Citation Nr: 1329053 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 10-05 190 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE 1. Entitlement to an evaluation in excess of 30 percent for left knee disability from February 1, 2007 to February 28, 2008 and from April 1, 2008 to October 22, 2008. 2. Whether the reduction from a 30 percent evaluation to a 10 percent evaluation, effective March 1, 2010, for service-connected left knee disability was proper. 3. Entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from March 1993 to February 1997. These matters come before the Board of Veterans' Appeals (BVA) from rating decisions of the Department of Veterans Affairs (VA) Regional Office, in Milwaukee, Wisconsin (RO). As a matter of background, in a November 2006 rating decision, the RO awarded a temporary total disability rating for convalescence based on surgical treatment involving the left knee from August 22, 2006 to November 30, 2006, and thereafter a 10 percent rating was continued. The Veteran appealed the continuation of the 10 percent evaluation. The assignment of a temporary total rating was extended until January 31, 2007, in a January 2007 rating decision. In a November 2008 rating decision, the Veteran was awarded another temporary total disability rating for convalescence based on surgical treatment involving the left knee from February 29, 2008 to March 31, 2008, which was followed by the 10 percent rating. The RO, in a March 2009 Supplemental Statement of the Case (SSOC), in pertinent part, awarded an increased from 10 to 30 percent disabling for left knee disability, effective from October 22, 2008. The increased rating was implemented in a May 2009 rating decision. In a March 2009 correspondence, the Veteran stated that he was satisfied with the 30 percent evaluation for his left knee disability and withdrew his claim for an increased rating thereafter. Initially, the Board notes that the RO characterized the current matter on appeal as entitlement to an effective date prior to October 22, 2008 for the award of 30 percent rating. However, the Board finds that the Veteran's claim is essentially a claim for an increased rating for the applicable periods prior to October 22, 2008, and the matter has been re-characterized on the first page. It is also noted that on the Veteran's June 2007 substantive appeal, VA Form-9, he indicated that he desired to testify before a member of the Board during a hearing at the RO. As noted above, the Veteran subsequently withdrew his appeal for increased rating as of October 22, 2008, and in a subsequent February 2010, substantive appeal, VA Form-9, he marked that he did not want a Board hearing regarding the increased evaluation prior to October 22, 2008. The Board construes the Veteran's actions on his February 2010 VA Form-9 as withdrawal of his desire for a hearing before a member of the Board. In June 2009, the Veteran filed his claim for TDIU. Based on the evidence obtained during the subsequent development, the RO proposed the reduction of the evaluation from a 30 percent evaluation to a 10 percent evaluation for service-connected left knee disability. In a December 2009 rating decision, the RO denied his claim for entitlement to a total disability rating due to individual unemployability (TDIU) and implemented the reduction of the assigned evaluation from 30 to 10 percent for the Veteran's left knee disability, effective from March 1, 2010. The Board accepts the representative's August 2010 correspondence as a statement in lieu of a formal VA Form-9 following the issuance of a July 2010 Statement of the Case (SOC). The matters are currently on appeal. The Board observes that since the appeal of the reduction claim arises from RO's own initiative to reduce the Veteran's assigned rating, the Veteran's appeal from the December 2009 rating decision does not involve an increased rating claim for service-connected left knee disability. See Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-280 (1992) (the issue on appeal is not whether the veteran is entitled to an increase, but whether the reduction in rating was proper); Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991) ("[t]his is a rating reduction case, not a rating increase case.") Also, the Veterans Appeals Control and Locator System (VACOLS) reflects that the Veteran initiated an appeal to a September 2011 rating decision, which denied increased ratings for left knee and lumbar spine disabilities. The Veteran was issued a June 13, 2013 SOC, but to date, VACOLS does not show that he has submitted a timely substantive appeal on those issues. As such, the matters are not currently before the Board. In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the Veteran's file on the "Virtual VA" system to ensure a complete assessment of the evidence. The issue of 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, DC. FINDINGS OF FACT 1. For the periods from February 1, 2007 to February 28, 2008 and from April 4, 2008 to October 21, 2008, the Veteran's left knee disability was manifested by no more than limitation of extension to 10 degrees with painful motion, tenderness, weakness and crepitus, and with residual of medial meniscus tear. 2. The RO complied with 38 C.F.R. § 3.105 in executing the reduction of the disability rating for the service-connected left knee disability. 3. In the December 2009 rating decision, the RO reduced the evaluation assigned for the service-connected left knee disability from 30 percent to 10 percent, effective on March 1, 2010. 3. The December 2009 rating reduction was based on inadequate examination findings. CONCLUSIONS OF LAW 1. For the periods from February 1, 2007 to February 28, 2008 and from April 4, 2008 to October 21, 2008, the criteria for an evaluation of 20 percent, and not higher, for left knee disability have been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5258, 5260, and 5261 (2012). 2. The reduction of the rating for the service-connected left knee disability from 30 percent to 10 percent, effective March 1, 2010, was not proper and the 30 percent evaluation is restored. 38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5260, 5261 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. VA's Duty to Notify and Assist Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. In the notice, VA will inform the claimant which information and evidence, if any, that the claimant is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (2008); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Notice should also address the rating criteria and effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the case at hand, the record reflects that the originating agency provided the Veteran with the required notice by a letter dated in July 2009. This letter also included notice with respect to the effective-date element of the claim. The claim was subsequently adjudicated by the originating agency in October 2009. In short, the record indicates the Veteran received appropriate notice pursuant to the VCAA. Accordingly, with respect to VCAA notice, there is no prejudice to the Veteran in the Board's proceeding with the issuance of a decision on the merits as to his increased rating claims. Concerning VA's duty to assist, the Board notes that the VA has obtained the Veteran's service treatment records, post-service treatment records, and his testimony and lay statements. The Veteran was afforded VA joint examinations in August 2007 and in October 2008. The examination reports reflect that the examiners interviewed and examined the Veteran, reviewed his claims folder, reviewed his past medical history, documented his current medical conditions, and rendered appropriate diagnosis consistent with the remainder of the evidence of record. Furthermore, the examination report contain sufficient information to rate the Veteran's left knee disability under the appropriate diagnostic criteria for the applicable periods under appeal. See 38 C.F.R. § 4.2; see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In short, the Board has carefully considered the provisions of the VCAA, in light of the record on appeal and, for the reasons expressed above, finds that the development of the Veteran's claims has been consistent with said provisions. The Board is satisfied that any procedural errors in the originating agency's development and consideration of the claims were insignificant and nonprejudicial to the Veteran. The Veteran has been accorded ample opportunity to present evidence and argument in support of his claims. See 38 C.F.R. § 3.103. He has retained the services of a representative, and he declined the opportunity for a personal hearing before a member of the Board. Accordingly, the Board will address the claims on appeal. 2. Increased Rating Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. 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. See 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. See Hart v. Mansfield, 21 Vet. App. 505 (2007) (VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. Painful motion with the joint or particular pathology, which produces a disability, warrants the minimum compensation. DeLuca v. Brown, 8 Vet. App. 202 (1995). Included within 38 C.F.R. § 4.71a are multiple diagnostic codes that evaluate impairment resulting from service-connected knee disorder, including Diagnostic Code 5256 (ankylosis), Diagnostic Code 5257 (other impairment, including recurrent subluxation or lateral instability), Diagnostic Code 5258 (dislocated semilunar cartilage), Diagnostic Code 5259 (symptomatic removal of semilunar cartilage), Diagnostic Code 5260 (limitation of flexion), Diagnostic Code 5261 (limitation of extension), Diagnostic Code 5262 (impairment of the tibia and fibula), and Diagnostic Code 5263 (genu recurvatum). Arthritis evaluations are governed by Diagnostic Code 5003 (which requires x-ray evidence). For the applicable periods under appeal, the Veteran's left knee disability was currently evaluated with a 10 percent rating under Diagnostic Code 5299-5261. Diagnostic Codes 5260 and 5261 govern the rating criteria with regard to limitation of motion of the knee. Under Diagnostic Code 5260, limitation of flexion of the knee warrants a zero percent rating when flexion is limited to 60 degrees; a 10 percent rating when limited to 45 degrees; a 20 percent rating when limited to 30 degrees; and a 30 percent rating when limited to 15 degrees. Under Diagnostic Code 5261, limitation of extension of the leg warrants a zero percent rating when extension is limited to 5 degrees; a 10 percent rating when extension is limited to 10 degrees; a 20 percent rating when limited to 15 degrees; 30 percent when limited to 20 degrees; 40 percent when limited to 30 degrees; and 50 percent when limited to 45 degrees. The regulations define normal range of motion for the leg as zero degrees of extension and 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate I. Under Diagnostic Code 5257, a 10 percent evaluation is assigned for slight recurrent subluxation or lateral instability of the knee. A 20 percent evaluation is assigned for moderate recurrent subluxation or lateral instability of the knee, and a 30 percent evaluation is assigned for severe recurrent subluxation or lateral instability of the knee. See 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2011). 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. Diagnostic Code 5259, Cartilage, Semilunar, Removal, symptomatic, provides for a 10 percent rating. 38 C.F.R. § 4.71a. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). However, pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14. The General Counsel for VA, in a precedent opinion (VAOPGCPREC 23-97) held that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257. General Counsel stated that when a knee disorder is already rated under Diagnostic Code 5257, the Veteran must also have limitation of motion which at least meets the criteria for a noncompensable percent rating under Diagnostic Code 5260 (flexion limited to 60 degrees or less) or 5261 (extension limited to 5 degrees or more) in order to obtain a separate rating for arthritis. Where additional disability is shown, a Veteran rated under Diagnostic Code 5257 can also be compensated under Diagnostic Code 5003 and vice versa. In addition, the VA General Counsel has held that separate ratings may be assigned under Diagnostic Code 5260 and Diagnostic Code 5261 for disability of the same joint. VAOPGCPREC 9-2004 (September 17, 2004). Specifically, where a veteran has both a limitation of flexion and a limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. However, limitation of motion is a relevant consideration under Diagnostic Code 5259 for the symptomatic removal of cartilage because removal of cartilage may result in complications producing loss of motion. VAOGCPREC 9-98 (Aug. 14, 1998). Therefore, separate ratings under Diagnostic Codes 5259 and Diagnostic Codes 5003/5010 are not appropriate because painful motion including locking is already considered under Diagnostic Code 5259. Id. Similarly, separate ratings under Diagnostic Code 5258 and Diagnostic Codes 5003/5010 are not appropriate because Diagnostic Code 5258 also contemplates manifestations of limited motion including locking as a result of dislocated cartilage. It is not expected that all cases will show all the findings specified; however, in all instances it is expected that there will be sufficient findings as to identify the disease and the disability there from, and to coordinate the rating with the identified impairment of function. 38 C.F.R. § 4.21. Where there is a question as to which of two rating 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. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Any reasonable doubt will be resolved in favor of granting the veteran's claim. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. § 3.102. In this case, the Veteran seeks an increased rating for his left knee disability. There are no VA treatment records pertaining to complaints or treatment for the Veteran's left knee disability during the one year prior to submission of his claim for increased rating in August 2006. VA treatment records dated in August 2006 show that the Veteran presented for emergency medical treatment following a slip and fall accident, in which he hyper-extended his left knee and ruptured his left patella tendon, requiring surgical repair. The Veteran was awarded a temporary total rating for convalescence from the surgical procedure effective from August 22, 2006 to January 31, 2007, which was followed by a continuation of a 10 percent rating. The Veteran required further surgical intervention for his left knee disability in February 2008, and he was awarded another temporary total rating for convalescence from the surgical procedure effective from February 29, 2008 to March 31, 2008, which was followed by the continuation of the 10 percent rating until he was assigned a 30 percent evaluation, effective October 22, 2008. The Veteran withdrew his claim for increased rating following the assignment of a 30 percent rating, effective from October 22, 2008. As such, the Board will only address whether the severity of the Veteran's left knee disability warrants an increased evaluation for the periods from February 1, 2007 to February 28, 2008 and from April 1, 2008 to October 22, 2008. The Veteran contends that he has experienced similar symptomatology due to his left knee disability throughout the applicable periods from February 1, 2007 to February 28, 2008 and from April 1, 2008 to October 22, 2008. He feels that his left knee disability warrants an evaluation in excess of 10 percent during both those periods. A January 30, 2007 VA orthopedic clinic treatment note shows that the Veteran was assessed as "doing well" following his surgical procedure and physical therapy, despite his complaints of constant left knee pain. Clinical examination revealed that the Veteran had "excellent" range of motion. There was evidence of quadriceps atrophy, but the Veteran had good strength in his left lower extremity. It was felt that the Veteran had possible chondromalacia in his left knee. A February 26, 2007 VA treatment record shows that the examining physician observed that the Veteran had apparent atrophy in his left quadriceps with markedly reduced strength due to the quadriceps rupture, status post surgical repair. It was noted that the Veteran could bench press up to "200 lbs" with his left leg. The Veteran had full range of motion in his left knee, but there was evidence of marked crepitus. An April 30, 2007 VA treatment note shows that the Veteran continued to complain of left knee pain with weight bearing. He used a knee immobilizer and his strength was assessed as normal. A July 21, 2007 VA orthopedic clinic treatment note shows that the Veteran complained of pain and "snapping" in his left knee. Clinical examination revealed no evidence of instability or tenderness. He had full range of motion in left knee on passive testing and there was evidence of limitation to 10 degrees of extensions due to pain on active testing. It was noted that the Veteran had pain and increased sensitivity along the central incision scar and he received injections for pain relief. In August 2007, the Veteran was afforded a VA joint examination in conjunction with his claim for service connection for right knee disability as secondary to his left knee disability. In this examination report, the examiner recorded the Veteran's reported history and the clinical findings from examination of his left knee. On physical examination of the left knee, the examiner observed that there was no evidence of any muscle weakness. The Veteran had a mild asymmetric gait. There was evidence of a well-healed surgical scar over the anterior left knee, without tenderness. Range of motion testing revealed that the Veteran had extension limited 10 degrees extension and flexion limited to 120 degrees, and there was evidence of painful motion, tenderness and crepitus. There was no evidence of any instability of the left knee. In an October 2007 private medical statement from Dr. R. N. B., he reported that the Veteran had knee pain which limited his use of stairs. Dr. B. noted that the Veteran continued to work and he did not use any assistive devices for walking. Also, October 2007 private treatment notes were submitted from Dr. B., which show that the findings from a private MRI revealed a tear of the left medial meniscus. The Veteran testified before a Decision Review Office at the RO in October 2007. The Veteran reported problems with pain, swelling, weakness and giving way in the left knee, and he complained of difficulty with climbing stairs because of his left knee disability. The Veteran reported that he continued to work full-time, despite his left knee problems. A December 2007 VA treatment records shows that the Veteran presented for treatment for left knee pain and clinical examination revealed range of motion in his left knee was 0 degrees extension to 90 degrees flexion. A January 2008 VA orthopedic clinic record shows that the x-ray film of the Veteran's left knee was unremarkable, but the findings from a MRI revealed a small lateral meniscus tear. Instability testing was negative. The Veteran advised to undergo an arthroscopy for debridement and meniscus repair. In a January 2008 VA medical statement from the Veteran's treating VA physician, it was noted that the Veteran complained of locking and giving away, which were consistent with a medial meniscus tear. On February 29, 2008, the Veteran underwent left knee arthroscopy and partial medial meniscectomy, and he was granted a temporary total disability rating for convalescence through April 1, 2008. A March 13, 2008 VA treatment record noted the Veteran's pre-surgical level of knee pain had improved, but he continued to report some weakness in the left knee. A well-healed incision, without any pain in the incision was noted. Range of motion testing was evaluated as normal in the left knee. The joint line was nontender, and there was no instability noted in the left knee. The Veteran continued to undergo physical therapy to improve muscle strength in his left knee, which you underwent. An April 17, 2008 VA treatment record notes that the Veteran was "doing well" but he still needed physical therapy for his left knee. A September 2, 2008 VA treatment record shows that a left knee exam was reported to be "unremarkable." A September 22, 2008 treatment record shows that the Veteran's left knee was evaluated as stable and nontender, and he had full range of motion. The Veteran underwent VA joint examinations on October 4, 2008 and on October 22, 2008 to evaluate the severity of his left knee disability. The October 4, 2008 VA examination report shows that the Veteran complained of dull pain under his left patella, and he complained of stiffness, swelling and locking in the left knee joint. It was noted that the Veteran still worked as a carpenter. Physical examination revealed findings of a 5 inch scar over the left patella, without evidence of tenderness on palpation. The Veteran had range of motion from zero to 90 degrees, with pain beginning at 80 degrees of flexion. The examiner noted mild swelling in the left knee, but there was no evidence of crepitus, effusion or instability. He had normal strength in the left lower extremity and his gait was considered normal. It was noted that previous x-ray film dated in November 2006 revealed no abnormalities. The Veteran was assessed with chronic patella patellofemoral syndrome of the left knee. The October 22, 2008 VA examination report reveals that the Veteran's left knee disability was manifested by more severe symptomatology, which supported the assignment of a 30 percent evaluation as of the date of the VA examination. Initially, the Veteran has already been awarded a separate a 10 percent evaluation, effective from October 22, 2008, for left knee instability. The Board acknowledges that the Veteran did not appeal the assigned evaluation or effective date from that award in the March 2009 rating decision. However, given the nature of the Veteran's increased rating claim for left knee disability and his complaints instability in the left knee throughout, the Board finds that the issue of whether a separate award for instability in the left knee prior to October 22, 2008 is part and parcel to the current claim on appeal. Based on a review of the evidence of record for the applicable periods under appeal, the Board finds that an evaluation of 20 percent, and no higher, is warranted for left knee disability. Collectively, the evidence of record during this period demonstrates that the Veteran's left knee disability was manifested by limitation of extension to 10 degrees and limitation of flexion to 120 degrees, with evidence of painful motion, tenderness and crepitus. Under Diagnostic Code 5261 for limitation of extension, when considering the Deluca factors, this symptomatology more closely approximates a 20 percent evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5261; see also 38 C.F.R. §§ 4.40, 4.45, and DeLuca, 8 Vet. App. at 202. An evaluation in excess of 20 percent for limitation of extension is not warrant as the evidence does not more closely demonstrates findings of limitation to 20 degrees of extension. See Id. The evidence of record does not demonstrate that the Veteran's left knee disability warrants a compensable separate disability rating for limitation of flexion at any point during the applicable periods under appeal. The Veteran's limitation of flexion is still well beyond the criteria associated with a noncompensable evaluation (flexion limited to 60 degrees), even when considering the Deluca factors, and does not warrant a separate compensable evaluation in this case. See 38 C.F.R. § 4.71a, Diagnostic Code 5260; see also 38 C.F.R. §§ 4.40, 4.45, and DeLuca, 8 Vet. App. at 202. The Board observes that the October 2007 MRI revealed a tear of the left medial meniscus that was manifested by subjective complaints of pain, locking and giving away, despite lack of instability observed on clinical evaluation. In this regard, the Veteran's symptomatology has been considered under Diagnostic Code 5261 as it affected his limitation of extension. The Veteran cannot be award concurrent ratings under Diagnostic Codes 5258 and 5261 as the criteria involve duplicative and overlapping symptomatology. Limitation of motion is a relevant consideration under Diagnostic Code 5258 for the symptomatic dislocated cartilage, because dislocated cartilage may result in complications producing loss of motion. VAOGCPREC 9-98 (Aug. 14, 1998). Consequently, it would be pyramiding to assign ratings under both diagnostic codes in this case. See 38 C.F.R. § 4.14, see also Estaban, 6 Vet. App. at 262. An evaluation of 20 percent, and not higher, based on limitation of extension is warranted during the applicable periods under appeal. At no point during the periods from April 1, 2008 to October 22, 2008 does a review of the evidence of record show that the severity of the Veteran's left knee disability supports an evaluation in excess of 20 percent. In this regard, none of the medical evidence of record demonstrates that the Veteran's left knee disability is manifested by extension limited to 20 degrees or more; flexion limited to 15 degrees; ankylosis of the left knee; or malunion of the tibia and fibula with marked knee disability. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5260, 5261, and 5262. There is no evidence of malunion or ankylosis. Even when considering the factors discussed in the Deluca, the limitation of flexion and extension in the Veteran's left knee is still well beyond the criteria for a 30 percent evaluation (either separately or combined). See 38 C.F.R. § 4.7; see also 38 C.F.R. §§ 4.40, 4.45, 4.59 as applied under DeLuca, 8 Vet. App. at 204-08; 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. At no point, does the medical evidence from this period show that the limitation of motion in the left knee is so severe as to support an evaluation in excess of 20 percent. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. The Board has considered whether the Veteran is entitled to any other separate rating under potentially applicable diagnostic codes, including 5256 (for rating ankylosis), 5262 (for rating impairment of the tibia or fibula), or 5263 (for rating genu recurvatum). Here, there is no evidence of ankylosis, malunion or nonunion of the tibia and fibula, or genu recurvatum. Thus, Diagnostic Codes 5256, 5262, and 5263 do not apply in this case at this time. A compensable rating is also not warranted for instability in the left knee prior to October 22, 2008. The Board acknowledges the Veteran's subjective complaints of instability, locking, giving away, and popping in his left knee throughout the applicable period under appeal. However, there is no objective medical evidence prior to October 22, 2008 that supports the award of a separate compensable evaluation for instability. In this regard, clinical evaluation revealed no objective findings of instability during the August 2007 and October 4, 2008 VA examinations. Also, the January 2008, March 2008, and September 2008 VA treatment records show that the Veteran's knee was considered stable. In sum, the Board finds that the medical evidence of record shows that a 20 percent evaluation, and no higher, is warranted for left knee disability starting for the applicable periods under appeal prior to October 22, 2008. The evidence of record is against a finding in favor of an evaluation in excess of 20 percent at any point during the applicable periods under appeal (from February 1, 2007 to February 28, 2008 and from April 1, 2008 to October 22, 2008. See 38 C.F.R. § 4.71a, Diagnostic Code 5258, 5260, and 5261. Other Considerations The Board has considered whether an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b)(1) is warranted. That provision provides that in exceptional circumstances, where the schedular evaluations are found to be inadequate, the Veteran may be awarded a rating higher than that encompassed by the schedular criteria, as demonstrated by evidence showing that the disability at issue causes marked interference with employment, or has in the past or continues to require frequent periods of hospitalization rendering impractical the use of the regular schedular standards. According to 38 C.F.R. § 4.1, "generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability." The Veteran has not presented any evidence that his service-connected left knee disability have resulted in a unique disability that is not addressed by the rating criteria for loss of motion, as well as a torn meniscus. Pertinently, the Board notes that higher evaluations are available for more severe loss of motion. As his symptomatology is contemplated by the rating schedules, referral for extraschedular consideration is not appropriate here. See Thun v. Peake, 22 Vet. App 111, 115-16 (2008). 3. Propriety of a Rating Reduction In October 2009, on its own initiative, the RO proposed to reduce the 30 percent disability rating for the Veteran's service-connected left knee disability to 10 percent based upon the results of an August 2009 VA examination. The Veteran was given the opportunity to appear for a hearing and to submit additional evidence. He submitted a statement in November 2009, in which he asserted that his condition was not improving, but continues to cause him the same problems. The Veteran did not submit any additional medical evidence regarding the proposed reduction or request a hearing. In the December 2009 rating decision, the RO reduced the disability rating for the service-connected left knee disability from 30 percent to 10 percent. The reduction was effective on March 1, 2010. In the current appeal, the Veteran essentially contends that his service-connected degenerative left knee disability has not improved to warrant the reduction in rating. A veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. See 38 U.S.C.A. § 1155. See also Greyzck v. West, 12 Vet. App. 288, 292 (1999) and cases cited therein. Procedurally, where a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. In addition, the RO must notify the veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. T he veteran is also to be informed that he may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If no additional evidence is received within the 60 day period and no hearing is requested, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the veteran expires. 38 C.F.R. § 3.105(e). VA's General Counsel has held that the provisions of 38 C.F.R. § 3.105(e) do not apply where there is no reduction in the amount of compensation payable. VAOPGCPREC 71-91 (Nov. 1991), see also VAOPGCPREC 29- 97 (Aug. 1997). It reasoned that this regulation is only applicable where there is both a reduction in evaluation and a reduction or discontinuance of compensation payable. In the present case, the reduction was finalized in the December 2009 rating decision and was effective March 1, 2010, more than 60 days from the issuance of the rating decision. It reduced the Veteran's combined disability rating from 70 percent to 50 percent. Thus, the Board finds that the provisions of 38 C.F.R. § 3.105(e) are applicable and were met; therefore, the reduction was procedurally proper. The Board must, however, still consider whether the reduction was factually appropriate based upon the evidence of record. Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. VA benefits recipients, however, may be afforded greater protections under 38 C.F.R. § 3.344(a) and (b), which sets forth the requirements for reduction of ratings in effect for five years or more. The requirements prescribe that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction. These provisions also prohibit a reduction on the basis of a single examination. See Brown v. Brown, 5 Vet. App. 413, 417-18 (1995). However, with respect to other disabilities that are likely to improve (i.e., those in effect for less than five years), re-examinations disclosing improvement in disabilities will warrant a rating reduction. 38 C.F.R. § 3.344(c). It is necessary to ascertain, based upon a review of the entire recorded history of the condition, whether the evidence reflects an actual change in disability and whether examination reports reflecting change are based upon thorough examinations. Also, it must be determined that an improvement in a disability has actually occurred and that such improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. Brown, 5 Vet. App. at 420-421(citing 38 C.F.R. §§ 4.1, 4.2, 4.10 and 4.13); 38 C.F.R. 3.344(c). Here, the prior 30 percent rating for the degenerative joint disease of the Veteran's left knee was in effect for less than five years- October 22, 2008 to March 1, 2010. Thus, the provisions of 38 C.F.R. § 3.344(a) and (b) do not apply in this case. Finally, in determining whether a reduction was proper, the Board must focus upon the evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had actually improved. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). It should be emphasized, however, that such after-the-fact evidence may not be used to justify an improper reduction. In the present case, the Board finds that the report of an August 2009 VA joint examination upon which the RO based the reduction for the Veteran's service-connected left knee disability from 30 percent to 10 percent was inadequate. The August 2009 VA examination report is inadequate because the examiner failed to provide an adequate discussion on whether the Veteran's left knee disability resulted in additional functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). The August 2009 VA examiner stated that he could not express, without resort to mere speculation, additional limitation by pain, fatigue, weakness, or lack of endurance due to repetitive use during or not during a flare-up. The examiner, however, failed to provide an explanation as to why such an opinion would be speculative, especially given the Veteran's competent reports of increased left knee pain with physical activity and difficulty climbing ladders. A medical opinion based on speculation, without supporting data or other rationale, does not provide the required degree of medical certainty. Bloom v. West, 5 Vet. App. 104, 145 (1999); see also, Jones v. Shinseki, 23 Vet App 382 (2010) (holding that, in order to rely upon a statement that an opinion cannot be provided without resort to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record.). In the present case, the August 2009 VA examiner fails to provide any rationale for his statement and the rational for his statement is not apparent from the record. Thus, the Board finds that the examination report is inadequate for rating purposes. In Dofflemyer v. Derwinski, 2 Vet. App. 277, 282 (1992), the United States Court of Appeals for Veterans Claims (Court) held in that the failure to consider and apply the provisions of 38 C.F.R. § 3.344 renders a rating decision void ab initio. In the current appeal, the RO failed to apply the provisions of 38 C.F.R. § 3.344(c) in its reduction of the disability evaluation for the service-connected left knee disability from 30 percent to 10 percent. Accordingly, the December 2009 decision is void ab initio because it was not rendered in accordance with the applicable law and regulations, and the 30 percent rating must be restored from the date of the reduction. 38 U.S.C.A. § 1155; 38 C.F.R. § 3.344(c). ORDER Entitlement to an evaluation of 20 percent, and not higher, for left knee disability from February 1, 2007 to February 28, 2008 and from April 1, 2008 to October 22, 2008, is granted, subject to the regulations government payment of monetary benefits. The December 2009 reduction of the rating for the Veteran's left knee disability from 30 percent to 10 percent was improper, and the 30 percent disability rating is restored, effective March 1, 2010. REMAND Unfortunately, a remand is needed for additional development of the Veteran's TDIU claim prior to adjudication by the Board. Initially, the Board notes that since the Veteran's TDIU claim was last adjudicated by the RO in an October 2010 supplemental statement of the case (SSOC), additional VA treatment records have been associated with the Veteran's paperless claims folder on the Virtual VA system. See 38 C.F.R. § 20.1304(c). Since the Veteran initiated his claim for TDIU in June 2009, a review of the evidence of record reflects that he has been periodically employed and unemployed. For instance, during a June 2009 VA physical therapy treatment session, the Veteran reported that he had lost his job as a carpenter in construction because of his inability to work from knee pain. The VA physical therapist noted that the Veteran's service-connected left knee disability "limited the patient from returning to work." He apparently returned to work by the time of an August 2009 VA examinations, but shortly thereafter, he sustained a back injury at work and exacerbated his service-connected lumbar spine disability and he was unable to work for at least a week. See August 2009 medical statement from his treating VA registered nurse. A May 2010 VA joint examination report shows that the Veteran reported that he was currently not working because he had been laid off; however, the report of a January 2011 VA joint examination shows that the Veteran reported that he was currently working as a carpenter and supervisor, despite his service-connected disabilities. VA treatment records dated in August 2012 and December 2012 show that the Veteran reported that he was no longer able to work because of the severity of his service-connected disabilities. The Veteran's most recent reports that he is unable to work because of his service-connected disabilities suggests that his disabilities have worsened. In addition, it has been over four years since the Veteran was last evaluated by VA to determine whether he is unemployable to his service-connected disabilities. Also, it appears from a review of the record that the Veteran has developed other serious nonservice connected medical conditions, including cervical degenerative arthritis with neurologic involvement. As such, new VA examinations to evaluate the current severity of these disabilities and specifically address the impact (if any) of these disabilities on his employability as opposed to any of his nonservice connected disabilities. Green v. Derwinski, 1 Vet. App. 121 (1991); Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). Accordingly, the case is REMANDED for the following action: 1. In accordance with any applicable policies, the temporary folders created at the RO should be consolidated with the Veteran's claim folder. 2. Schedule the Veteran for VA examinations with an appropriate examiners in order to determine the impact his service-connected disabilities have on his employability. The examiner should be provided a list of the Veteran's service-connected disabilities. As to each of the examinations, the examiners should set forth complete rationales for all findings and conclusions in legible reports. The examiners must discuss the rationales of the opinions, whether favorable or unfavorable, if necessary citing to specific evidence in the file. The claims file, including a copy of this remand, must be made available to the examiners for review of the pertinent medical and other history. Each examiner should opine as to whether it is at least as likely as not that the Veteran's service-connected disabilities, either singularly or jointly, render him unable to secure and follow substantially gainful employment. The examiner must specifically take into account the Veteran's level of education, employment history, and vocational attainment or special training, but not his age or occupational impairment attributable to disabilities that are not service-connected. The term "as likely as not" (at least 50-percent probability) does not mean merely within the realm of medical possibility. Rather, it means that the weight of medical evidence both for and against a conclusion such as causation or aggravation is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided. The claims file must be properly documented regarding any notifications to the Veteran as to any scheduled examination. 3. Thereafter, the RO/AMC should adjudicate the Veteran's claim for entitlement to a TDIU. In the event that the claim is not resolved to the satisfaction of the appellant, he and his representative shall be provided a Supplemental Statement of the Case. An opportunity to respond thereto must be provided. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs