Citation Nr: 1331955 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 07-13 480A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for a left knee disability, status post left total knee arthroplasty (TKA). 2. Entitlement to an initial increased disability evaluation for the residuals of a right elbow fracture with neurological impairment, to include an initial compensable evaluation prior to March 18, 2011, and an evaluation in excess of 50 percent as of March 18, 2011. 3. Entitlement to an initial increased disability evaluation for the residuals of a left elbow fracture with neurological impairment, to include an initial compensable evaluation prior to March 18, 2011, and an evaluation in excess of 40 percent as of March 18, 2011. 4. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from September 1972 to November 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. These issues were previously remanded by the Board in January 2011 for additional development. The Veteran was afforded a hearing before the undersigned Veterans Law Judge at the RO in Los Angeles, California in January 2010. A written transcript of this hearing has been prepared and incorporated into the evidence of record. In the January 2011 Board remand, entitlement to service connection for varicose veins in the legs were referred to the Agency of Original Jurisdiction (AOJ) for consideration. There is no indication that any action has been taken concerning this issue. As such, this issue is again REFERRED to the AOJ for appropriate action. The Veteran also indicated in a July 2012 statement that he was seeking entitlement to service connection for neuropathy of the lower extremities, bilaterally, as secondary to his now service-connected lumbar spine disability. This issue has not yet been adjudicated, and it too is REFERRED to the AOJ for appropriate action. During the pendency of this claim, service connection for a lumbar spine disability was granted in an October 2012 rating decision, effective as of August 5, 2005 - the date of receipt of the Veteran's original claim. Since this grant constituted a full grant of the benefits sought on appeal, this claim is no longer in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). The Veteran's evaluation for a right elbow disability was also increased to 50 percent and the evaluation for his left elbow disability was increased to 40 percent, both effective as of March 18, 2011. However, as these increased evaluations did not constitute a full grant of the benefits sought on appeal, these issues remain in appellate status. See id. The record also contains evidence of occupational impairment stemming from the Veteran's service-connected disabilities. In Roberson v. Principi, 251 F.3d 1378, 1384 (2001), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court) held that once a claimant: (1) submits evidence of medical disability, (2) makes a claim for the highest possible rating for the disability, and (3) submits evidence of unemployability due to the disability, an informal claim is raised under 38 C.F.R. § 3.155(a) for a total disability rating based on individual unemployability (TDIU). And as the U. S. Court of Appeals for Veterans Claims (Court/CAVC) more recently explained in Rice v. Shinseki, 22 Vet. App. 447 (2009), if the Board determines the derivative TDIU claim requires further development before being adjudicated, the appropriate disposition is to remand the TDIU claim. Absent representation by a private attorney, remands to the RO are via the Appeals Management Center (AMC) in Washington, DC. VA's Office of General Counsel also has indicated that remanding the derivative TDIU claim does not preclude the Board from going ahead and deciding the claim for a higher rating for the disability that formed the basis of the TDIU claim. See VAOPGCPREC 6-96 (Aug. 16, 1996) and VAOGCPREC 12-2001 (July 6, 2001). In addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the documents in said file reveals that they are duplicative of the physical evidence in the paper claims file. The issues of entitlement to increased disability evaluations for the residuals of bilateral elbow fractures with neurological impairment, and entitlement to TDIU benefits, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's left knee disability, status post left TKA, has been manifested by looseness requiring a brace throughout the pendency of the appeal. 2. The Veteran's left knee disability, status post left TKA, has not been manifested by severe painful motion or weakness, ankylosis, flexion limited to 45 degrees or more, or extension limited to 10 degrees or more at any time during the pendency of this claim. 3. The Veteran's scarring of the left knee is not deep, does not result in limited motion, does not cover an area of 144 square inches or more, is stable, is nontender and does not result in limited function. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to a disability evaluation of 40 percent for a left knee disability have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5055, 5256, 5260-62 (2012). 2. The criteria for establishing entitlement to a disability evaluation in excess of 40 percent for a left knee disability at any time during the pendency of this claim have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5055, 5256, 5260-62 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Notice was provided to the Veteran in letters dated May 2005, January 2006 and June 2008. For an increased disability rating claim, VA is required to provide the Veteran with generic notice - that is, the type of evidence needed to substantiate the claim. This includes evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The information provided to the Veteran has satisfied the notice requirements, in that he has been informed of a need to show a worsening of his disability, he has been provided with specific information on how a higher evaluation for a knee disability is determined and he was notified as to how an effective date is assigned. While all necessary notice was not provided to the Veteran until after the initial adjudication of his claim, the claim was subsequently readjudicated, no prejudice has been alleged, and none is apparent from the record. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA obtained the Veteran's service treatment records. Also, the Veteran received VA medical examinations in June 2005, February 2006 and March 2011, and VA has obtained these records as well as the records of the Veteran's outpatient treatment with VA. Significantly, neither the Veteran nor his representative has identified any additional existing evidence that is necessary for a fair adjudication of the claim that has not yet been obtained. Additionally, the Board finds there has been substantial compliance with its January 2011 remand directives. The Board notes that the Court has held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand). The Appeals Management Center (AMC) provided the Veteran with an opportunity to identify any additional medical treatment and he was scheduled for a new medical examination. The AMC later issued a rating decision and a Supplemental Statement of the Case (SSOC). Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). As already noted, in January 2010, the Veteran was provided an opportunity to set forth his contentions during a hearing before the undersigned Veterans Law Judge. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that a Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the undersigned noted the issues on appeal and solicited information regarding the nature of his symptomatology as well as the functional impact the claimed disabilities have on his daily life and employment. The Veteran was advised of the type of evidence that could be submitted to further substantiate the claims. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, in light of the testimony offered by the Veteran, his claim was subsequently remanded in an attempt to obtain any additional evidence that was not already of record at the time of the January 2010 hearing. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Relevant Laws and Regulations Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2011). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). See also 38 C.F.R. §§ 4.1, 4.2 (2011). As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court discussed the applicability of 38 C.F.R. §§ 4.40 and 4.45 to examinations of joint motion. 38 C.F.R. § 4.40 listed several factors to consider in evaluating joints including inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss due to pain was a consideration, as well as weakness, which was an important consideration in limitation of motion. 38 C.F.R. § 4.40 (2012). As regards the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal; (b) more movement than normal; (c) weakened movement; (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; (f) pain on movement, swelling, deformity or atrophy of disuse; instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are related considerations. 38 C.F.R. § 4.45 (2012). As is the case here, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Facts and Analysis The Veteran contends that he is entitled to an evaluation in excess of 30 percent for his service-connected left TKA (hereinafter "a left knee disability"). For historical purposes, the Veteran was originally granted service connection for a left knee disability in a February 1977 rating decision. A disability evaluation of 20 percent was assigned under Diagnostic Code 5257-5259, effective as of November 12, 1976. The Veteran's disability evaluation was subsequently increased to 30 percent in a January 2000 rating decision, effective as of November 8, 1999, and then to 100 percent in a March 2004 rating decision, effective as of January 14, 2004. His disability evaluation was then continued at 30 percent, effective as of March 1, 2005. In April 2005, VA received a claim from the Veteran seeking a higher evaluation for his service-connected left knee disability. This claim was denied in an April 2006 rating decision. A timely notice of disagreement was received from the Veteran in May 2006, but the 30 percent evaluation was confirmed in a May 2007 statement of the case. The Veteran appealed this decision to the Board in May 2007. The record demonstrates that the Veteran underwent a left knee TKA on January 15, 2004. He was assigned a 100 percent disability evaluation as of this time, with his evaluation reduced to 30 percent as of March 1, 2005. According to a May 2005 VA treatment record, the Veteran was experiencing a sensation of instability in his left knee. He noted that he felt stable with his current brace, but he described hearing a "clunking" sound with ambulation and range of motion. Examination revealed mild ligamentous laxity and quadriceps atrophy. Range of motion testing revealed flexion to 120 degrees and extension to 0 degrees and crepitation with motion. There was no varus or valgus instability. It was concluded that the Veteran was status post left TKA with continued left knee pain and feelings of instability. There was also a mild decrease in range of motion and strength, as well as swelling and pain with weight bearing activities graded as a 7 to 8 out of 10. The Veteran was afforded a VA examination of the left knee in June 2005. The Veteran described shooting pain into the knee and down to the feet. He had also been given a knee brace because according to the Veteran, the left knee replacement had become somewhat loose. There was currently evidence of some swelling of the knee, and the Veteran reported some instability with a sensation of the knee moving around. A new knee scar was noted that was slightly hyperpigmented compared to the rest. There was no tenderness, disfigurement, ulceration, keloid formation or soft tissue defect. The scar was 21 centimeters (cm) in length. An older scar was slightly hypopigmented with no tenderness, disfigurement, instability or keloid formation. This scar was 19 cm in length. Examination of the knee joint itself revealed flexion to 125 degrees and extension to 0 degrees, with pain at the extremes of motion. There was no evidence of pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. Drawer testing was noted to be negative bilaterally, as well as McMurray testing, although there was a certain amount of popping sensation evident in the left knee. An X-ray was interpreted to reveal the femoral and tibial prostheses to be intact and normal in position, and the patella was intact as well. It was determined that the Veteran had a history of a total knee replacement with no definite abnormalities. The examiner diagnosed the Veteran as status post-left knee arthroplasty with residual of loosening of the prosthesis and effusion and limited range of motion. The Veteran reported that he had missed quite a bit of work because of this problem and the examiner concluded that it did significantly limit his activities of daily living. The Veteran also noted that he could not walk for prolonged periods of time because of his apparent loosening of the prosthesis. An additional VA examination was performed in February 2006. The Veteran complained of weakness, stiffness and swelling in his left knee. These symptoms were noted to have improved following his 2004 TKA. The Veteran indicated that pain was elicited with physical activity and walking and that he could not function with or without medication. The Veteran denied any current treatment for his left knee and his functional impairment was noted to be an inability to run, jog or walk for prolonged periods of time. The Veteran reported that he previously worked in contracting but that he left this field due to knee pain. He denied any regular employment since his January 2004 TKA. Examination revealed four scars on the left knee measuring 17 by 1 cm, 11 by 1 cm, 6 by 1 cm and 5 by 1 cm. The scars were all level and nontender with no disfigurement, ulceration, adherence, instability, inflammation, edema, tissue loss, keloid formation, hypo-or hyperpigmentation or abnormal texture. The Veteran's gait was antalgic, favoring the left leg, and he wore a left knee brace. There was guarding of movement with slight tenderness to palpation. There was also crepitus. Range of motion testing revealed flexion to 120 degrees and extension to -5 degrees with pain at the limits. There was slight instability of the anterior and posterior cruciate ligaments with a positive Drawer sign. There was also valgus on the left and a valgus strain on the left, which was within normal limits. McMurray testing was negative. X-ray testing revealed joint replacement with no definite abnormalities. The Veteran was diagnosed with left knee TKA associated with left knee medial meniscectomy and ligament repair. A February 2006 VA treatment record reflects that the Veteran was wearing left knee braces. Range of motion testing performed in April 2006 revealed left knee flexion to 190 degrees and left knee extension to 0 degrees. According to a May 2006 VA physical rehabilitation note, the Veteran had left knee instability and a history of 5 prior knee surgeries. The Veteran was noted to have multiple well-healed surgical incisions. He was using a knee sleeve with medial and lateral hinges and there was an audible and palpable "clunking" with passive range of motion and varus and valgus stress. Range of motion was found to be extension to 0 degrees and flexion to 100 degrees. It was noted that the evidence of instability was suspicious for component loosening, although ligamentous laxity was a possible explanation. A subsequent record from May 2006 reflects that the Veteran worked a part-time job and was disabled because of his left knee. According to a July 2006 VA orthopedic surgery consultation note, the Veteran was being seen for reevaluation of his left TKA. The Veteran complained of instability occasionally, but overall, he was very happy with the result. He denied experiencing any pain. He endorsed occasional swelling and he wore a brace that controlled the instability. It was noted that the knee had never buckled or caused any fall and that the Veteran just had the sensation that it was unstable. There were 120 degrees of flexion and 0 degrees of extension with no effusion at the time of the consultation. Lachmans and anterior drawer testing were both negative and there was no varus or valgus laxity. There was also no patella irritability and the incision was noted to be well-healed. X-rays revealed no signs of loosening and the prosthesis was noted to be in good position. Revision surgery was not recommended at this time, and the Veteran also expressed that he did not desire revisional surgery, noting that he was very happy with his current outcome. According to a March 2007 record, the Veteran had knee extension to 80 degrees. It is unclear which knee was being discussed. The Veteran was seen in the emergency room for his left knee in October 2007. It was noted that he was experiencing left knee erythema, swelling and tenderness. A follow-up record from two days later notes improvement in erythema with no improvement in pain or swelling. An X-ray again revealed evidence of a left total knee replacement. The prostheses were noted to be in place with no evidence of loosening or complication. A small suprapatellar joint effusion was again noted but the adjacent soft tissue structures were within normal limits. A January 2008 record reflects that the Veteran was still complaining of left knee pain, as well as "popping" and instability. A February 2008 VA therapy consultation note indicates that range of motion of the lower extremities was within normal limits and his strength was a 4 out of 5. An October 2008 VA outpatient treatment record also notes multiple well-healed scars on the left knee and an August 2009 record reflects that range of motion testing of the lower extremities was within normal limits. The Veteran was again afforded a VA examination of the left knee in March 2011. It was noted that he wore a neoprene brace and a Don-Joy type brace on the left knee. The Veteran reported a number of symptoms involving the left knee, including deformity, giving way, instability, stiffness, weakness, incoordination, decreased speed of joint motion and numbness around the lateral scar. The Veteran was unable to stand for more than a few minutes and he was able to walk more than one quarter of a mile but less than a full mile. He used corrective shoes and a cane to assist with ambulation. The examiner noted that the Veteran had an impaired gait and that he walked with a cane with incomplete flexion of the left knee and shuffled with advancement of the left leg. There was also shortening of the left leg at the tibial plateau/femoral condyle area where the Veteran had his TKA. Physical examination revealed bony joint enlargement, crepitus, deformity, instability, weakness and abnormal motion. There was also a healed scar from the midline above the left knee medially and extending along the medial side a length of 29 cm. There was also clicking and grinding noted, with the patella contoured to the underlying retropatellar knee component. There was no meniscus abnormality. The examiner found objective evidence of instability with medial and lateral instability with approximately 2 cm of movement and also anterior movement of approximately 1 cm. There was no pain associated with this movement. It was further noted during a peripheral nerve examination that while there was evidence of imbalance when the Veteran removed his left knee brace, this appeared to be due to his marked favoring of the left knee for fear of it buckling. The examiner did not appreciate imbalance when the brace was on. Range of motion testing revealed flexion to 90 degrees and extension to 0 degrees, with no objective evidence of pain on motion or additional limitations after three repetitions of motion. There was no objective evidence of pain with active motion. There was no objective evidence of pain following repetitive motion and no additional limitation after 3 repetition of range of motion. There was also no ankylosis. Measurements of the left leg revealed that it was similar to that of the right leg. The right limb had a measurement of 87 cm and the left was 86 cm. The right calf measured 40 cm and the left 41 cm. The examiner diagnosed the Veteran with degenerative joint disease of the left knee and a TKA of the left knee. This impacted him occupationally through decreased concentration, decreased mobility, problems with lifting and carrying, lack of stamina, weakness or fatigue, decreased strength and pain. This prevented a number of activities of daily living, including chores, shopping, exercise and recreation. It also had a severe impact on a number of activities such as bathing, dressing, and driving. Finally, an April 2011 treatment record reflects that the Veteran had no gross musculoskeletal abnormalities. The was an edematous left knee with a well-healed TKR scar medially. Small effusion was also noted. The Veteran is currently rated under Diagnostic Code 5055, (prosthetic replacement of the knee joint). Under this code, a 100 percent rating is warranted for one year following knee replacement surgery. Subsequent to the 100 percent rating granted for one year following implantation of the prosthesis, a 30 percent evaluation is the minimum evaluation available. Chronic residuals consisting of severe painful motion or weakness in the affected extremity are rated as 60 percent disabling. Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to diagnostic codes 5256, 5261, or 5262, which respectively pertain to ankylosis, limitation of extension and impairment of the tibia and fibula. 38 C.F.R. § 4.71a, Diagnostic Code 5055. The preponderance of the evidence of record demonstrates that the Veteran is not entitled to a disability evaluation of 60 percent for his left knee disability under Diagnostic Code 5055. Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. According to the June 2005 VA examination report, the Veteran had flexion to 125 degrees and extension to 0 degrees. Pain was only noted at the extremes of motion. The Veteran was noted to have a "mild" decrease in range of motion and strength at this time. A February 2006 VA examination report also reflected flexion to 120 degrees and extension to -5 degrees with pain at the limits and there was only mild instability. Subsequent records continue to reflect extension to 0 degrees and flexion to, at worst, 90 degrees upon examination in March 2011. It was noted that there was no objective evidence of pain on motion in March 2011. Moreover, although the Veteran complains of weakness of the left knee, there are no objective medical findings showing that the Veteran has severe weakness of the knee. The evidence tends to show that he was given a knee brace and he used a cane due to instability of the knee. While the Veteran reports having pain and weakness in the left knee, the preponderance of the evidence does not show chronic residuals from the TKA which consist of chronic severe painful motion or weakness in the left knee. Therefore, the evidence demonstrates at best intermediate degrees of residual weakness or painful motion rather than chronic residuals of "severe" painful motion or weakness during the pendency of this claim. However, the Board must still consider whether a higher disability evaluation is warranted by analogy to diagnostic codes 5256, 5261 or 5262. Under Diagnostic Code 5262, which pertains to impairment of the tibia and fibula, a 10 percent rating is warranted for a slight knee or ankle disability; a 20 percent rating is warranted for a moderate knee or ankle disability; and a 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability. 38 C.F.R. § 4.71a. The highest available evaluation of 40 percent is warranted for nonunion of the tibia and fibula with loose motion requiring a brace. Id. According to a May 2005 VA treatment record, the Veteran was experiencing instability that required a brace. Examination confirmed the presence of mild ligamentous laxity. While a June 2005 VA examination report noted no definitive abnormalities, the prostheses were noted to be loosening. Instability was again noted upon examination in February 2006, and a VA treatment note from this time indicates that the Veteran's instability was suspicious for component loosening (although ligamentous laxity was a possibility). The Veteran was noted to be wearing a hinged knee sleeve at this time. The Veteran indicated that the knee felt unstable upon treatment in July 2006 and instability and popping were noted in January 2008. Finally, a March 2011 VA examination report reflects that the Veteran required a neoprene brace and a Don-Joy type brace for the left knee, and examination revealed instability with approximately 2 cm of movement and anterior movement of approximately 1 cm. The Veteran has also provided a number of lay statements expressing a sensation of looseness in the left knee. This evidence demonstrates that when rated by analogy, the Veteran is entitled to a disability evaluation of 40 percent under Diagnostic Code 5262, as he has suffered from loose motion that requires a brace for support. See 38 C.F.R. § 4.71a. The Board has also considered whether a higher rating may be warranted under any other applicable diagnostic code. Diagnostic Code 5256 is used to rate ankylosis of the knee. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury or surgical procedure. See Shipwash v. Brown, 9 Vet. App. 218, 221 (1995) (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (27th ed. 1988) at 91. In the present case, the Veteran has maintained a degree of motion throughout the pendency of his claim and the March 2011 VA examiner specifically found no evidence of ankylosis. As such, Diagnostic Code 5256 is not for application. Diagnostic Codes 5260 and 5261 deal with limitation of motion of the knee. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). See also VAOPGCPREC 9-04 (which finds that separate ratings under Diagnostic Code 5260 for limitation of flexion of the leg and Diagnostic Code 5261 for limitation of extension of the leg may be assigned for disability of the same joint). Under Diagnostic Code 5260, flexion must be limited to at least 45 degrees to warrant a compensable disability evaluation. See 38 C.F.R. §4.71a. According to a May 2005 VA treatment record, the Veteran had flexion to 120 degrees. Flexion was to 125 degrees in June 2005 and to 120 degrees upon examination in February 2006. Finally, examination in March 2011 revealed flexion to 90 degrees. No prior records revealed flexion to 60 degrees or less at any time during the pendency of this claim. As such, a compensable rating would not be warranted under Diagnostic Code 5260. See 38 C.F.R. § 4.71a. Likewise, a compensable rating would not be warranted under Diagnostic Code 5261. Under this code, a compensable rating is warranted when there is evidence of extension limited to 10 degrees or less. See 38 C.F.R. § 4.71a. According to the June 2005 VA examination, the Veteran had full extension to 0 degrees. Extension was again noted to be to 0 degrees in February 2006, May 2006, and July 2006, and range of motion testing was noted to be within normal limits in August 2009. Finally, upon examination in March 2011, extension was again normal to 0 degrees. As such, the evidence of record demonstrates that a higher rating based on limitation of extension is not warranted in this case. As already noted, evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). According to the June 2005 VA examination report, the Veteran only experienced pain at the extremes of motion. This was again the case upon examination in February 2006. The Veteran also denied symptoms such as pain upon treatment in July 2006. Finally, the March 2011 VA examiner explained that there was no objective evidence of painful motion and that the Veteran did not experience any additional limitations after three repetitions. Therefore, the evidence of record fails to reflect that the Veteran suffers from functional loss of such a degree due to symptoms such as pain, fatigue or weakness as to warrant a higher evaluation based on limitation of motion. Despite his symptoms, the Veteran has been capable of full extension throughout the pendency of this claim, and he has maintained a significant degree of flexion as well. The Board observes that there is no objective evidence that the Veteran has flare-ups of the knee which result in limitation of motion which would be greater than the assigned 40 percent rating. The Board also recognizes that a March 2007 record does suggest that knee extension was limited to 80 degrees. Initially, the Board stresses that this record fails to indicate which knee is being examined, so it is of little probative value. Furthermore, if this were referring to the left knee, this single notation of record fails to reflect a period of distinct symptomatology for which a higher rating may be warranted. The Veteran was found to have full extension to 0 degrees both before and after the date of this report, and the Veteran himself expressed how very happy he was with the current outcome of his left knee replacement upon treatment in July 2006. As such, the single notation of extension limited to 80 degrees in March 2007, when read in light of the remaining evidence of record, fails to suggest that a rating in excess of 40 percent is warranted for any period during the pendency of this claim. The Board notes that while there is evidence of instability in this case, a separate rating under Diagnostic Code 5257 for recurrent subluxation or lateral instability is not permitted. The Veteran has been assigned a 40 percent disability evaluation by analogy under Diagnostic Code 5262 for symptomatology of looseness of the left knee. To assign a separate disability evaluation based on the same symptomatology under Diagnostic Code 5257 for instability would amount to impermissible pyramiding. A claimant may not be compensated twice for the same symptomatology. Brady v. Brown, 4 Vet. App. 203, 206 (1993). The Board has also considered the testimony and statements of the Veteran when formulating the above opinion. However, he has not provided VA with any evidence or statement to suggest that a disability evaluation in excess of 40 percent is warranted. The Board is not disputing that the Veteran has described symptomatology associated with the knee. For example, in a July 2012 statement, the Veteran complained of symptomatology such as pain and difficulty with ambulation and stairs. However, such symptomatology does not in and of itself warrant a higher rating. A higher rating in this case would be warranted if there was evidence of "severe" weakness or painful motion, or, limitation of motion far in excess of that demonstrated by the evidence of record. The Veteran has not provided any statement or testimony of such symptomatology. The Board has also considered whether a separate compensable evaluation is warranted for scarring of the left knee. Diagnostic Code 7801 provides ratings for scars, other than the head, face, or neck, that are deep or that cause limited motion. Scars that are deep or that cause limited motion in an area or areas exceeding 6 square inches (39 sq. cm.) are rated 10 percent disabling. 38 C.F.R. § 4.118. A review of the evidence of record reflects that the Veteran's scarring has not been found to be deep, there is no evidence of limited motion, and the June 2005 VA examiner concluded that there were no associated soft tissue defects. A deep scar is one associated with underlying soft tissue damage. Id at Note (2). Diagnostic Code 7802 provides ratings for scars, other than the head, face, or neck, that are superficial or that do not cause limited motion. Superficial scars that do not cause limited motion, in an area or areas of 144 square inches (929 sq. cm.) or greater, are rated 10 percent disabling. According to the February 2006 VA examiner, there were four scars on the left knee measuring 17 by 1 cm, 11 by 1 cm, 6 by 1 cm and 5 by 1 cm. This is far short of 929 sq cm. Diagnostic Code 7803 provides a 10 percent rating for superficial unstable scars. However, the Veteran's scars have routinely been found to be stable. Diagnostic Code 7804 provides a 10 percent rating for superficial scars that are painful on examination. The Veteran's scarring has routinely been found to be nontender. Finally, Diagnostic Code 7805 instructs the rater to rate the scar based on limitation of function of the affected part. However, there is nothing of record to suggest any limited function arising from the Veteran's scarring. As such, a separate compensable disability evaluation for scarring of the left knee is not warranted under any applicable diagnostic code. See 38 C.F.R. § 4.118. Amendments were made to the criteria for rating the skin, effective as of October 23, 2008. However, the amended regulations are only applicable to claims received on or after October 23, 2008. See 73 Fed. Reg. 54,708 (September 23, 2008) (codified at 38 C.F.R. § 4.118, Diagnostic Codes 7800-05 (2009)). The Veteran's claim was received in April 2005. Finally, the Board recognizes that the March 2011 VA examiner indicated that the Veteran did experience regional skin denervation. It was noted that this was an anticipated and expected outcome with a TKA, resulting in numbness/dysesthesia. However, the record contains no evidence of functional impairment as a result of this sensation. The examiner specifically found all scarring to be stable and nontender, without resulting in functional impairment. As such, there is nothing to suggest that a separate rating would be warranted for this denervation. Based upon the guidance of the Court in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board has considered whether a staged rating is appropriate. However, as outlined above, the evidence of record demonstrates that a disability evaluation in excess of 40 percent for a left knee disability is not warranted at any time during the pendency of this claim. As such, staged ratings are not warranted. Resolving all reasonable doubt in favor of the Veteran, the Board finds that a disability evaluation of 40 percent is warranted for a left knee disability. See 38 U.S.C. § 5107(b). The claim is granted in this respect. However, the preponderance of the evidence of record is against a finding of entitlement to an evaluation in excess of 40 percent at any time during the pendency of this claim. The Board has also contemplated whether the case should be referred for extra-schedular consideration. In this regard, to accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The provisions of 38 C.F.R. § 3.321(b) state as follows: Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service- connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. In Thun v. Peake, 22 Vet. App. 111 (2008), the Court specified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. VA's General Counsel has stated that consideration of an extra-schedular rating under 3.321(b)(1) is only warranted where there is evidence that the disability picture presented by the Veteran would, in that average case, produce impairment of earning capacity beyond that reflected in the rating schedule or where evidence shows that the Veteran's service-connected disability affects employability in ways not contemplated by the rating schedule. See VAOPGCPREC 6-96 (Aug. 16, 1996). In Thun, the Court further explained that the actual wages earned by a particular Veteran are not considered relevant in the calculation of the average impairment of earning capacity for a disability, and contemplate that Veterans receiving benefits may experience a greater or lesser impairment of earning capacity than average for their disability. The Thun Court indicated that extraschedular consideration cannot be used to undo the approximate nature of the rating system created by Congress. The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. However, the Board is not precluded from raising this question, see Floyd v. Brown, 9 Vet. App. 88 (1996), and addressing referral where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board is aware of the Veteran's complaints as to the effects of his service-connected left knee disability on his activities of work and daily living. In the Board's opinion, all aspects of this disability are adequately encompassed in the assigned schedular ratings. In this respect, the Veteran complains of varying degrees of pain, weakness, limited motion and sensations of looseness. His assigned disability evaluation of 40 percent contemplates the type of impairment described by the Veteran. While there is certainly evidence of occupational impairment, the issue of entitlement to TDIU benefits will be discussed further in the Remand section below. In short, the Board finds that the assigned schedular evaluations are adequate and there is no basis for extraschedular referral in this case. See Thun, 22 Vet. App. 111, 114-15 (2008). ORDER A disability evaluation of 40 percent for a left knee disability status post left total knee arthroplasty is granted. REMAND Increased Disability Evaluations for Bilateral Elbow Fractures with Neurological Impairment The Veteran also contends that he is entitled to increased disability evaluations for his service-connected right and left elbow disabilities. Regrettably, an additional remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the appellant's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. For historical purposes, the Veteran was originally granted service connection for bilateral elbow disabilities in an April 2006 rating decision. Noncompensable disability evaluations were assigned under Diagnostic Code 5206, effective as of August 5, 2005. A timely notice of disagreement was received from the Veteran in May 2006. The noncompensable evaluations were confirmed in a May 2007 statement of the case, which the Veteran appealed to the Board in May 2007. Subsequently, in an October 2012 rating decision, the Veteran's disability evaluation was increased to 50 percent for the right elbow and 40 percent for the left elbow, effective as of March 18, 2011. Since this did not constitute a full grant of the benefits sought on appeal, the claims remain in appellate status. AB, 6 Vet. App. at 39. These claims were previously remanded by the Board in January 2011. Specifically, the Veteran was to be afforded a VA examination of each elbow to determine the severity of the residuals associated with each elbow. It was also to be determined what neurological diagnoses were associated with either upper extremity and whether it was related to military service or the Veteran's in-service injuries. The AOJ was then to determine whether separate disability evaluations were warranted for any neurological manifestations of the upper extremities. The record reflects that the Veteran was subsequently afforded a VA examination of the elbows in March 2011. The Veteran reported that since injuring his elbows in service, he had experienced ulnar nerve dysesthesia with intermittent numbness in the 4th and 5th fingers, bilaterally. The Veteran also endorsed problems with dropping objects and shaking since his in-service injury, but he denied any weakness. However, despite these reported symptoms, the examiner indicated that no elbow symptoms were present and that there was no instability or pain. The examiner stated that range of motion testing revealed flexion of the right elbow to 45 degrees and extension to 180 degrees. The left elbow had flexion to 145 degrees and extension to 180 degrees. Normal range of motion of the elbow is from 0 degrees of extension to 145 degrees of flexion. See 38 C.F.R. §4.71a, Plate I. Therefore, these measurements, if accurate, would represent a significantly deformed range of motion in the upper extremities. This directly contradicts the examiner's assertion that there was no symptomatology associated with the elbows. As such, an additional examination is needed to clarify the numerous discrepancies found throughout the March 2011 VA examination report. The examiner assigned to the Veteran's case should also identify each neurological disability associated with the service-connected residuals of the elbow fractures of both upper extremities. While the examiner suggested that the Veteran's neurological manifestations were due to a nonservice-connected cervical spine disability, the examiner failed to discuss the Veteran's lay statements when offering an opinion as to etiology. As noted above, the Veteran informed the examiner that he began to have problems in service when he was struck from the back and fell forward on his hands. This evidence must be considered and discussed when formulating an opinion. The examiner also failed to identify the specific nerves involved, complicating VA's ability to assign a proper disability evaluation if separate evaluations are indeed found to be warranted. TDIU Benefits Finally, the March 2011 VA examiner also concluded that the Veteran's left knee disability resulted in significant occupational effects, preventing a number of activities such as recreation or exercise. The Veteran also reported during his June 2005 VA examination that he had missed quite a bit of work because of this problem and the examiner concluded that it did significantly limit his activities of daily living. The Veteran has also reported that he quite a prior position due to his service-connected left knee disability. As already noted, when a Veteran submits evidence of unemployability in association with an increased rating claim, a claim for TDIU benefits is also inferred. See Rice v. Shinseki, 22 Vet. App. 447 (2009). It is presently unclear whether the Veteran's disabilities are of such severity as to in fact result in an inability to follow a "substantially gainful occupation." According to the March 2011 VA examination report, the Veteran worked at home on computers. It is not known whether this is may be considered "marginal" versus a "substantially gainful employment." While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Also, in Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income...." The Veteran should, therefore, be scheduled for a VA examination (or examinations) so that an opinion can be offered as to whether it is at least as likely as not that his service-connected disabilities, singly or taken in their entirety, render him unable to obtain or maintain a substantially gainful occupation. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be provided with sufficient VCAA notice informing him of how a TDIU rating is assigned and of the types of evidence needed to support such a claim. He should also be provided the opportunity to submit or identify any additional evidence in support of a claim of unemployability. 2. Obtain the Veteran's VA clinical records since March 2011, pertaining to the issues on appeal and incorporate them into the claims file - either physically or electronically. 3. The Veteran should again be scheduled for a VA examination before an appropriate physician for each elbow. The Veteran's claims file and a copy of this remand must be provided to the examiner for review in conjunction with this examination and the examination report should reflect review of these items. The examiner is asked to describe in detail all symptomatology associated with the Veteran's bilateral elbow disabilities and obtain a complete history from the Veteran. Any tests or studies deemed necessary for an accurate assessment should be conducted and the results should be associated with the claims file and discussed in the examination report. The examiner should address the following: (a) Discuss the current severity of the Veteran's right and left elbow residuals of dislocation in service, specifying separately for each joint the range of motion and functional impairment. This should be stated in degrees and the examiner should specify the point of flexion or extension at which pain begins. The examiner is asked to reconcile any findings with those made upon examination in March 2011. (b) Describe each neurologic disorder present in both the right upper extremity and the left upper extremity. The affected nerve should specifically be identified. The examiner should be specific in noting all associated diagnoses, and then the examiner should address the following: (i) Is it at least as likely as not (50 percent or greater probability) that the Veteran currently has a neurologic disorder of either upper extremity which had its onset during his active service? (ii) Is it at least as likely as not (50 percent or greater probability) that the Veteran currently has a neurologic disorder of either upper extremity which has been chronic and continuous since his active service? The Veteran's lay assertions must be considered and discussed when formulating this opinion. (iii) Is it at least as likely as not (50 percent or greater probability) that the Veteran currently has a neurologic disorder of either upper extremity which is due to injury to the elbow during his active service? (iv) Is it at least as likely as not (50 percent or greater probability) that any neurological disorders found of the upper extremity is caused by the Veteran's service-connected right and/or left elbow disability. If not, state whether it is at least as likely as not (50 percent or greater probability) that the service-connected right and left elbow disabilities aggravate (increases the severity of any found neurological disability). If so, please identify that aspect of the disability which is due to such aggravation. The rationale for all opinions expressed should be provided in a legible report. If any requested opinion cannot be provided without resort to mere speculation, the examiner should note this fact and explain in full why this is the case. 4. The Veteran should then be scheduled for a VA examination(s) before an appropriate physician(s) to determine the impact of the Veteran's service-connected disabilities (right elbow fracture, radial head, nondisplaced with neurological impairment; left elbow fracture, radial head, nondisplaced with neurological impairment; total left knee arthroplasty; and disc disease, lumbosacral spine) has on his ability to work. The examiner should specifically address the following: Whether it is at least as likely as not (at least a 50 percent probability) that the Veteran's service-connected disabilities individually or taken in their totality, render him unable to obtain or maintain a substantially gainful occupation. In addressing this question, the examiner should identify each symptom associated with the service-connected disabilities and then state the impact that such symptoms has on the Veteran's ability to perform manual and sedentary duties. The Veteran's claims file and a copy of this remand must be provided to the examiner(s) for review in conjunction with the examination(s), and the examination report(s) should reflect review of these items. A full discussion supported by a complete rationale is required for all opinions offered. 5. The RO/AMC should then review all of the evidence of record and readjudicate the issues on appeal. This should include consideration as to whether separate disability evaluations are warranted for neurological manifestations of either upper extremity. With respect to the claim for a TDIU rating, a discussion of whether any employment by the Veteran can be considered marginal should be made. If the determination is unfavorable to the Veteran, then the RO/AMC should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the Veteran and his service representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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). ______________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs