Citation Nr: 1333059	
Decision Date: 10/22/13    Archive Date: 10/24/13

DOCKET NO.  07-30 885A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUES

1.  Entitlement to a rating in excess of 30 percent for the service-connected post-operative total right knee replacement for degenerative arthritis, with evidence of fibrous ankylosis [hereinafter, a service-connected right knee disability] prior to February 19, 2010.

2.  Entitlement to special monthly compensation pursuant to 38 U.S.C.A. § 1114(s) for the period from December 19, 2005, to January 31, 2007.

3.  Entitlement to a total disability rating based on individual unemployability (TDIU) prior to February 19, 2010 with the exception of the period from December 19, 2005, to January 31, 2007.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

S. Becker, Counsel

INTRODUCTION

The Veteran served on active duty from May 1963 to May 1967.

This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois.  In a September 2005 rating decision, the Veteran's temporary 100 percent rating for postoperative right total knee replacement with plastic repair for degenerative arthritis was decreased to 30 percent effective October 1, 2005.  This 30 percent rating for status post right total knee replacement for degenerative arthritis was continued in an April 2006 rating decision.  The Veteran appealed.  In doing so, he requested a hearing.  Yet no hearing was held because he later canceled this request.  38 C.F.R. § 20.704(e).

In an April 2010 rating decision, the RO increased the Veteran's rating for postoperative total right knee replacement for degenerative arthritis, with evidence of fibrous ankylosis, to 60 percent effective February 19, 2010.  His appeal continued since this increase did not date back to his claim and was not to the maximum rating of 100 percent.  AB v. Brown, 6 Vet. App. 35 (1993).  The benefit sought was granted only partially, in other words.  The Board denied a rating in excess of 30 percent prior to February 19, 2010, and in excess of 60 percent since that date in an October 2011 decision.

The Veteran appealed, but only with respect to the period prior to February 19, 2010, to the United States Court of Appeals for Veterans Claims (Court).  The Court issued a Memorandum Decision setting aside that portion of the Board's decision in January 2013.  An increased rating for the aforementioned period was remanded back to the Board for readjudication.  The following decision is made for this issue based on review of the Veteran's paper claims file in addition to his Virtual VA electronic claims file.  At this time, the Board has recharacterized this issue as one involving a right knee disability for the sake of simplicity.

VA indeed has a well-established duty to maximize a claimant's benefits.  Buie v. Shinseki, 24 Vet. App. 242 (2011); AB, 6 Vet. App. at 35.  SMC is to be accorded when a Veteran becomes eligible without need for a separate claim.  Bradley v. Peake, 22 Vet. App. 280 (2008).  Entitlement to SMC for the period from December 19, 2005, to January 31, 2007, is before the Board for this reason.  A TDIU, if expressly raised by the Veteran or reasonably raised by the record, is part of an increased rating claim.  Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).  In an October 2012 rating decision, the RO granted a TDIU effective as of February 19, 2010.  Entitlement to a TDIU prior to this date is before the Board because, as discussed herein, the record reasonably has raised it.  The period from December 19, 2005, to January 31, 2007, has been excluded for the reason specified herein.  This TDIU issue is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C.


FINDINGS OF FACT

1.  The Veteran's right knee symptoms prior to February 19, 2010, are very similar to his symptoms since that date for which a 60 percent rating has been assigned.

2.  From December 19, 2005, to January 31, 2007, the Veteran's service-connected left knee disability was rated at 100 percent and it is concluded herein that his service-connected right knee disability warranted a 60 percent rating.


CONCLUSIONS OF LAW

1.  The criteria for a rating of 60 percent, but no higher, for a service-connected right knee disability have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.25, 4.40, 4.45, 4.59, 4.68, 4.71, 4.71a, Diagnostic Code 5055 (2013).
2.  The criteria for SMC pursuant to 38 U.S.C.A. § 1114(s) have been met for the period from December 19, 2005, to January 31, 2007.  38 U.S.C.A. § 1114(s) (West 2002); 38 C.F.R. § 3.350 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

VA has a duty to notify and a duty to assist with respect to claims for VA benefits.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.  No discussion in this regard is necessary concerning SMC.  There is no claim; the Board raises the issue herein on its own.  The conclusion made herein further is favorable to the Veteran.  As such, any errors that were have been made regarding the aforementioned duties as they pertain to SMC were harmless.  Discussion is necessary regarding these duties as they pertain to an increased rating for the Veteran's right knee disability.  Indeed, a total rating of 100 percent is not granted herein.

Notice of the evidence necessary to substantiate the claim, that VA will seek to obtain, and that the claimant is expected to provide must be provided prior to the initial decision by the agency of original jurisdiction (AOJ).  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  For increased ratings, generic rather than specific notice about substantiating the claim is required.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (overturning Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008)).  Notice of how ratings and effective dates are assigned also should be included.  Id.; Dingess v. Nicholson, 19 Vet. App. 473 (2006).

Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (overturning Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007)).  None is found.  A January 2006 letter informed the Veteran and his representative of the criteria for establishing an increased rating, the evidence required in this regard, his and VA's duties for obtaining evidence.  A March 2006 letter informed the Veteran of how ratings and effective dates are assigned.  These letters are dated prior to the adjudication by the RO (via the April 2006 rating decision).  They are dated subsequent to the RO/AOJ adjudication via the September 2005 rating decision.  Yet there was subsequent readjudication in an August 2007 statement of the case as well as April 2010 and December 2010 supplemental statements of the case.  This readjudication following notice has cured any timing error.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370 (2006).  Further, it is notable that the Veteran has had the opportunity to participate in the processing of this matter.  Of final note is that, although after both rating decisions, repeat notice of some of the aforementioned was provided to the Veteran and his representative in letters dated in April and October 2006.

VA must assist the claimant in the procurement of relevant records.  38 U.S.C.A. § 5103A(b-c); 38 C.F.R. § 3.159(c)(1-3).  Additionally, VA is required to provide a medical examination and/or obtain a medical opinion when necessary.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).

VA treatment records regarding the Veteran have been obtained.  No private treatment records have been obtained.  This is because the Veteran has not identified any such records despite having had opportunities to do so.  Social Security Administration (SSA) records regarding the Veteran also have not been obtained.  Indeed, VA was informed that these records had been destroyed in November 2010.  VA medical examinations were performed in July 2005 and February 2006.  The paper claims file was reviewed by both examiners.  There is no indication that either examiner reviewed the Virtual VA electronic claims file, but this is of no consequence since the information therein as of the time of the examinations is entirely of a procedural nature.   Each examiner interviewed the Veteran and undertook an assessment of him.  These actions have provided sufficient detail so that this decision is fully informed.  As such, the VA medical examinations are adequate.  Barr v. Nicholson, 21 Vet. App. 303 (2007).

Significantly, neither the Veteran nor his representative has identified any further development necessary for fair adjudication on the merits that has not been completed. The record also does not indicate any further development. Thus, the Board finds that no further notice or assistance is required and that VA's duties to notify and to assist have been satisfied. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio, 16 Vet. App. at 183. The same conclusion was reached by the Board in October 2011, and it was not challenged when the Veteran appealed to the Court. Appellate review once again may proceed without prejudice to him. Bernard v. Brown, 4 Vet. App. 384 (1993).  

II.  Increased Rating

A.  Schedular

Disability ratings represent as far as practicably can be determined the average impairment in earning capacity due to a disability.  38 U.S.C.A. § 1155.  A rating is assigned under the Rating Schedule by comparing the extent to which a claimant's disability impairs his ability to function under the ordinary conditions of daily life, as demonstrated by his symptoms, with the rating criteria for the disability.  Id.; 38 C.F.R. § 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Examinations must be interpreted, and if necessary reconciled, into a consistent picture so that the rating is accurate.  38 C.F.R. § 4.2.  The assignment of a staged rating, where two or more ratings are assigned for different portions of the period on appeal, must be considered.  Hart v. Mansfield, 21 Vet. App. 505 (2007); Francisco v. Brown, 7 Vet. App. 55 (1994).  If two ratings are potentially applicable, the higher is assigned if the disability more nearly approximates the criteria required for the higher rating.  Otherwise, the lower rating is assigned.  38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant, however.  38 C.F.R. § 4.3.  The claimant thus prevails if the evidence supports an increased rating or is in relative equipoise, but does not prevail when the preponderance of the evidence is against an increased rating.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

A musculoskeletal disability involves the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  38 C.F.R. § 4.40.  Functional loss in the form of limitation of motion may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion, or weakness.  Id.; 38 C.F.R. § 4.59.  It also may be due to excess fatigability or incoordination.  38 C.F.R. § 4.45.  An increased rating for functional loss, to include during flare ups, due to those factors accordingly may be assigned under Diagnostic Codes predicated on limitation of motion.  Id.; 38 C.F.R. §§ 4.40, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  However, pain does not constitute functional loss and painful motion does not constitute limited motion.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

Since May 2004 when his right knee was replaced, the Veteran's service-connected right knee disability has been evaluated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5055.  This Diagnostic Code addresses knee replacement (prosthesis).  It provides for a 100 percent rating for one year following implantation of the prosthesis.  Thereafter, the minimum rating is 30 percent.  A 60 percent rating is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity.  Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to Diagnostic Codes 5256, 5261, or 5262.  Severe is not defined in the Diagnostic Code.  Severe generally is defined as "of a great degree: serious."  Merriam-Webster 's Collegiate Dictionary, 1140 (11th ed. 2003).  Normal range of motion is from zero degrees extension to 140 degrees flexion.  38 C.F.R. § 4.71, Plate II.

Diagnostic Code 5256 concerns ankylosis of the knee.  A 30 percent rating requires a favorable angle in full extension or in slight flexion between 0 and 10 degrees.  In flexion between 10 and 20 degrees warrants a rating of 40 percent, while in flexion between 20 and 45 degrees warrants a rating of 50 percent.  The maximum 60 percent rating is reserved for an extremely unfavorable angle in flexion at 45 degrees or more.  Diagnostic Code 5261 addresses limitation of motion of the leg with respect to extension.  A 30 percent rating is reserved for extension limited to 20 degrees.  Extension limited to 30 degrees warrants a 40 percent rating.  The maximum 50 percent rating is awarded when there is extension limited to 45 degrees.  Finally, Diagnostic Code 5262 concerns impairment of the tibia and fibula.  Malunion with marked knee or ankle disability merits a 30 percent rating.  The maximum rating of 40 percent is reserved for nonunion of the tibia and fibula with loose motion requiring a brace.

Additional Diagnostic Codes pertaining to the knee include Diagnostic Code 5257.  This Diagnostic Code is for other knee impairment due to recurrent subluxation or lateral instability.  It sets forth a 10 percent rating for slight impairment, a 20 percent rating for moderate impairment, and the maximum 30 percent rating for severe impairment.  Diagnostic Code 5260 relates to limitation of motion of the leg with respect to flexion.  Flexion limited to 45 degrees warrants a 10 percent rating.  A 20 percent rating requires flexion limited to 30 degrees.  The maximum rating of 30 percent is reserved for flexion limited to 15 degrees.  Diagnostic Code 5263 addresses genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated).  The only rating it provides for is 10 percent.  Finally, Diagnostic Code 5258 addresses dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint while Diagnostic Code 5259 addresses symptomatic removal of the semilunar knee cartilage.  It follows from the fact that the Veteran's right knee, to include the semilunar cartilage or meniscus, has been totally replaced that these two Diagnostic Codes are inapplicable.

Pyramiding, rating same manifestation of a disability under different Diagnostic Codes, is to be avoided.  38 C.F.R. § 4.14.  It is possible, however, for there to be separate and distinct manifestations of the same disability such that ratings under more than one Diagnostic Code are warranted.  The critical requirement is that none of the symptomatology is duplicative or overlapping.  Esteban v. Brown, 6 Vet. App. 259 (1994).  Two examples are notable.  First, separate ratings are assigned where there is both a limitation of flexion and a limitation of extension of the same knee.  VAOPGCPREC 9-04 (Sept. 17, 2004), 69 Fed. Reg. 59990 (2004).  Second, separate ratings are assigned for arthritis and for subluxation/instability of the same knee.  VAOPGCPREC 09-98 (August 14, 1998), 63 Fed. Reg. 56704 (1998); VAOPGCPREC 23-97 (July 1, 1997), 62 Fed. Reg. 63604 (1997); Esteban, 6 Vet. App. at 259; Licthenfels v. Derwinski, 1 Vet. App. 484 (1991).  Diagnostic Code 5003, and thus Diagnostic Codes 5013 through 5024, stated that arthritis generally is to be evaluated on the basis of limitation of motion.
The probative value of the evidence must be assessed.  38 C.F.R. § 4.6.  The Board must identify the evidence it finds to be persuasive and unpersuasive and explain why any favorable evidence is unpersuasive.  Gabrielson v. Brown, 7 Vet. App. 36 (1994), Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Both medical and lay evidence (also known as non-medical evidence) may be discounted in light of inherent characteristics and its relationship to other evidence.  Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997).  No significant reason exists to discount any of the medical evidence.  Regarding lay evidence from the Veteran regarding his symptoms, he is competent because he personally experienced them.  Layno v. Brown, 6 Vet. App. 465 (1994).  There is no indication of any significant reason, to include interest, self-interest, bias, inconsistency, facial implausibility, bad character, malingering, desire for monetary gain, or witness demeanor, to question his credibility.  Pond v. West, 12 Vet. App. 341 (1999); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Caluza v. Brown, 7 Vet. App. 498 (1995); Cartright v. Derwinski, 2 Vet. App. 24 (1991).

Only the most relevant evidence need be discussed, even though all the evidence has been reviewed.  Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000).  That includes evidence dated beginning one year prior to an increased rating claim.  38 C.F.R. § 3.400(o)(2).  It also includes evidence dated even earlier that sheds light on the disability in question during the period on appeal.  38 C.F.R. § 4.1.

Based on the evidence, the Board finds that a rating in excess of 30 percent is warranted for the Veteran's service-connected right knee disability prior to February 19, 2010.  Specifically, a rating of 60 percent is warranted under Diagnostic Code 5055.  The Veteran argued to the Court that his symptoms during the aforementioned period were equal to or worse than they have been during the period beginning February 19, 2010.  The Court characterized the symptoms in both periods as nearly identical.

Pain, to include on motion, is of import under Diagnostic Code 5055.  The Veteran reported intermittent right knee pain at the July 2005 VA medical examination and constant stabbing right knee pain rated as a six out of 10 at the February 2006 VA medical examination.  It was noted that he was doing well to include with pain in a May 2006 VA treatment record.  A November 2006 VA treatment record contains his complaint of occasional right knee pain.  It was noted that the Veteran does not take pain medication and that he had no right knee pain upon VA medical examination dated February 19, 2010.  However, he indicated that he takes pain medication upon VA medical examination dated in October 2010.  He complained of worsening symptoms, which would include pain, with weight bearing and in the cold.  As such, he had at least some pain both prior and subsequent to February 19, 2010.  This pain, if anything, was more significant prior to this date than subsequent to it.  At no point has pain been detected when the Veteran moves his right knee.  Thus, this symptom was absent prior to February 19, 2010, and has remained absent beginning on this date.

In addition to pain, limitation of motion is of import under Diagnostic Code 5055.  The Veteran's right knee has a range of motion from 5 to 80 degrees at the July 2005 VA medical examination and from zero to 60 degrees at the February 2006 VA medical examination.  VA treatment records dated in May 2007, November 2007, and December 2008 reflect a range of motion to 85 degrees.  Upon VA medical examination on February 19, 2010, range of motion was only to 55 degrees due to fibrous ankylosis.  Deep knee bends further were only to 50 percent of normal.  Range of motion was to 75 degrees at the second examination with mechanical rigidity at 75 degrees.  An August 2012 VA treatment record, which is the only piece of relevant evidence not available to the Board previously, reveals a range of motion to 45+ degrees.  Accordingly, the Veteran always has had a significantly reduced right knee range of motion.  This includes during the period prior to February 19, 2010, and the period beginning on this date.  Although there has been full extension, with the exception of a lack of 5 degrees at the July 2005 VA medical examination, there particularly has been a consistent reduction between 55 and 95 degrees with respect to flexion.

Weakness finally is of import under Diagnostic Code 5055.  At the July 2005 VA medical examination, the Veteran walked with a slight limp.  He reported using a cane at home as well as using crutches for longest distances at the February 2006 VA medical examination.  He indicated that he could walk half a block with either the cane or the crutches.  His right quadriceps and calf muscles were atrophied, with strength of four out of five.  The November 2006 VA treatment record shows the Veteran's right leg strength was five out of five.  The November 2007 VA treatment record contains his report that he occasionally uses a cane.  At the February 19, 2010, VA medical examination, atrophy in the Veteran's right quadriceps was present.  Strength in his right leg was four out of five.  At the October 2010 VA medical examination, the Veteran complained that he could walk only 15 to 20 steps before needing to rest even using a cane.  He leaned to the right while using the cane to walk.  There was atrophy or muscle loss of the quadriceps, but strength was five out of five.  Right hip flexion was four out of five.  The August 2012 VA treatment record sets forth the recommendation that the Veteran continue using a cane to help with balance and prevent falls.  Therefore, he had atrophy resulting in intermittent weakness and consequential problems with ambulation prior to February 19, 2010, which continued thereafter.  

The Veteran's symptoms during the period prior to February 19, 2010, in sum, are very similar to those during the period beginning February 19, 2010.  It follows that the same rating should be assigned for both periods.  The Board's October 2011 decision contained the conclusion that the 60 percent rating assigned for the period beginning on February 19, 2010, was proper under Diagnostic Code 5055.  The implied basis was that the Veteran's symptoms are serious or severe.  A 60 percent rating thus is proper under Diagnostic Code 5055 for the period prior to February 19, 2010, on the same basis.

Given this conclusion, the Board finds that it is unnecessary to consider any other Diagnostic Code.  Diagnostic Code 5055 does not call for rating by analogy pursuant to Diagnostic Codes 5256, 5261 to include an assessment of functional loss, and 5262 when a 60 percent rating has been assigned.  The assignment of a compensable rating based on Diagnostic Code 5257, 5260 to include an assessment of functional loss, or 5263 separate from, or in addition to, a 60 percent rating need not be considered.  Such a rating might not be against pyramiding, but the amputation rule must be applied.  This rule mandates that the combined rating for disabilities of an extremity shall not exceed the rating for amputation at the elective level, were amputation to be performed.  38 C.F.R. § 4.68.  Amputation at the level of the middle or lower third of the thigh merits a 60 percent rating under Diagnostic Code 5162.  So does amputation with defective stump, for which thigh amputation is recommended, and amputation not improvable by prosthesis controlled by natural knee action.  These are the subjects of Diagnostic Codes 5163 and 5164, respectively.  In other words, even if the Veteran's right leg were amputated up to the level of his mid-thigh, he still could not receive a rating higher than 60 percent.  A separate rating of 10 percent would result in a continued combined rating of 60 percent for his right knee, while a separate rating of 20 percent or more would result in a combined rating of 70 percent or higher.  38 C.F.R. § 4.25.  The former would not result in his receipt of additional compensation whereas the latter is prohibited.

The Board has considered the application of the benefit of the doubt and the assignment of a staged rating in making the above findings leading to the conclusion that a rating in excess of 30 percent must be granted for the Veteran's service-connected right knee disability during the period prior to February 19, 2010.  However, the preponderance of the evidence supports a 60 percent rating during the entirety of the aforementioned period.  There accordingly is no doubt to resolve to the Veteran's benefit and no basis for a staged rating.  The previous stage distinguishing the period prior to February 19, 2010, and the period beginning on that date indeed now is eliminated.  

B.  Extraschedular

As an alternative to assigning a schedular rating, or a rating under the Rating Schedule, one may be assigned on an extraschedular basis.  38 C.F.R. § 3.321(b); Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995).  A three step process governs the assignment of extraschedular ratings.  38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008).  First, a determination of whether the evidence presents such an exceptional disability picture that the schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology must be made.  If the rating criteria are inadequate, it must be determined whether the Veteran exhibits other related factors such as marked interference with employment or frequent periods of hospitalization.  If such related factors are exhibited, then referral third must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service (C & P Service) for consideration of an extraschedular rating.

Neither the Veteran nor his representative has argued for an extraschedular rating prior to February 19, 2010.  There is no indication that his service-connected right knee disability could not be contemplated adequately by the schedular rating criteria discussed above.  The Veteran's symptoms, which primarily consisted of pain, limited motion, and weakness specifically are accounted for by the criteria.  The assigned rating was based on them.  No higher rating is possible pursuant to them.  The effect the Veteran's right knee had on him thus is encompassed by the assigned rating.  That includes ambulation difficulty, as mentioned above, as well as any other limitations regarding body motion and the consequential impact on his ability to undertake activities of daily living.  Because the schedular rating criteria are adequate, the Board does not find an exceptional right knee disability picture for the period prior to February 19, 2010.  Discussion of whether there are related factors accordingly is unnecessary.  Yet it is notable that there is no indication the Veteran was hospitalized overnight due to his service-connected right knee disability during the aforementioned period.  Neither he nor his representative has contended that this disability alone, as opposed to in combination with other service-connected disabilities, resulted in marked interference with employment during the aforementioned period.  The medical evidence is silent in this regard.  In sum, the Board finds that referral for consideration of the assignment of an extraschedular rating is not warranted.

III.  SMC

Pursuant to 38 U.S.C.A. § 1114(s) and its implementing regulation 38 C.F.R. § 3.350(i), SMC is payable where there is a single service-connected disability rated at 100 percent and additional service-connected disability or disabilities independently rated at 60 percent or more.  The April 2006 rating decision assigned a temporary 100 percent rating for the Veteran's service-connected left knee disability effective December 19, 2005, through January 31, 2007.  It was concluded above that his service-connected right knee disability warranted a 60 percent rating prior to February 19, 2010.  This includes from December 19, 2005, to January 13, 2007.  As such, SMC pursuant to 38 U.S.C.A. § 1114(s) is granted during this period.

ORDER

A rating of 60 percent for a right knee disability prior to February 19, 2010, is granted, subject to the laws and regulations governing monetary awards.  

SMC pursuant to 38 U.S.C.A. § 1114(s) for the period from December 19, 2005, to January 31, 2007 is granted, subject to the laws and regulations governing monetary awards.  

REMAND

Total disability means that there is present any impairment of mind or body that renders it impossible to follow a substantially gainful occupation.  38 C.F.R. §§ 3.340, 4.15.  The impairment must be due to a service-connected disability or service-connected disabilities rated at less than 100 percent.  38 C.F.R. § 4.16.  Even when one such disability is rated at 100 percent, consideration must be given to whether a TDIU may be assigned for another such disability or disabilities.  Bradley v. Peake, 22 Vet. App. 280 (2008) (overturning Green v. West, 11 Vet. App. 472 (1998); Vettese v. Brown, 7 Vet. App. 31 (1994); Holland v. Brown, 6 Vet. App. 443 (1994); VAOPGCPREC 06-99).  This is because SMC may be warranted even though no additional disability compensation may be paid.  Id.

A schedular TDIU requires that the claimant be unable to secure or follow a substantially gainful occupation due to service-connected disability or disabilities rated at less than 100 percent. 38 C.F.R. § 4.16(a). If the claimant has more than one service-connected disability, one must be rated at 40 percent or more with a combined rating for all service-connected disabilities of 70 percent or more. A TDIU on an extraschedular basis requires that, even where the claimant does not have one service-connected disability rated at 40 percent or more with a combined rating for all service-connected disabilities of 70 percent or more, he be unemployable due to a service-connected disability(ies). 38 C.F.R. § 4.16(b). Referral to the Director of the C & P Service is required because VA (including the Board) cannot assign an extraschedular TDIU in the first instance. Id.; Bagwell, 9 Vet. App. at 337; Floyd, 9 Vet. App. at 88; Shipwash, 8 Vet. App. at 218.

Neither the Veteran nor his representative has argued for a TDIU prior to February 19, 2010.  Yet he reported at the February 2006 VA medical examination that his last day of work at the post office was in December 2005.  He indicated taking sick leave thereafter.  Upon VA medical examination concerning his psychiatric state in July 2012, he indicated that he left work in 2006.  The Veteran stated at an August 2012 VA medical examination concerning his psychiatric state that he retired after 21 years because of "[his] knee."  The October 2012 rating decision finally granted a TDIU effective February 19, 2010, based on his service-connected right knee disability.  At the time of this decision, this date was the first date that a 60 percent rating was assigned to this knee.  A conclusion herein, however, is that this rating must be assigned prior to February 19, 2010.  A TDIU prior to this date thus reasonably has been raised.

In addition to the 60 percent rating granted herein for the Veteran's service-connected right knee disability prior to February 19, 2010, his service-connected left knee disability was rated at 10 percent prior to December 18, 2005.  It is reiterated that it was rated at 100 percent from December 19, 2005, to January 31, 2007.  A conclusion herein is that SMC during this period must be paid.  Beginning February 1, 2007, a 30 percent rating was assigned for the Veteran's service-connected left knee disability.  Effective August 10, 2007, he was service-connected for posttraumatic stress disorder rated at 50 percent.  He also was service-connected for scars of the right knee and leg effective January 6, 2006, but a noncompensable rating was assigned.  A TDIU, in sum, must be considered prior to February 19, 2010, with the exception of December 19, 2005, to January 31, 2007, for which there already is a 100 percent rating and SMC.  The combined rating for the period prior to December 19, 2005, is only 60 percent.  38 C.F.R. § 4.25.  As such, a TDIU can be awarded only on an extraschedular basis for this period.  For the entire period from February 1, 2007, to February 18, 2010, the Veteran's service-connected right knee disability is rated at 60 percent.  His combined rating exceeds 70 percent.  Indeed, it now is 90 percent.  Id.  As such, a TDIU can be awarded only a schedular basis for this period.

Adjudication of the Veteran's entitlement of a TDIU prior to February 19, 2010 except for the period from December 19, 2005, to January 31, 2007, to include on an extraschedular basis prior to December 19, 2005, and on a schedular basis beginning February 1, 2007, through February 18, 2010, at this time would be premature.  The duty to notify requires that the Veteran be informed of the evidence necessary in this regard, that VA will seek to obtain, and that he is expected to provide as well as how effective dates are assigned (how ratings are assigned is irrelevant to a TDIU).  The duty to assist requires that VA assist him in obtaining any outstanding identified records as well as provide a VA medical examination and/or obtain a VA medical opinion if necessary.  Such an examination and/or opinion may be necessary.  Evidence concerning whether the Veteran's service-connected disabilities in aggregate were of sufficient severity to render him unemployable prior to December 19, 2005, and unable to secure or follow a substantially gainful occupation beginning February 1, 2007, through February 18, 2010, is needed.  It appears that nothing directly on point is of record as of yet.  However, outstanding records that are on point may be received.

Given the above, a REMAND is directed for the following:

1.  Provide the Veteran and his representative with a notice letter regarding a TDIU prior to February 19, 2010 with the exception of the period from December 19, 2005, to January 31, 2007.  This includes notice regarding an extraschedular TDIU prior to December 19, 2005, and a schedular TDIU beginning February 1, 2007, through February 18, 2010.  The letter shall include information regarding the criteria for establishing a TDIU on a schedular and extraschedular basis, the evidence required to do so, and the Veteran's and VA's respective duties for obtaining evidence.  It also must discuss how effective dates are assigned.

2.  Then follow established procedure relating to outstanding records.  This shall include requesting updated VA treatment records, if any, regarding the Veteran.  This also shall include requesting that he identify any outstanding pertinent private treatment records or other documentation regarding him and either provide such to VA himself or authorize the release of such to VA.  Associate all records received with the paper or Virtual VA electronic claims file.  If requested records ultimately are not received or are received but are incomplete, notify the Veteran and his representative.  Document the paper or Virtual VA electronic claims file as appropriate in this regard.

3.  If and only if necessary, next arrange for the Veteran to undergo an appropriate VA medical examination complete with a VA medical opinion concerning whether his service-connected disabilities in aggregate were of sufficient severity to render him unemployable prior to December 19, 2005, and unable to secure or follow a substantially gainful occupation beginning February 1, 2007, through February 18, 2010.  Also if and only if necessary, make a referral to the Director of the C & P Service with respect to prior to December 19, 2005.

4.  Finally readjudicate the issue of entitlement to a TDIU prior to February 19, 2010 except for the period from December 19, 2005, to January 31, 2007, to include on an extraschedular basis prior to December 19, 2005, and on a schedular basis beginning February 1, 2007, through February 18, 2010.  If this benefit is granted even partially, furnish him and his representative with a rating decision.  If it is denied even partially, furnish them with a supplemental statement of the case (SSOC) and allow them the requisite time period to respond.  Place a copy of the SSOC in the paper or Virtual VA electronic claims file.

No action is required of the Veteran until he is notified by the RO or AMC.  However, he is advised that his failure to report for a scheduled VA medical examination may result in denial of the benefit sought.  38 C.F.R. § 3.655.  He also is advised that he has the right to submit additional evidence and argument on the issue remanded herein.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  This issue must be addressed promptly.  The law indeed requires that all matters remanded by the Board or by the Court be handled in an expeditious manner.  38 U.S.C.A. §§ 5109B, 7112.



______________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs