February 2008, and a January 2009 letter advised 
the Veteran of the evidence and information necessary to 
substantiate her increased rating claim as well as her and 
VA's respective responsibilities in obtaining such evidence 
and information.  Additionally, the July 2007 letter advised 
him of the information and evidence necessary to establish 
an effective date in accordance with Dingess/Hartman, supra.  

Relevant to the duty to assist, the Veteran's service 
treatment records as well as post-service VA and private 
treatment records have been obtained and considered.  The 
Veteran has not identified any additional, outstanding 
records that have not been requested or obtained.  

The Veteran was also afforded VA examinations in July 2007, 
September 2009, and June 2012 in conjunction with her 
increased rating claim on appeal.  While the Veteran's 
representative argued in the July 2013 Appellant's Brief 
that her knee had not been examined since her total knee 
replacement surgery in June 2008 and that the VA 
examinations of record are too old to adjudicate her 
increased rating, the Board finds that such is not the case.  
Rather, after her June 2008 surgery, VA examinations 
pertaining to the current nature and severity of her right 
knee disability were conducted in September 2009 and June 
2012.  Neither the Veteran nor her representative have 
alleged that such are inadequate for rating purposes.  
Moreover, the Board finds that the examinations are adequate 
in order to evaluate the Veteran's service-connected right 
knee disability as they include an interview with the 
Veteran, a review of the record, and a full physical 
examination, addressing the relevant rating criteria.  
Therefore, the Board finds that the examination reports of 
record are adequate to adjudicate the Veteran's increased 
rating claim and no further examination is necessary.

Thus, the Board finds that VA has fully satisfied the duty 
to assist.  In the circumstances of this case, additional 
efforts to assist or notify the Veteran in accordance with 
the VCAA would serve no useful purpose.  See Soyini v. 
Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to 
requirements of the law does not dictate an unquestioning, 
blind adherence in the face of overwhelming evidence in 
support of the result in a particular case; such adherence 
would result in unnecessarily imposing additional burdens on 
VA with no benefit flowing to the appellant); Sabonis v. 
Brown, 6 Vet. App. 426, 430 (1994) (remands which would only 
result in unnecessarily imposing additional burdens on VA 
with no benefit flowing to the appellant are to be avoided).  
VA has satisfied its duty to inform and assist the Veteran 
at every stage in this case, at least insofar as any errors 
committed were not harmful to the essential fairness of the 
proceeding.  Therefore, he will not be prejudiced as a 
result of the Board proceeding to the merits of her claim.

II.  Analysis

Disability ratings are determined by applying the criteria 
set forth in the VA Schedule for Rating Disabilities, found 
in 38 C.F.R., Part 4.  The Rating Schedule is primarily a 
guide in the evaluation of disability resulting from all 
types of diseases and injuries encountered as a result of or 
incident to military service. The ratings are intended to 
compensate, as far as can practicably be determined, the 
average impairment of earning capacity resulting from such 
diseases and injuries and their residual conditions in 
civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 

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 
for that rating. Otherwise the lower rating will be 
assigned.  38 C.F.R. § 4.7. All benefit of the doubt will be 
resolved in the Veteran's favor.  38 C.F.R. § 4.3. 

In general, all disabilities, including those arising from a 
single disease entity, are rated separately, and all 
disability ratings are then combined in accordance with 
38 C.F.R. § 4.25.  Pyramiding, the evaluation of the same 
disability, or the same manifestation of a disability, under 
different diagnostic codes, is to be avoided when rating a 
Veteran's service-connected disabilities.  38 C.F.R. § 4.14.  
It is possible for a Veteran to have separate and distinct 
manifestations from the same injury which would permit 
rating under several diagnostic codes, however, the critical 
element in permitting the assignment of several ratings 
under various diagnostic codes is that none of the 
symptomatology for any one of the conditions is duplicative 
or overlapping with the symptomatology of the other 
condition.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 
(1994). 

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 
importance.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  
However, separate ratings may also be assigned for separate 
periods of time based on the facts found.  Hart, supra.  The 
relevant temporal focus for adjudicating an increased rating 
claim is on the evidence concerning the state of the 
disability from the time period one year before the claim 
was filed until VA makes a final decision on the claim. Id.   
See generally 38 U.S.C.A. § 5110(b)(2) .  In this regard, 
the Board notes that an August 1985 rating decision, which 
was issued in September 1985, had granted service connection 
for right knee condition and assigned an initial 10 percent 
rating, effective February 28, 1995.  The Veteran did not 
enter a notice of disagreement with respect to the initially 
assigned rating.  Moreover, no additional evidence referable 
to the Veteran's right ankle was associated with the claims 
file within one year of the issuance of such decision.  38 
C.F.R. § 3.156(b); Bond, supra.  Thereafter, VA received the 
Veteran's current claim for an increased rating for her 
right knee disability on June 29, 2007.
 
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).  
 
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.  
 
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.  In Mitchell v. Shinseki, 25 
Vet. App. 32 (2011), the Court held that, although pain may 
cause a functional loss, "pain itself does not rise to the 
level of functional loss as contemplated by VA regulations 
applicable to the musculoskeletal system." Rather, pain may 
result in functional loss, but only if it limits the ability 
"to perform the normal working movements of the body with 
normal excursion, strength, speed, coordination, or 
endurance."  Id., quoting 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.  In Burton v. 
Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, 
when 38 C.F.R. § 4.59 is raised by the claimant or 
reasonably raised by the record, even in non-arthritis 
contexts, the Board should address its applicability. 

The February 2008 rating decision continued the Veteran's 10 
percent disability rating for her degenerative joint disease 
of the knee, evaluated under 38 C.F.R. 
§ 4.71a, Diagnostic Code 5010-5260.  During the pendency of 
the appeal, a May 2009 rating decision granted a temporary 
evaluation of 100 percent under  38 C.F.R. § 4.30 based on 
surgical treatment necessitating convalescence, effective 
from June 16, 2008, to July 31, 2009.  The May 2009 rating 
decision then granted the Veteran a 30 percent rating 
effective August 1, 2009, under 38 C.F.R. § 4.71a, 
Diagnostic Code 5010-5055.  

In the instant case, for the period prior to June 16, 2008, 
the hyphenated diagnostic code in this case indicates that 
the service-connected disability is considered to be 
traumatic arthritis (5010) associated with a residual 
condition of limitation of flexion (5260).  See 38 C.F.R. § 
4.27.  For the period as of August 1, 2009, the hyphenated 
diagnostic code in this case indicates that the service-
connected disability is considered to be traumatic arthritis 
(5010) associated with a residual condition of knee 
replacement (prosthesis) (5055).   Id.

Diagnostic Code 5010 provides ratings for arthritis due to 
trauma, substantiated by X-ray findings; it states to rate 
it as degenerative arthritis, Diagnostic Code 5003.  Such 
provides that degenerative arthritis established by X-ray 
findings will be rated on the basis of limitation of motion 
under the appropriate diagnostic code(s) for the specific 
joint(s) involved.  38 C.F.R. § 4.71a, Diagnostic Code 5003. 
When, however, the limitation of motion of the specific 
joint(s) involved is noncompensable under the appropriate 
diagnostic code(s), a 10 percent rating is for application 
for each such major joint or group of minor joints affected 
by limitation of motion, to be combined, not added under 
Diagnostic Code 5003. Limitation of motion must be 
objectively confirmed by findings such as swelling, muscle 
spasm or satisfactory evidence of painful motion. In the 
absence of limitation of motion, a 10 percent rating is 
warranted if there is X- ray evidence of involvement of two 
or more major joints or two or more minor joint groups and a 
20 percent rating is authorized if there is X-ray evidence 
of involvement of two or more major joints or two or more 
minor joint groups and there are occasional incapacitating 
exacerbations. 38 C.F.R. § 4.71a , Diagnostic Code 5003.

Normal range of knee motion is 140 degrees of flexion and 
zero degrees of extension. 38 C.F.R. § 4.71 , Plate II. 

Limitation of motion of the knee is contemplated in 38 
C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261.  Diagnostic 
Code 5260 provides for a zero percent rating where flexion 
of the leg is only limited to 60 degrees.  For a 10 percent 
rating, flexion must be limited to 45 degrees.  For a 20 
percent rating is warranted where flexion is limited to 30 
degrees.  A 30 percent rating may be assigned where flexion 
is limited to 15 degrees. 

Diagnostic Code 5261 provides for a zero percent rating 
where extension of the leg is limited to five degrees.  A 10 
percent rating requires extension limited to 10 degrees.  A 
20 percent rating is warranted where extension is limited to 
15 degrees. A 30 percent rating may be assigned where the 
evidence shows extension limited to 20 degrees. For a 40 
percent rating, extension must be limited to 30 degrees.  
And finally, where extension is limited to 45 degrees a 50 
percent rating may be assigned. 

38 C.F.R. § 4.71a, Diagnostic Code 5257 provides for 
assignment of a 10 percent rating when there is slight 
recurrent subluxation or lateral instability, a 20 percent 
rating when there is moderate recurrent subluxation or 
lateral instability, and a 30 percent evaluation for severe 
recurrent subluxation or lateral instability.  
 
VA's General Counsel has stated that when a knee disorder is 
rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257 and an 
appellant also has limitation of knee motion which at least 
meets the criteria for a noncompensable evaluation under 38 
C.F.R.  
§ 4.71a, Diagnostic Code 5260 or 5261, separate evaluations 
may be assigned for arthritis with limitation of motion and 
for instability.  However, General Counsel stated that if an 
appellant does not meet the criteria for a noncompensable 
rating under either Diagnostic Code 5260 or Diagnostic Code 
5261, there is no additional disability for which a separate 
rating for arthritis may be assigned.  VAOPGCPREC 23-97 
(July 1, 1997), published at 62 Fed. Reg. 63,604 (1997).  If 
a rating is assigned under the provisions for other knee 
impairment (38 C.F.R. § 4.71a, Code 5257) a separate 10 
percent rating may be assigned where some limitation of 
motion, albeit noncompensable, has been demonstrated.  See 
VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998).  
 
VA's General Counsel has also stated that separate ratings 
under Diagnostic Code 5260 (limitation of flexion of the 
leg) and Diagnostic Code 5261 (limitation of extension of 
the leg) may be assigned for disability of the same joint. 
VAOPGCPREC 9-04 (September 17, 2004), published at 69 Fed. 
Reg. 59,990 2004).

The rating schedule also provides that dislocation of 
semilunar cartilage, with frequent episodes of "locking," 
pain, and effusion into the joint, warrants a 20 percent 
evaluation. 38 C.F.R. § 4.71a , Diagnostic Code 5258.

Diagnostic Code 5259 provides for the assignment of a 
maximum 10 percent rating based on symptomatic removal of 
the semilunar cartilage.

Under Diagnostic Code 5055, for one year following 
implantation of a knee prosthesis for service-connected knee 
disability, a 100 percent rating is assigned. Thereafter, a 
60 percent rating is assigned when there are chronic 
residuals consisting of severe painful motion or weakness in 
the affected extremity; or, a minimum 30 percent rating is 
assigned.  When there are intermediate degrees of residual 
weakness, pain, or limitation of motion, these intermediate 
residuals are to be rated by analogy under 38 C.F.R. § 
4.71a, Diagnostic Codes 5256, 5261, or 5262.  See 38 C.F.R. 
§ 4.71a, Diagnostic Code 5055.

Private treatment records dated in June 2007 reflect 
complaints of pain, stiffness, and swelling.  Upon physical 
examination, there was no skin abnormalities, swelling, or 
effusion.  The alignment revealed mild valgus.  There was 
tenderness over the lateral joint line on palpation.  Range 
of motion was normal and all ligaments were stable.  
Strength was 5/5 and sensation, vascular, and gait were all 
normal.  X-rays demonstrated severe osteoarthritis of the 
lateral compartment of the right knee.

The Veteran was afforded a VA examination in July 2007 at 
which time she complained of pain all day every day, 
stiffness, locking, instability, and swelling.  She denied 
flare ups.  The Veteran indicated that she had a surgery for 
a meniscus tear and two arthroscopic surgeries to further 
debride cartilage.  She also had many injections in the 
right knee with minimal improvement, multiple rounds of 
physical therapy, and currently took Mobic and Vicodin for 
pain.  The Veteran reported that she was employed as a 
teacher but she could not use the stairs and she had to have 
a special parking spot.  She also has missed work secondary 
to severe knee pain and for medical appointments.  It was 
noted that she used a cane at times to aid in ambulation.  

On examination, the Veteran's range of right knee motion was 
full extension to 0 degrees and flexion was to 120 degrees.  
She had pain throughout the entire range of motion, but she 
was able to repetitively range the right knee without 
changing her range of motion or in her level of pain.  The 
examiner found that the Veteran's range of motion measured 
was not additionally limited following repetitive use on 
examination.  She had significant crepitus in the knee and 
it was diffusely tender to palpation with a slight effusion 
in the knee.  She had exquisite tenderness to palpation over 
her anserine bursa.  There was no significant warmth or 
erythema of the knee.  Since the Veteran had significant 
pain in her knee with minimal manipulation, the McMurray's 
test was not performed; however, her Lachman's test, 
anterior drawer test, and posterior drawer test were normal.  
Her knee was stable to varus and valgus stressing.  Plain 
films revealed moderate to severe degenerative joint disease 
of the right knee.  

Private treatment records dated in October 2007, January 
2008, and June 2008 reflect that, upon examination, there 
was no skin abnormalities, swelling, or effusion.  The 
alignment revealed mild valgus.  There was tenderness over 
the lateral joint line on palpation.  Range of motion was 
normal and all ligaments were stable.  

On June 16, 2008, the Veteran underwent surgery for a total 
knee replacement of the right knee.  In July 2008, it was 
noted that she was attending physical therapy and 
progressing well.  Upon examination, there was mild swelling 
of the right knee and range of motion was from zero to 104 
degrees.  Strength was 4+/5.  Sensation and vascular 
examinations were normal.  X-rays revealed an intact total 
knee prosthesis with good alignment and no evidence of 
loosening or failure.   In August 2008 and September 2008, 
it was again noted that the Veteran was attending physical 
therapy and progressing well.  Upon examination, there was 
mild swelling.  Alignment was normal.  Range of motion was 
zero to 120 degrees.  All ligaments were stable. Strength 
was 5-/5.  Sensation and vascular examinations were normal.   
In November 2008, it was noted that the Veteran had no knee 
pain with walking or range of motion.  Upon examination in 
November 2008 and January 2009, there was no swelling or 
effusion.  Alignment was normal.  Range of motion was zero 
to 120 degrees.  All ligaments were stable.  Strength was 5-
/5.  Sensation and vascular examinations were normal.  A 
March 2009 record reflects that the Veteran was status-post 
right total knee arthroplasty was doing well until that 
morning when she sustained a varus type injury to her right 
knee.  She complained of pain.  Upon examination, alignment 
was normal.  There was tenderness to palpation about the 
lateral cruciate ligament.  Range of motion was from zero to 
120 degrees.  All ligaments were stable.  Strength was 5-/5.  
Sensation and vascular examinations were normal.

In an August 2009 letter, the Veteran's private physician 
stated that she had five surgeries over the past several 
years, including a total knee replacement to the right knee 
last year.     

At the Veteran's September 2009 VA examination, she reported 
pain and swelling but no locking or instability.  It was 
noted that she was not currently employed.  Her most recent 
work was as a schoolteacher, but her occupation was affected 
because she could not move up and down stairs, could not sit 
or stand for long periods of time, and had difficulty 
getting to a sitting position.  As a schoolteacher, such was 
an impossible combination.  It was further observed that the 
Veteran's activities of daily living were affected in that 
she cannot go up and down steps and had to use a ramp at all 
times.  She also had problems walking for more than 50 
yards.  The Veteran did not have flare-ups; rather, she had 
problems all of the time.  She also used a can to help 
steady herself when she is walking.  

Upon examination, the Veteran's range of right knee motion 
was from 0 degrees to 100 degrees with pain throughout the 
range of motion and on palpation in any manner.  There was 
no change in range of motion after repeated motion.  The 
Lachman's test, McMurray test, drawer test, varus test, and 
valgus tests were abnormal bilaterally.  The examiner noted 
that it was very difficult to perform a complete evaluation 
in such respect because of the pain on palpation of the 
knee.  There was swelling and pain of both knees and 
sufficient palpation to adequately perform the test was 
impossible without causing undue pain.  No crepitation was 
detected.  The Veteran was diagnosed with degenerative joint 
disease, total knee replacement, and decreased range of 
motion of the right knee. 

November 2010 and May 2011 private treatment records reflect 
that the Veteran was status post bilateral total knee 
arthroplasty and was doing well.  Upon examination of the 
right knee, the alignment was normal and there was no 
tenderness to palpation.  Range of motion was zero to 115 
degrees.  All ligaments were stable and strength, sensation, 
and vascular examinations were normal.  

At the Veteran's June 2012 VA examination, she reported 
that, since her total knee replacement four years prior, she 
had intermittent issues with her knee but overall her knee 
worked well.  She had 50 percent pain relief after her total 
knee replacement but she had some pain when she walked 
longer distances.  She reported no flare-ups that impacted 
the function of her knee.  The Veteran's range of motion for 
flexion was to 100 degrees and extension was 0 degrees with 
no objective evidence of painful motion.  There was no 
change in range of motion after repetitive use.  The only 
functional loss was less movement than normal and pain on 
movement.  Muscle strength testing was 5/5 on knee flexion 
and extension.  Lachman test, posterior drawer test, and 
medial-lateral instability testing revealed normal stability 
in the right knee.  There was no evidence or history of 
recurrent patellar subluxation/dislocation.

It was observed that the Veteran had previously had a 
meniscal tear and underwent a meniscectomy of both knees.  
She had no residual signs and/or symptoms due to the 
meniscectomy.  The Veteran's total knee replacement 
residuals were described as intermediate degrees of residual 
weakness, pain, or limitation of motion.  She occasionally 
used a wheelchair and a cane.   There was no degenerative or 
traumatic arthritis documented on diagnostic testing.  The 
examiner noted that the Veteran's knee conditions impacted 
her ability to work in that she had to quit work because she 
taught at a private school that was not handicap accessible 
and she could not do the job.

Prior to June 16, 2008

Prior to the Veteran's right knee replacement surgery on 
June 16, 2008, she was assigned a 10 percent disability 
rating under Diagnostic Code 5010-5260.  After a careful 
review of the evidence of record, the Board finds that prior 
to June 16, 2008, the Veteran's right knee disability does 
not warrant a rating in excess of 10 percent based upon 
painful, limited motion.  However, the Board finds that her 
right knee disability does warrant a separate 20 percent 
disability rating under Diagnostic Code 5258 based on 
dislocation of semilunar cartilage, with frequent episodes 
of "locking," pain, and effusion into the joint. 

While Diagnostic Code 5003 provides a maximum 20 percent 
evaluation with X-ray evidence of involvement of 2 or more 
major or minor joints and occasional incapacitating 
episodes, the Veteran's service-connected disability clearly 
affects only one major joint: the right knee.  Thus, an 
increased rating is not warranted under Diagnostic Code 5003 
at anytime during the claims period. 

In order for the Veteran to warrant a higher rating based on 
limitation of motion there needs to be evidence of range of 
motion of flexion limited to 30 degrees (Diagnostic Code 
5260) or extension limited to 10 degrees (Diagnostic Code 
5261).  However, at the Veteran's July 2007 VA examination 
her range of motion for flexion was to 120 degrees and her 
range of motion for extension was to 0 degrees, with pain.  
Her range of motion was not further limited following 
repetitive use. Thus, the Veteran's range of motion was 
normal for extension and range of motion for flexion does 
not meet the criteria for a compensable rating, even in 
contemplation of her complaints of pain throughout range of 
motion testing and upon repetitive motion testing; 
therefore, she does not warrant a higher rating under 
Diagnostic Codes 5260 or 5261.  See DeLuca, Mitchell, supra.  
In this regard, a higher rating is not warranted unless it 
actually results in additional functional loss.  See 
Mitchell, 25 Vet. App. at 38-43; DeLuca, 8 Vet. App. at 204-
7.  Moreover, the evidence of record fails to demonstrate 
that the Veteran has extension of the right knee limited to 
a compensable degree and, therefore, separate ratings for 
limited flexion and extension are not warranted.  See 
VAOPGCPREC 9-04.

With regard to giving proper consideration to the effects of 
pain in assigning a disability rating, as well as the 
provisions of 38 C.F.R. § 4.45 and the holdings in DeLuca 
and Mitchell, supra, the reports from the examination and 
treatment records document consideration of these 
principles, and there is no indication that increased 
compensation would be warranted under these principles as 
such factors do not result in functional loss that more 
nearly approximates flexion or extension limited to a 
compensable degree.  In reaching this conclusion, the Board 
has considered the Veteran's subjective complaints of pain, 
stiffness, locking, swelling, and instability, and objective 
evidence of tenderness, effusion, and crepitus; however, 
such do not result in additional functional loss. 

The Board has also considered whether the Veteran is 
entitled to a separate rating under Diagnostic Code 5257; 
however, the Board finds no objective evidence of 
subluxation or instability in the right knee.  In this 
regard, the Board acknowledges that, at her July 2007 VA 
examination, the Veteran reported that she experiences some 
instability; however, as a layperson, she is not competent 
to diagnose internal instability or subluxation.  In this 
regard, while she is competent to report that her knee feels 
unstable, there is no indication that she possesses the 
requisite knowledge to administer or interpret specialized 
testing that would reveal instability or subluxation.  See 
Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although 
the claimant is competent in certain situations to provide a 
diagnosis of a simple condition such as a broken leg or 
varicose veins, the claimant is not competent to provide 
evidence as to more complex medical questions).  In this 
regard, the VA examiner, a medical professional, found that 
there Lachman's test, anterior drawer test, and posterior 
drawer test were normal and her knee was stable to varus and 
valgus stressing.  Based on the foregoing, the objective 
medical evidence shows that the Veteran's right knee is 
stable without instability or subluxation.  Accordingly, a 
separate rating for instability or subluxation of the right 
knee under Diagnostic Code 5257 is not warranted in this 
case.

Although an increased or separate rating is not warranted 
under Diagnostic Codes 5003, 5257, 5260, or 5261 the Board 
finds that the Veteran's right knee disability most nearly 
approximates the criteria contemplated by Diagnostic Code 
5258 and a separate rating of 20 percent is warranted.  
Under Diagnostic Code 5258, a maximum 20 percent evaluation 
is possible for dislocated semilunar cartilage, with 
frequent episodes of "locking," pain, and effusion. 38 
C.F.R. § 4.71a, Diagnostic Code 5258.  At the July 2007 VA 
examination, the McMurray test could not be administered and 
it was specifically noted that she had "locking", pain, and 
slight effusion.  It was also reported that she had surgery 
for a meniscus tear and cartilage debridement.  Thus, the 
Board finds that the Veteran meets the criteria for a 
separate 20 percent disability rating under Diagnostic Code 
5258.

The Board notes that Diagnostic Code 5258 does not on its 
face contemplate limitation of motion.  In addition, while 
VA's General Counsel has held that Diagnostic Code 5259 
(pertaining to removal of the semilunar cartilage) may 
contemplate limitation of motion, it has never addressed 
whether Diagnostic Code 5258 for dislocation of the 
cartilage similarly encompasses limited motion of the knee.  
In any event, the Board finds that in this case, the 
Veteran's service-connected right knee disability based on 
arthritis and painful, limited motion is not contemplated by 
Diagnostic Code 5258.  Therefore the award of a separate 
evaluation is not deemed to be pyramiding.  See 38 C.F.R. § 
4.14; Esteban, supra.

Additionally, as the evidence of record fails to demonstrate 
ankylosis, impairment of the tibia or fibula, or genu 
recurvatum, the Veteran is not entitled to a higher or 
separate rating under Diagnostic Codes 5256, 5262, or 5263, 
respectively.

In sum, the Board finds that prior to June 16, 2008, the 
Veteran does not warrant an increased rating in excess of 10 
percent based on painful, limited motion with arthritis 
since her range of motion.  However, the Board finds that, 
prior to June 16, 2008, a separate 20 percent rating is 
warranted based on dislocated semilunar cartilage, with 
frequent episodes of "locking," pain, and effusion. 

Since August 1, 2009 

In a May 2009 rating decision, the RO awarded the Veteran a 
temporary 100 percent disability rating based on convalesce 
for a right knee replacement as of June 16, 2008, and 
granted a 30 percent rating, effective August 1, 2009.  The 
Veteran has been rated as 30 percent disabled under 38 
C.F.R. § 4.71a, Diagnostic Code 5010-5055. 

Under Diagnostic Code 5055, for one year following 
implantation of a knee prosthesis for service-connected knee 
disability, a 100 percent rating is assigned.  In this 
regard, the Veteran was granted a 100 percent disability 
rating effective from June 16, 2008 to July 31, 2009.  
Thereafter, she was assigned a 30 percent rating, which is 
the minimum rating after a total knee replacement.  In order 
for the Veteran to warrant a rating in excess of 30 percent, 
her right knee disability must be manifested by chronic 
residuals consisting of severe painful motion or weakness in 
the affected extremity, or result in intermediate degrees of 
residual weakness, pain, or limitation of motion rated by 
analogy to Diagnostic Codes 5256, 5261, or 5262.  However, 
the evidence of record does not approximate any of the 
criteria necessary for a rating in excess of 30 percent.

Initially, the Board finds that the Veteran's right knee 
status post total knee replacement does not result in severe 
painful motion or weakness.  In this regard, private 
treatment records dated within the year after her surgery, 
reflect symptoms to include, mild swelling; range of motion 
from zero to 104, which increased to 120 degrees; strength 
4+ to 5-/5; with normal alignment, stable ligaments, and 
normal sensation and vascular examinations.  Moreover, in 
November 2008, the Veteran had no knee pain with walking or 
range of motion.  Furthermore, while she reported pain and 
swelling at the September 2009 VA examination, her range of 
motion was from zero to 100 degrees with pain and was not 
further limited after repeated motion.  Additionally, while 
Lachman's test, McMurray test, drawer test, varus test, and 
valgus tests were abnormal bilaterally, the examiner noted 
that it was very difficult to perform a complete evaluation 
in such respect because of the pain on palpation of the 
knee.  In this regard, he noted that there was swelling and 
pain of both knees and sufficient palpation to adequately 
perform the test was impossible without causing undue pain.  
However, on examination in November 2010 and May 2011, 
alignment was normal and there was no tenderness to 
palpation.  Range of motion was zero to 115 degrees.  All 
ligaments were stable and strength, sensation, and vascular 
examinations were normal.  

Moreover, on VA examination in June 2012, the examiner 
specifically determined that the Veteran's post right knee 
replacement was manifested by intermediate degrees of 
residual weakness, pain, or limitation of motion.  In 
addition, she reported that since her surgery she had 50 
percent pain relief and only had intermittent issues.  She 
also reported no flare-ups.  Her range of motion was from 0 
to 100 degrees with no pain and the only functional loss was 
less movement than normal and pain on movement.  Therefore, 
the Board finds that the Veteran's right knee symptomatology 
does not result in chronic residuals consisting of severe, 
painful motion or weakness in the affected extremity at any 
time since August 1, 2009.

With regard to giving proper consideration to the effects of 
pain in assigning a disability rating, as well as the 
provisions of 38 C.F.R. § 4.45 and the holdings in DeLuca 
and Mitchell, supra, the reports from the examination and 
treatment records document consideration of these 
principles, and there is no indication that increased 
compensation would be warranted under these principles as 
such factors do not result in functional loss.  In reaching 
this conclusion, the Board has considered that though the 
Veteran reported no pain there was objective evidence of 
pain on motion; however, there is no evidence of additional 
functional loss. 

As indicated previously, when there are intermediate degrees 
of residual weakness, pain or limitation of motion, the knee 
is to be rated by analogy to Diagnostic Codes 5256, 5261 or 
5262. 38 C.F.R. § 4.71a.  Diagnostic Code 5256 applies when 
there is evidence of ankylosis of the knee; however, the 
evidence of record clearly reflects that the Veteran does 
not suffer from ankylosis of the knee as she has been able 
to maintain significant motion of the knee throughout the 
appeal period.  In addition, since her total knee 
replacement, her range of motion for extension has been 
normal (0 degrees) and thus, a higher rating is not 
warranted under Diagnostic Code 5261.  Regarding Diagnostic 
Code 5262, such pertains to impairment of the tibia and 
fibula; however, such an impairment has not been alleged or 
shown in the instant case.  Therefore, Diagnostic Codes 
5256, 5261, and 5262 are not for application in this case.


Other Considerations

For the entire appeal period, the Board has carefully 
reviewed and considered the Veteran's statements regarding 
the severity of her right knee disability.  The Board 
acknowledges that the Veteran, in advancing this appeal, 
believes that the disability on appeal has been more severe 
than the assigned disability rating reflects.  Moreover, the 
Veteran is competent to report observable symptoms.  Layno 
v. Brown, 6 Vet. App. 465 (1994).  In this case, however, 
the competent medical evidence offering detailed specific 
specialized determinations pertinent to the rating criteria 
are the most probative evidence with regard to evaluating 
the pertinent symptoms for the disability on appeal; the 
medical evidence also largely contemplates the Veteran's 
descriptions of symptoms.  The lay testimony has been 
considered together with the probative medical evidence 
clinically evaluating the severity of the pertinent 
disability symptoms.    

The Board further observes that the Veteran has scarring of 
the right knee as a result of her numerous surgeries.  She 
has already been service-connected for such scarring for the 
entire appeal period, evaluated as noncompensably disabling, 
effective June 16, 2008.  In this regard, the Board notes 
that such scarring is asymptomatic and not of a size to 
warrant a compensable rating.  

The Board has considered whether staged ratings under Hart, 
supra, in addition to those already assigned, are 
appropriate for the Veteran's service-connected right knee 
disability; however, the Board finds that her symptomatology 
has been stable throughout the appeal period.  Therefore, 
assigning additional staged ratings for such disability is 
not warranted.  

Additionally, the Board has contemplated whether the case 
should be referred for extra-schedular consideration.  An 
extra-schedular disability rating is warranted if 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 
application of the regular schedular standards would be 
impracticable.  38 C.F.R. § 3.321(b)(1).  

In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court 
explained how the provisions of 38 C.F.R. § 3.321 are 
applied.  Specifically, the Court stated that the 
determination of whether a claimant is entitled to an extra-
schedular rating under 
§ 3.321 is a three-step inquiry.  First, it must be 
determined whether the evidence presents such an exceptional 
disability picture that the available schedular evaluations 
for that service-connected disability are inadequate.  In 
this regard, the Court indicated that there must be a 
comparison between the level of severity and symptomatology 
of the claimant's service-connected disability with the 
established criteria found in the rating schedule for that 
disability.  Under the approach prescribed by VA, if the 
criteria reasonably describe the claimant's disability level 
and symptomatology, then the claimant's disability picture 
is contemplated by the rating schedule, the assigned 
schedular evaluation is, therefore, adequate, and no 
referral is required.

Second, if the schedular evaluation does not contemplate the 
claimant's level of disability and symptomatology and is 
found inadequate, the RO or Board must determine whether the 
claimant's exceptional disability picture exhibits other 
related factors such as "marked interference with 
employment" and "frequent periods of hospitalization."  
Third, when an analysis of the first two steps reveals that 
the rating schedule is inadequate to evaluate a claimant'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 extra-
schedular rating.  Id.

The Board has carefully compared the level of severity and 
symptomatology of the Veteran's service-connected right knee 
disability with the established criteria found in the rating 
schedule.  The Board finds that the Veteran's symptomatology 
is fully addressed by the rating criteria under which such 
disability is rated.  In this regard, the Veteran's 
disability ratings contemplate her functional limitations 
caused by her right knee disability, to include painful, 
limited motion with arthritis and dislocated semilunar 
cartilage prior to June 16, 2008, and all residuals of her 
total knee replacement as of August 1, 2009.  There are no 
additional symptoms of her right knee disability that are 
not addressed by the rating schedule.  Therefore, the Board 
finds that the rating criteria reasonably describe the 
Veteran's disability level and symptomatology of her 
service-connected disability.  As such, the Board finds that 
the rating schedule is adequate to evaluate the Veteran's 
disability picture. Therefore, the Board need not proceed to 
consider the second factor, viz., whether there are 
attendant thereto related factors such as marked 
interference with employment or frequent periods of 
hospitalization.  Consequently, the Board concludes that 
referral of this case for consideration of an extra-
schedular rating is not warranted.  Id; Bagwell v. Brown, 9 
Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 
88, 96 (1996). 

As indicated in the Introduction, in  Rice, supra, the Court 
held that a claim for a TDIU is part of an increased rating 
claim when such claim is expressly raised by the Veteran or 
reasonably raised by the record.  However, as the Veteran's 
TDIU claim is being remanded for additional development, no 
further discussion of such is necessary at this time. 

In sum, the Board finds that a separate rating of 20 percent 
for dislocated semilunar cartilage of the right knee is 
warranted for the appeal period prior to June 16, 2008.  The 
Board, however, finds that the preponderance of the evidence 
is against the Veteran's claim for a rating in excess of 10 
percent for degenerative joint disease of the right knee 
prior to June 16, 2008, and in excess of 30 percent for 
degenerative joint disease of the right knee, post total 
right knee replacement, as of August 1, 2009.  In denying 
such ratings, the Board finds the benefit of the doubt 
doctrine is not applicable.  38 U.S.C.A. § 5107; 38 C.F.R. 
§§ 4.3, 4.7.


ORDER

For the appeal period prior to June 16, 2008, a rating in 
excess of 10 percent for degenerative joint disease of the 
right knee is denied.  

For the appeal period prior to June 16, 2008, a separate 20 
percent rating, but no higher, for dislocated semilunar 
cartilage of the right knee is granted, subject to the laws 
and regulations controlling disbursement of VA monetary 
benefits.  

For the appeal period since August 1, 2009, a rating in 
excess of 30 percent for degenerative joint disease of the 
right knee, post total right knee replacement, is denied.

REMAND

As indicated in the Introduction, when evidence of 
unemployability is submitted during the course of an appeal 
from an assigned disability rating, a claim for a TDIU will 
be considered part and parcel of the claim for benefits for 
the underlying disability.  See Rice, supra.  Here, such 
issue has been raised in the context of her claim for an 
increased rating for her right knee disability.  
Specifically, at the Veteran's September 2009 VA 
examination, it was noted that she was not currently 
employed.  Her most recent work was as a schoolteacher, but 
her occupation was affected because she could not move up 
and down stairs, could not sit or stand for long periods of 
time, and had difficulty getting to a sitting position.  As 
a schoolteacher, such was an impossible combination.  
Additionally, the June 2012 VA examiner noted that the 
Veteran's knee conditions impacted her ability to work in 
that she had to quit work because she taught at a private 
school that was not handicap accessible and she could not do 
the job.  
 
However, the Board finds that further development is 
necessary for a fair adjudication of the Veteran's TDIU 
claim.  In this regard, upon remand, the AOJ should conduct 
all appropriate development, to include providing the 
Veteran with VCAA-compliant notice as to a TDIU, obtaining 
outstanding treatment records, and obtaining an opinion 
regarding the effect the Veteran's service-connected 
disabilities, to include her right knee disability, has on 
her employability.  See Friscia v. Brown, 7 Vet. App. 294, 
297 (1994).   



Accordingly, the case is REMANDED for the following action:

1. The Veteran should be provided with 
proper VCAA notice regarding the evidence 
and information necessary to substantiate 
her TDIU claim.  She should also be 
requested to complete and return VA Form 
21-8940 (Veteran's Application for 
Increased Compensation Based on 
Unemployability). 

2.  The Veteran should be given an 
opportunity to identify any healthcare 
provider who treats her for her service-
connected disabilities.  After securing 
any necessary authorization from her, 
obtain all identified treatment records.  
All reasonable attempts should be made to 
obtain such records.  If any records 
cannot be obtained after reasonable 
efforts have been made, issue a formal 
determination that such records do not 
exist or that further efforts to obtain 
such records would be futile, which should 
be documented in the claims file.  The 
Veteran must be notified of the attempts 
made and why further attempts would be 
futile, and allowed the opportunity to 
provide such records, as provided in 38 
U.S.C.A. 
§ 5103A(b)(2) and 38 C.F.R. § 3.159(e) .

3.  After completing the above, the claims 
file should be forwarded to an appropriate 
medical profession to offer an opinion as 
to whether the Veteran's service-connected 
disabilities render her unemployable.  The 
claims file and a copy of this Remand must 
be made available to the examiner, and the 
examiner shall indicate in the report that 
the claims file was reviewed.  The need 
for an additional examination of the 
Veteran is left to the discretion of the 
examiner selected to write the opinion.

Following a review of the record, the 
examiner should render an opinion as to 
whether the Veteran is unable to secure or 
follow a substantially gainful occupation 
as a result of her service-connected 
disabilities, either singularly or 
jointly, taking into consideration her 
level of education, special training, and 
previous work experience, but not his age 
or any impairment caused by nonservice-
connected disabilities.  In this regard, 
the Veteran is service-connected for PTSD; 
degenerative joint disease, status post 
total knee arthroplasty, of the right 
knee; degenerative joint disease, status 
post total knee arthroplasty, of the left 
knee; and residual scarring of the knees.    

The examiner should specifically consider 
the findings noted at the September 2009 
and June 2012 VA examinations regarding 
the impact her knee conditions have on her 
ability to work as a schoolteacher.  

All opinions offered should be accompanied 
by a rationale.

4.  After completing the above, and any 
other development as may be indicated by 
any response received as a consequence of 
the actions taken in the preceding 
paragraphs, the Veteran's claim should be 
readjudicated based on the entirety of the 
evidence.  If the claim remains denied, 
the Veteran and her representative should 
be issued a supplemental statement of the 
case.  An appropriate period of time 
should be allowed for response.

Thereafter, the case should be returned to the Board for 
further appellate consideration, if otherwise in order.  The 
Board intimates no opinion as to the outcome of this case.  
The Veteran need take no action until so informed.  The 
purpose of this REMAND is to ensure compliance with due 
process considerations.  

The Veteran has the right to submit additional evidence and 
argument on the matter the Board has remanded.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board or 
by the United States Court of Appeals for Veterans Claims 
for additional development or other appropriate action must 
be handled in an expeditious manner.  See 38 U.S.C.A. §§ 
5109B, 7112 (West Supp. 2012).



______________________________________________
A. JAEGER
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs