Citation Nr: 1333366 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 09-21 081 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an increased disability rating (evaluation) in excess of 10 percent for left knee degenerative joint disease with chondrocalcinosis. 2. Entitlement to a temporary total rating (evaluation) under 38 C.F.R. § 4.30 based on convalescence following a left knee arthroscopic procedure. 3. Entitlement to an increased rating (evaluation) in excess of 20 percent for radiculopathy of the right lower extremities, L4-L5 and L5-S1. 4. Entitlement to an increased rating (evaluation) in excess of 20 percent for radiculopathy of the left lower extremities, L4-L5 and L5-S1. 5. Entitlement to an increased rating (evaluation) in excess of 10 percent for left-sided disc bulge, L4-5, with paracentral disc protrusion L5-S1, facet hypertrophy at multiple level. 6. Entitlement to an increased rating (evaluation) in excess of 40 percent for bipolar disorder. 7. Entitlement to a total disability rating (evaluation) based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from November 1975 to July 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Board has reviewed the Veteran's physical claims file, as well as the electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. On the June 2009 VA Form 9, the Veteran requested a Travel Board hearing; however, she later withdrew her hearing request in September 2011 and asked that her case be forwarded to the Board for adjudication. In June 2013, the Board remanded the issue of an increased rating for the left knee disability and a temporary total rating under 38 C.F.R. § 4.30 based on convalescence for updated treatment records, records from the Social Security Administration (SSA), and subsequent readjudication of the claims. The issues now return to the Board following the completion of the ordered development and are ready for disposition. The Veteran submitted additional evidence to the Board in October 2013; however, the evidence is pertinent to the back disability, not the left knee disability, and no waiver of the additional evidence is required. 38 C.F.R. §§ 19.9, 20.1304(c) (2013). The Board previously referred the issue of entitlement to payment or reimbursement of unauthorized medical expenses incurred at Coliseum Medical Center on July 27, 2009 to the Agency of Original Jurisdiction (AOJ) for appropriate action. No action has been taken with respect to the claim; therefore, the matter is again referred to the AOJ. The issues of entitlement to: (1) an increased rating for right lower extremity radiculopathy; (2) an increased rating for left lower extremity radiculopathy; (3) an increased rating for a back disability; (4) an increased rating for bipolar disorder; and (5) a TDIU 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. Throughout the rating period, the Veteran's left knee disability has been manifested by mild, intermittent instability. 2. For the portion of the rating period prior to November 9, 2011, the left knee disability has been manifested by degenerative arthritis with painful motion on flexion to a noncompensable degree, and left knee limited flexion of 45 degrees during flare-ups, with occasional swelling, giving way, and stiffness. 3. For the portion of the rating period from November 9, 2011, the left knee limited flexion and associated symptoms such as pain are contemplated in the 20 percent rating for left lower extremity sciatic neuritis. 4. In June 2006, the Veteran was awarded a temporary total rating from August 20, 2005 to October 31, 2005 for the period of convalescence associated with left knee surgery performed on August 18, 2005. 5. The evidence does not show that the Veteran underwent left knee surgery on June 15, 2006. CONCLUSIONS OF LAW 1. The criteria for disability rating in excess of 10 percent for the left knee instability have not been met or approximated for the entire rating period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.71a, Diagnostic Code (DC) 5257 (2013). 2. Giving the benefit of the doubt to the Veteran, the criteria for a separate 10 percent rating for left knee degenerative joint disease with chondrocalcinosis based on painful limited flexion to a noncompensable degree has been approximated for the entire rating period prior to November 9, 2011. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5003-5260 (2013). 3. A separate 10 percent rating for left knee degenerative joint disease with chondrocalcinosis based on painful motion is not warranted from November 9, 2011. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5003-5260 (2013). 4. The criteria for a temporary total disability rating under 38 C.F.R. § 4.30 for convalescence following left knee surgery are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.30 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 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). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, 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). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a statement of the case (SOC) or supplemental statement of the case (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In the September 2008 notice letter sent prior to the initial denial of the increased rating claims, the RO advised the Veteran of what the evidence must show to substantiate the claims, and described the types of information and evidence that the Veteran should submit in support of the claims. The RO also explained what evidence VA was responsible for obtaining or would assist in obtaining on the Veteran's behalf in support of the claims. The RO further explained how VA determines the disability rating. In consideration of the foregoing, the Board finds that VCAA notice requirements were fully satisfied prior to the initial denial of the claims. Regarding VA's duty to assist in claims development, the RO provided the Veteran with VA medical examinations in connection with the claims in October 2008 and May 2011. Collectively, the medical examination reports include all relevant findings and medical opinions needed to evaluate fairly the Veteran's increased rating appeal. The VA examiners considered the history of the left knee disability, as well as the Veteran's subjective complaints as it related to the current symptomatology and its effects on her daily life and performed a thorough physical evaluation of the Veteran, to include x-rays; therefore, the VA medical examiners had adequate facts and data regarding the history and condition of the Veteran's left knee disability when providing the medical opinions. See VAOPGCPREC 20-95 (interpreting that in some cases an accurate history by a veteran may be a valid basis for an examination report rather than claims file review); see also Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran). There has been no allegation or indication that there has been a material change in condition of the Veteran's left knee disability since the last VA medical examination. For these reasons, the Board finds that the medical examination reports are adequate for rating purposes, and there is no need for further medical examination. Also, post-service treatment records adequately identified as relevant to the Veteran's appeal have been obtained or otherwise submitted and are associated with the record. Additional treatment records located in the Virtual VA file were considered by the AOJ in the first instance. Pursuant to the Board's prior remand directive, the AOJ requested that the Veteran provide information regarding treatment she has received for the left knee disability after May 2011 by way of a June 2013 letter. The Veteran responded that she had been receiving treatment for the left knee through VA, and the AOJ obtained updated VA treatment records and added them to the Virtual VA file. Also, pursuant to the prior remand directive, records from SSA were obtained and associated with the claims file. The AOJ readjudicated the claims after the ordered development was accomplished. For these reasons, the Board finds that there was satisfactory compliance with the prior Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). The Veteran has not made the RO or the Board aware of any other evidence relevant to the appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal, and no further development is required to comply with the duty to assist in developing the facts pertinent to the claims decided herein. In view of the foregoing, the Board will proceed with appellate review. Disability Rating Legal Criteria Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40. The factors involved in evaluating, and rating disabilities of the joints include weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; incoordination (impaired ability to execute skilled movements smoothly); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); or pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. In DeLuca v. Brown, 8 Vet. App. 202, 205 (1995), the Court held that, for disabilities evaluated on the basis of limitation of motion, VA was required to apply the provisions of 38 C.F.R. §§ 4.40, and 4.45, pertaining to functional impairment. The Court instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, or incoordination. Such inquiry was not to be limited to muscles or nerves. These determinations were, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. Under 38 C.F.R. § 4.59, with any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to the affected joints. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. Although pain may cause a functional loss, pain itself does not constitute functional loss. Pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Governing regulations include 38 C.F.R. §§ 4.1 and 4.2, which require the evaluation of the complete medical history of a veteran's condition. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability Rating Analysis for the Left Knee Disability Service connection for the left knee disability with a 10 percent disability rating effective July 30, 1977 was awarded in a November 1977 rating decision. The Veteran filed the current increased rating claim in September 2008. For the entire rating period, the left knee disability has been rated at 10 percent under 38 C.F.R. § 4.71a, DC 5257 for slight impairment of the knee manifested by recurrent subluxation or lateral instability. Diagnostic Code 5257 provides for a 10 percent rating when there is evidence of slight impairment of the knee manifested by recurrent subluxation or lateral instability, a 20 percent rating for moderate impairment of the knee manifested by recurrent subluxation or lateral instability, and a 30 percent rating for severe impairment of the knee manifested by recurrent subluxation or lateral instability. 38 U.S.C.A. § 4.71a. After review of the lay and medical evidence of record, the Board finds that it weighs against the assignment of a rating in excess of 10 percent for left knee instability under DC 5257 because the evidence does not show that the Veteran has more than a slight level of impairment due to instability of the left knee. For example, when the Veteran reported left knee instability at the October 2008 VA medical examination, she objectively demonstrated no motion on medial and lateral collateral ligaments testing, less than 5 millimeters of motion on anterior and posterior cruciate ligament testing, and no click was heard on internal or external rotation of the medial and lateral meniscus (i.e., negative McMurray's test). When the Veteran underwent further VA medical examination in May 2011, she denied having left knee instability or episodes of dislocation or subluxation, and no instability was demonstrated on physical examination. Because the Veteran showed either minimal or no motion on all stability tests performed as part of the October 2008 VA medical examination, and the Veteran denied left knee instability and demonstrated a stable left knee at the May 2011 VA medical examination, the VA medical examination reports weigh against finding that the Veteran has greater than a "slight" level of impairment involving the left knee due to instability. Also, treatment records relevant to the rating period routinely show a stable left knee; therefore, the evidence shows slight impairment of the left knee due to mild, intermittent instability, and a rating in excess of 10 percent under DC 5257 for the left knee disability is not warranted for the rating period. When a Veteran is rated for instability of the knee under 38 C.F.R. § 4.71a, DC 5257, such as in this case, a separate rating may be assigned if (1) a veteran also has limitation of knee motion which at least meets the criteria for a noncompensable disability rating under 38 C.F.R. § 4.71a, Diagnostic Code 5260 and/or 5261, or (2) if the veteran is in receipt of a 10 percent rating on the basis of X-ray evidence of arthritis and evidence of painful motion. VAOPGCPREC 23-97, published at 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98, published at 63 Fed. Reg. 56,704 (1998); 38 C.F.R. § 4.59. In this case, the Veteran has degenerative arthritis of the left knee. See, e.g., October 2008 VA medical examination report (including the x-ray report noting an impression of osteoarthritic degenerative changes). Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a. DC 5260 provides for a 0 percent rating when there is flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent evaluation is warranted for flexion limited to 30 degrees. 38 C.F.R. § 4.71a. DC 5261 provides for assignment of a 0 percent rating for extension limited to 5 degrees, a 10 percent rating for extension limited to 10 degrees, a 20 percent rating for extension limited to 15 degrees, a 30 percent rating for extension limited to 20 degrees, a 40 percent rating for extension limited to 30 degrees, and a 50 percent rating for extension limited to 45 degrees. 38 C.F.R. § 4.71a. Normal range of motion for the knee is from 140 degrees flexion to 0 degrees extension. 38 C.F.R. § 4.71, Plate II (2013). After review of the lay and medical evidence in this case, the Board finds that the evidence is in equipoise on the question of whether the criteria for a 10 percent rating under DC 5260 for limitation of leg flexion is warranted for the entire rating period. In order for the Veteran to receive a 10 percent rating under DC 5260, the evidence must show that the service-connected left knee disability is manifested by flexion limited to 45 degrees, or arthritis with noncompensable limitation of flexion with swelling, muscle spasm, or objective evidence of painful motion. At the October 2008 VA medical examination, the Veteran demonstrated limitation of left knee flexion to a noncompensable degree (i.e., to 120 degrees, with pain starting at 90 degrees) with objectively demonstrated painful motion, which approximates the criteria for a 10 percent rating based on arthritis with painful motion to a noncompensable degree. Also, at the October 2008 VA medical examination, the Veteran competently reported that left knee flexion was limited to 45 degrees during flare-ups, and there is no evidence in the record to show that the account is not credible. The Veteran's report of left knee flexion limited to 45 degrees during flare-ups similarly approximates the criteria for a 10 percent rating. At the May 2011 VA medical examination, the Veteran reported swelling and tenderness that affected motion of the joint with flare-ups every two to three weeks for one to two days, and, on physical examination, demonstrated painful motion while flexing the left knee to 130 degrees. The Veteran's report of swelling that affects left knee motion, considered together with the objective demonstration of painful left knee flexion to a noncompensable degree, approximates the criteria for a 10 percent rating under DC 5003-5260. Therefore, in consideration of the foregoing, to include Deluca factors, and resolving reasonable doubt in favor of the Veteran, the Board finds that a separate rating of 10 percent under hyphenated DC 5003-5260 is warranted for the portion of the rating period prior to November 9, 2011. However, a separate 10 percent rating under DC 5003-5260 is not warranted for the portion of the rating period from November 9, 2011, forward. The Veteran is currently in receipt of a 20 percent rating for radiculopathy of the left lower extremities effective November 9, 2011 under hyphenated diagnostic code 8699-8620 for neuritis of the sciatic nerve. Neuritis considers the symptom of pain (see 38 C.F.R. § 4.123 (2013)), and DC 8620 specifically contemplates weakened or lost knee flexion; therefore, the Veteran's pain and limitation of left knee flexion, to include during flare-ups, is contemplated in the 20 percent rating under DC 8620 for this portion of the rating period. In consideration of the foregoing, the Board finds that a separate 10 percent rating under DC 5003-5260 from November 9, 2011 based on limited left knee flexion with painful motion, and left knee flexion limited to 45 degrees during flare-ups, would constitute pyramiding and is prohibited. 38 C.F.R. § 4.14. (Conversely, because knee instability and the resulting functional impairment are not contemplated by DC 8620 for sciatic neuritis, the 10 percent rating for slight impairment of the knee due to left knee instability under DC 5257 does not constitute pyramiding and is not prohibited for the portion of the rating period where the Veteran has a separate rating for sciatic neuritis for the left lower extremity). The Board also notes that separate ratings may be assigned under DC 5260 (limitation of flexion of the leg) and DC 5261 (limitation of extension of the leg). VAOPGCPREC 9-04, published at 69 Fed. Reg. 59,990 (2004). Specifically, where a veteran has both a limitation of flexion and a limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. Id. However, because the evidence in this case does not demonstrate compensable limitation of extension under the schedular criteria, the Board finds that VAOPGCPREC 9-04 is inapplicable in the instant case. After review of the lay and medical evidence of record relevant to the rating period, the Board finds that the weight of the evidence is against finding that a separate disability rating for left knee limited extension is warranted for any period under DC 5261. In order for the Veteran to receive a separate compensable disability rating under DC 5261, the evidence must show that the service-connected left knee disability is manifested by extension limited to 10 degrees or greater. However, the weight of the evidence does not show such a disability picture. At the October 2008 and May 2011 VA medical examinations, left knee extension was 0 degrees, without pain. The Veteran's treatment records relevant to the rating period similarly do not show that left knee extension has been limited to 10 degrees (or to a greater degree). Thus, in consideration of the foregoing, the Board finds that a separate rating for limitation of left knee extension is not warranted under DC 5261 for the entire rating period. Furthermore, no other diagnostic codes pertaining to the knee provide a basis to assign a higher or separate schedular evaluation for the Veteran's knee disability for the rating period. The evidence does not show left knee ankylosis during the rating period; therefore, an increased rating under DC 5256 for knee ankylosis is not warranted. Also, the evidence does not show that there is impairment of the tibia and fibula; therefore, a higher rating under DC 5262 is not warranted for the entire rating period. Additionally, the Veteran is not shown to have genu recurvatum, and the maximum disability rating under DC 5263 is 10 percent; therefore, a higher rating under DC 5263 is not warranted for the entire rating period. Furthermore, the evidence does not show that there has been removal of semilunar cartilage with continued symptoms that are separate and distinct from the symptoms contemplated in the 10 percent ratings under DC 5257 and DC 5260 (see 38 C.F.R. § 4.14), or that there is semilunar dislocated cartilage with frequent episodes of locking, pain, and effusion into the joint; therefore, a higher or separate rating under either DC 5258 or DC 5259 is not warranted for the rating period. The Board has further considered whether the increased rating appeal for the left knee disability warrants referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321; Thun v. Peake, 22 Vet. App. 111 (2008). The schedular criteria for rating disabilities of the knee reasonably describe all symptoms and functional impairment associated with the Veteran's knee disability. The Veteran's left knee disability has been manifested by degenerative arthritis with painful limitation of motion on flexion, left knee limited flexion of 45 degrees during flare-ups, mild instability, occasional swelling, giving way, and stiffness. The 10 percent schedular rating under DC 5257 and the 10 percent schedular rating under DC 5003-5260 collectively contemplate such symptomatology and the resulting functional impairment. The schedular rating criteria specifically provide ratings for limitation of motion due to painful arthritis (Diagnostic Codes 5003, 38 C.F.R. § 4.59), and contemplate ratings based on limitation of motion (Diagnostic Codes 5256, 5260, 5261), including motion limited by factors such as pain, weakness, and stiffness (38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca). The 10 percent ratings are based on limited flexion and instability, and consider functional impairment, to include as due to Deluca factors. In consideration of the foregoing, the Board finds, after comparing the functional impairment and symptoms manifested by the Veteran to the schedular criteria for the current ratings, that the Veteran's left knee symptoms and related functional impairment are fully contemplated in the current 10 percent schedular ratings; therefore, because the schedular rating criteria are adequate to rate the Veteran's service-connected left knee disability, no extraschedular referral is warranted in this case. Temporary Total Rating under 38 C.F.R. § 4.30 The Veteran seeks a temporary total disability rating under 38 C.F.R. § 4.30 for convalescence following left knee surgery purportedly performed on June 15, 2006. See September 2008 VA Form 21-4138. A total disability rating will be assigned following a hospital discharge or outpatient release, effective from the date of hospital admission or outpatient treatment and continuing for a period of one, two, or three months from the first day of the month following such hospital discharge or outpatient release if the treatment of a service-connected disability resulted in one of the following: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one or more major joints, application of a body cast, or the necessity for house confinement or continued use of a wheelchair or crutches (regular weight bearing prohibited); or (3) immobilization by cast, without surgery, of one or more major joints. 38 C.F.R. § 4.30(a)(1)-(3). After review of the lay and medical evidence, the Board finds that the weight of the evidence is against the award of a temporary total rating under 38 C.F.R. § 4.30 for left knee surgery. In this case, the Veteran alleges that she underwent left knee surgery on June 15, 2006. When she filed the claim in September 2008, she stated that she had attached evidence to support the claim, which showed how long her rehabilitation and recovery had been following the surgery. The submitted medical evidence, however, does not show that the Veteran underwent left knee surgery on June 15, 2006. Rather, the evidence shows that the Veteran had left knee surgery on August 18, 2005. In June 2006, the Veteran previously received a temporary total rating under 38 C.F.R. § 4.30 effective August 20, 2005 to November 1, 2005 for the left knee surgery performed on August 18, 2005 and the subsequent convalescence period. See June 2006 rating decision. The treatment record dated June 15, 2006 shows a follow-up visit with a history of left knee scope dated August 18, 2005; however, no surgery is shown to have been performed on that date. See also November 2005 treatment record (similarly noting that the main reason for the appointment was a follow-up to the left knee scope). In addition, the Veteran has provided inconsistent statements regarding when the left knee surgery for which she seeks a temporary total rating was purportedly performed. For example, at the November 2009 VA mental disorders examination, the Veteran reported having had meniscus tear repair in 2006. However, at the October 2008 VA medical examination, the Veteran reported that she had arthroscopic surgery to repair the meniscus and clean the cartilage surface in 2007. The evidence submitted by the Veteran shows left knee surgery in August 2005 with several follow-up appointments, to include on June 15, 2006. It does not show that left knee surgery was performed on June 15, 2006. Because the Veteran's lay account of a left knee surgery that purportedly took place on June 15, 2006 is inconsistent with the medical evidence, as well as other statements provided by the Veteran, it is not credible and of no probative value. Therefore, the Veteran has not provided credible evidence of left knee surgery performed on June 15, 2006. Instead, the evidence of record shows that she had left knee surgery in August 2005 for which she has previously received a temporary total rating under 38 C.F.R. § 4.30. For these reasons, the Board finds that the weight of the evidence is against the award of a temporary total rating under 38 C.F.R. § 4.30; therefore, the claim must be denied. ORDER A rating in excess of 10 percent for slight left knee impairment due to instability is denied. A separate 10 percent rating for left knee degenerative joint disease with chondrocalcinosis based on painful limited flexion to a noncompensable degree, for the portion of the rating period prior to November 9, 2011, is granted. A separate 10 percent rating for left knee degenerative joint disease with chondrocalcinosis based on painful motion, from November 9, 2011, is denied. A temporary total disability rating under 38 C.F.R. § 4.30 for convalescence following left knee surgery performed on June 15, 2006 is denied. REMAND Increased Ratings for Lower Extremity Radiculopathy, Back, and Bipolar Disorder In a May 2013 rating decision, the AOJ denied increased ratings for the Veteran's right lower extremity radiculopathy, left lower extremity radiculopathy, back disability, and bipolar disorder. In August 2013, the Veteran submitted a Notice of Disagreement (NOD) to the AOJ, and noted that she disagreed with the disability ratings assigned for her back and legs, as well as the bipolar disorder. See 38 U.S.C.A. § 7105(b)(2) (West 2002); 38 C.F.R. § 20.201 (2013). Because the August 2013 NOD regarding the above-listed issues was received by the AOJ within the appeal period, it is timely. 38 U.S.C.A. § 7105. The Veteran's Virtual VA folder includes a letter to the Veteran from the RO acknowledging receipt of her NOD regarding the May 2013 rating decision. See September 2013 letter. However, an SOC has not yet been issued with respect to the increased rating claims. Because a timely NOD has been submitted, a remand is required in order to provide the Veteran with an SOC. See Manlincon v. West, 12 Vet. App. 238 (1999) (holding that Board should remand for issuance of SOC when NOD has been timely filed); 38 U.S.C.A. § 7105(d)(1). Thereafter, the Veteran must submit a timely substantive appeal in order for these issues to be perfected for appeal to the Board. 38 U.S.C.A. § 7105. TDIU The issue of entitlement to a TDIU has been raised by the record in this case. Rice v. Shinseki, 22 Vet. App. 447 (2009). The SSA records show that the Veteran filed for disability benefits in August 2012 due to several conditions, including back problems, the left knee disability, and bipolar disorder. See Disability Determination Explanation. For these reasons, the Board finds that a TDIU is raised as part of the increased rating appeal for the left knee disability, and a remand for appropriate notice and development is warranted. Accordingly, the increased rating claims for right lower extremity radiculopathy, left lower extremity radiculopathy, a back disability, and bipolar disorder, and a TDIU are REMANDED for the following actions: 1. Provide the Veteran with proper notice explaining how to substantiate a claim for entitlement to a TDIU, to include which information and evidence that she is to provide, and which information and evidence that VA will attempt to obtain on her behalf. Allow an appropriate time for response. 2. After any additional development deemed necessary is undertaken, to include consideration of whether providing a VA medical examination and/or obtaining a VA medical opinion is/are warranted, adjudicate the claim for a TDIU. If any benefit sought on appeal remains denied, provide a SSOC with an appropriate period of time for response by the Veteran and the representative. Thereafter, return the case to the Board for further appellate consideration, if in order. 3. The AOJ should issue an SOC addressing the remanded increased rating claims. The Veteran and the representative should also be advised that, for the Board to have jurisdiction in the matter, a timely substantive appeal responding to the SOC must be filed. Should the Veteran or the representative submit a timely substantive appeal, the matter should be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This 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. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs