Citation Nr: 1335664 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 08-31 982 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington THE ISSUES 1. Entitlement to an increased rating for the Veteran's right knee disability prior to July 3, 2013. 2. Entitlement to an increased rating for the Veteran's right knee disability as of July 3, 2013. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran had active service from November 1961 to July 1965. This appeal initially came to the Board of Veterans' Appeals (Board) from an October 2007 rating decision which denied an increased rating for the Veteran's right knee. In October 2011, the Board also denied the Veteran's claim. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court). In November 2012, the Court vacated the Board decision and remanded the Veteran's claim for action consistent with the directives of a joint motion for remand (JMR). In May 2013, the Board remanded the Veteran's claim to comply with the directives of the JMR. The directed development has been completed, and because the Board's order was fully complied with, there is no prejudice for the Board to proceed. See Stegall v. West, 11 Vet. App. 268 (1998). Following the completion of the development ordered by the Board, the RO assigned two additional, separate ratings for the Veteran's service connected right knee. However, because one of the ratings potentially violates the amputation rule, the Board has separated the claim into two separate issues as listed on the title page of this decision. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. It is noted that VA treatment records were posted to Virtual VA in September 2013 and no supplemental statement of the case was provided thereafter. However, the records describing the Veteran's right knee were entirely duplicative of records posted in May 2013, and before the claim was readjudicated in August 2013. As such, a waiver of Agency of Original Jurisdiction (AOJ) consideration is not required. In April 2012, the Veteran filed a claim seeking service connection for a left shoulder disability as secondary to his service connected right knee disability. In May 2013, the Board referred this issue to the AOJ for appropriate action. To date, it is unclear whether any action has been taken, and the issue is once again referred to the AOJ for appropriate action. In the September 2013 brief, the Veteran's representative appeared to raise several other issues, but this is not clear: First he suggested that the Veteran's previously denied claims for service connection for back and left knee disabilities as secondary to the Veteran's right knee disability should be reopened, submitting treatise evidence in support of his contentions. The representative also suggested that the Veteran's diabetes mellitus was either caused or aggravated by his service connected right knee disability. As such, these three issues are referred to the AOJ of appropriate action. In this regard, it is suggested that the Veteran, working with his representative, write a single definitive list of remaining claims to avoid further delay in the adjudication of his case and then avoid, if possible, filing any additional claims as this will delay the adjudication of the Veteran's other claims. Finally, the representative in the September 2013 brief appeared to be arguing that an earlier effective date should be granted or that a clear and unmistakable error (CUE) had been met (this is also unclear). However, a CUE claim must be clearly spelled out and must explain what specific rating decision is being disagreed with. This has not been done. If it is the Veteran's intent to file either an effective date or CUE claim, it should be clearly spelled out and submitted to the RO. However, no further action will be taken by VA on such issues until and unless such an argument is advanced. The issue of service connection for a increased right knee rating as of July 3, 2013 is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to July 3, 2013, the evidence of record shows that the Veteran had range of motion in his right knee from at least 0-90 degrees, even considering functional limitation from such factors as pain, weakness, stiffness, fatigability, and lack of endurance 2. The evidence of record has not shown severe lateral instability or severe recurrent subluxation in the Veteran's right knee. 3. The Veteran does not have ankylosis in his right knee or impairment of the tibia and fibula. 4. The Veteran's right knee meniscus has been removed. CONCLUSION OF LAW The criteria for an increased right knee rating prior to July 3, 2013 have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.71, 4.71a, DCs 5256-5262 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Diagnostic Codes relevant to knee disabilities include 5003, 5010 and 5256 through 5261. Under Diagnostic Codes 5003 and 5010, arthritis established by x-ray findings is rated on the basis of limitation of motion of the affected joints. When however, the limited motion of the specific joint or joints involved would be noncompensable under the appropriate diagnostic codes, a 10 percent rating is assigned for each involved major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. 38 C.F.R. § 4.71a. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Diagnostic Code 5256, which evaluates ankylosis of the knee, assigns a 30 percent rating for favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees. A 40 percent rating is assigned when there is ankylosis of the knee in flexion between 10 and 20 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5256. Diagnostic Code 5257 evaluates recurrent subluxation or lateral instability of a knee, and assigns a 10 percent disabling for a slight impairment, 20 percent disabling for a moderate impairment, and 30 percent disabling for a severe impairment. Diagnostic Code 5257 is not predicated on loss of range of motion. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). When semilunar cartilage is dislocated with frequent episodes of locking, pain and effusion into the joint a 20 percent rating is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5258. When semilunar cartilage has been removed, but remains symptomatic, a 10 percent rating is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Additionally, General Counsel Opinion 9-98 directs that with respect to Diagnostic Code 5259, limitation of motion is a relevant consideration and the provisions of 38 C.F.R. § 4.40 and 4.45 therefore must be considered. Under Diagnostic Code 5260, a 10 percent rating is assigned when flexion is limited to 45 degrees; a 20 percent rating is assigned when flexion is limited to 30 degrees; and a 30 percent rating is assigned when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261 (limitation of extension of the leg), a zero percent rating is assigned when extension is limited to 5 degrees; a 10 percent rating is assigned when extension is limited to 10 degrees; a 20 percent rating is assigned when extension is limited to 15 degrees; a 30 percent rating is assigned when extension is limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is assigned when extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The Board notes that separate ratings under Diagnostic Code 5260 and Diagnostic Code 5261 may be assigned for disability of the same knee joint. See VAOPGCPREC 9-2004. Additionally, VAOPGCPREC 23-97 held that a claimant who has both arthritis and instability of the knee may receive two separate disability ratings under Diagnostic Codes 5003-5010 and Diagnostic Code 5257 (or under Diagnostic Codes 5258-9) without violating the prohibition of pyramiding of ratings. It was specified that, for a knee disorder already rated under Diagnostic Code 5257, a claimant would have additional disability justifying a separate rating if there is limitation of motion under Diagnostic Code 5260 or Diagnostic Code 5261. At the outset, it is noted that the Board issued a decision in this case in October 2011. This decision concluded that a rating in excess of 20 percent for locking, pain, effusion, and instability/subluxation was not warranted. The Board also concluded that a 10 percent rating should be assigned based on limitation of flexion and degenerative joint disease. No additional increased ratings were found to be warranted by the Board after consideration of the evidence of record. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court) who vacated the Board's decision in November 2012 and remanded it for compliance with a JMR. The JMR did not voice any objection to the Board's range of motion analysis. Rather, the JMR directed the Board to consider whether separate ratings should be warranted under Diagnostic Codes 5257 and 5258, suggesting that the symptoms contemplated by each Diagnostic Code did not overlap. In May 2013, the Board remanded the Veteran's claim. The RO subsequently assigned a separate 20 percent rating under Diagnostic Code 5257 as of the date of the Veteran's claim, and a 40 percent rating for limitation of extension which was made effective the first day such limitation was shown, July 3, 2013. As explained in the introduction, the Board's focus in the reasons and bases portion of this decision will focus on whether an increased rating is warranted from the date of the Veteran's claim until July 3, 2013. Turning first to the range of motion in the knee, it is noted once again that no objection was voiced in the JMR to the Board's conclusion that only a 10 percent rating was warranted based on limitation of motion of the Veteran's right knee. During the course of his appeal, and prior to July 2013, the Veteran had the range of motion in his right knee measured on several occasions. At a VA examination in August 2007, the Veteran demonstrated range of motion from 0 to 110 degrees with pain beginning at 110 degrees. The joint function was additionally limited by pain, fatigue, weakness, lack of endurance, with pain having the major functional impact, after repetitive use. Repetitive motion did not cause incoordination. The examiner estimated that the Veteran had an additional loss of motion of 10 degrees of flexion with repetitive use. However, even with this 10 degree loss of flexion, the Veteran still had 100 degrees of flexion. In an August 2009 VA treatment record, it was noted that the Veteran had unrestricted range of motion with active flexion and extension. The Veteran underwent a second VA examination in March 2011. The Veteran demonstrated range of motion from 0 to 110 and from 0 to 100 with repetitive motion. The joint function was additionally limited after repetitive use by pain, with pain having the major functional impact. The joint function after repetitive motion was not limited by fatigue, weakness, lack of endurance, or incoordination. At an orthopedic consultation in December 2012, the Veteran demonstrated flexion in his right knee to 90 degrees. As such, the Veteran repeatedly demonstrated range of motion in his right knee prior to July 2013 that exceeded the requirements for a higher rating based on either limitation of flexion or limitation of extension (that is a compensable rating for extension or a rating in excess of 10 percent for flexion). The Board has considered whether a higher disability evaluation was warranted at any time during the course of the Veteran's appeal on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In this regard, the Veteran is currently rated at 10 for limitation of flexion; a rating which was assigned in recognition of the fact that while he did not have compensable limitation of flexion but did have pain and arthritis. As such, the Board had concluded that he was entitled to the minimal compensable rating of 10 percent. See 38 C.F.R. § 4.59. However, a higher rating is not warranted as it was not shown that the Veteran's right knee was functionally limited to compensable level. The VA examinations performed repetitive motion testing, but while the Veteran's right knee motion was minimally decreased by these tests, it was not to such a degree to warrant a higher rating. For example, after repetitive motion, in March 2011, the Veteran still had range of motion from 0-100 degrees. One the Veteran's main complaints throughout the course of his appeal is pain, and there is no question that he experiences right knee pain. However, knee pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). Rather, 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. Id. at 43; see 38 C.F.R. § 4.40. Here, the medical professionals considered the impact of repetitive motion and other potentially limiting factors, but even after repetitive motion, the Veteran's range of motion was not shown to be limited to a compensable level for either extension or flexion. As such, a higher rating was not shown to be warranted based on limitation of motion prior to July 2013. The Board will now turn to a discussion of instability/subluxation. As noted, the JMR directed that consideration should be given as to whether a separate compensable rating was warranted for instability under Diagnostic Code 5257. Following the Board's remand, the RO assigned a separate 20 percent rating for moderate instability of the Veteran's right knee as of the date his claim was received. As such, the Board will focus on whether a 30 percent rating is warranted when there is severe recurrent subluxation or severe lateral instability As was acknowledged in the May 2013 remand, the evidence of record does show some evidence of right knee instability during the course of the Veteran's appeal. At his August 2007 VA examination, the Veteran described some giving way in his right knee. The examiner found no subluxation, and stated that anterior and posterior cruciate ligaments stability tests of the right knee were within normal limits, as were medial and lateral meniscus tests of the right knee. Medial and lateral collateral ligaments stability tests of the right knee were abnormal, showing slight instability. In his August 2008 notice of disagreement, the Veteran stated that he disagreed with the conclusion that he had only mild instability. He then pointed to evidence that was outside of the appeal period to suggest that he has chronic instability. At a VA rehabilitation consultation in August 2009, the Veteran denied any buckling, but stated that his right knee was unstable. The medical professional noted that the Veteran had been using a medial off-loading brace, but she did not appreciate "excessive laxity" with anterior drawer testing and found that right knee stability appeared comparable to the unaffected left knee. She then referred the Veteran to outpatient physical therapy to work on knee stabilizing exercises. Following these exercises, the Veteran's right knee instability, to the extent it existed before, appeared to resolve. For example, in a February 2011 treatment records, it was noted that the Veteran's right knee was observed to be stable. At a subsequent VA examination in March 2011, the Veteran again complained of giving way, but the examiner reported in the objective findings portion of the examination report that there were no signs of instability or subluxation. However, in the diagnosis section of the examination, the examiner diagnosed the Veteran with status post medial meniscectomy right knee with laxity, noting that the Veteran used a brace on ambulation for stability. At his hearing in September 2011, the Veteran stated that his right knee had not given out in the previous year, qualifying that he could not really move around like he used to, and adding that when he was more active, his right knee would go out quite often. In June 2012, the Veteran fell from a ladder after his knee reportedly gave way. At an orthopedic consultation in December 2012, valgus/varus stresses were stable. There were loose endpoints to ACL/PCL via drawer/Lachman testing. McMurray testing was positive to varus stress. The Veteran reported using a brace for six years which had provided good stability. The Board concluded that a VA examination was warranted to determine whether the Veteran had chronic right knee instability. The examiner was asked to assess the presence or absence of any lateral instability and/or recurrent subluxation in the right knee. In July 2013, the Veteran underwent a VA examination at which he reported that his right knee felt weak and unstable and would tend to "roll out" or buckle if he turned too quickly or climbed a ladder. The Veteran stated that his knee had been wobbly and would buckle and the condition had worsened since 2007. The Veteran reportedly underwent stabilizing exercises in 2009 to strengthen his quadriceps. The examiner stated that the generic wording of the VA examination in 2011 made it difficult to determine if there was any instability in 2011. Lachman test of anterior instability was 1+ (mildly positive), posterior drawer test was normal. Medial-lateral instability was 1+ (mildly positive). The examiner found no evidence or history of recurrent patellar subluxation or dislocation. The Veteran wore a DonJoy brace to assist with feelings of instability. The examiner explained that the Veteran's right knee was unstable at times due to a combination of arthritic pain and mild laxity of his ACL, MCL, and LCL ligaments. The examiner added that the mild laxity of the ligaments alone was not enough to cause instability, but because it was accompanied by pain, the knee tended to buckle and wobble. In total, the examiner concluded that the instability was mild, but intermittently moderate. Given the conclusion that the Veteran's instability was intermittently moderate, the RO assigned a rating for moderate instability for the duration of the Veteran's appeal. The Board will not alter this rating, but finds no basis to award a higher rating for instability. As described above, while it has been acknowledged that the Veteran had right knee instability, there has not been any suggestion that the instability is severe, and recent objective testing showed only mild ligament instability. Moreover, in the JMR it was only suggested that the Veteran had mild or moderate instability. As such, a rating for severe instability or subluxation is not warranted. Other Diagnostic Codes may also be assigned in the context of a knee disability. Here, there has been no suggestion of ankylosis in the right knee and Diagnostic Code 5256 is therefore inapplicable. The Board has also considered the application of Diagnostic Code 5258, which provides solely for the assignment of a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking", pain, and effusion into the joint. Semilunar cartilage is synonymous with the meniscus. However, as noted, the Veteran already receives the highest (20 percent) rating under this Diagnostic Code. Diagnostic Code 5259 was considered, but while the Veteran's meniscus was removed in the 1970s, he has continued to receive a 20 percent rating for his meniscus impairment under Diagnostic Code 5258. As such, a separate 10 percent rating is not warranted pursuant to Diagnostic Code 5259 as it would result in pyramiding. There has also not been any indication of impairment of the tibia and fibula so as to warrant a rating under Diagnostic Code 5262. Therefore, as discussed, the criteria for a higher schedular knee rating prior to July 3, 2013 have not been met, and the Veteran's claim is denied. The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. This means that initially there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. In this case, the medical evidence fails to show anything unique or unusual about the Veteran's right knee disability that would render the schedular criteria inadequate. The rating criteria reasonably describe the Veteran's knee related symptomatology in that the ratings assigned contemplate, pain, limitation of motion, instability, arthritis, and the impact of functional limitation. Accordingly, referral for consideration of an extraschedular rating is not warranted. The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. Here, it has been found that the Veteran's right knee does impact his employability, but it has not been alleged that his right knee disability renders him unemployable. Moreover, prior to July 2013, it was not shown that the Veteran was specifically claiming the highest possible schedular rating for his knee. Thus, the Board finds that Rice is inapplicable. Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The Board notes that the Veteran's status has been substantiated. The Board observes that in an August 2007 letter, the RO provided the Veteran with notice that informed him of the evidence needed to substantiate his claim. The letter also told him what evidence he was responsible for obtaining and what evidence VA would undertake to obtain. The letter further told him to submit relevant evidence in his possession. The Court has also held that that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In this case, the Veteran was also provided with notice as to the disability rating and effective date elements of the claim in the August 2007 letter. Moreover, there was no allegation that the Veteran was in any way prejudiced by any notice deficiency in his appeal to the court. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Thus, adjudication of his claim at this time is warranted. VA has a duty to assist a veteran in the development of the claim. This duty includes assisting the Veteran 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. In this case, all evidence necessary to decide this claim has been obtained, including VA treatment records. No relevant records have been identified, but not sought. The Veteran has also been afforded several VA examinations. The Veteran's history, and as well as the necessary findings to properly rate the Veteran's disability, were set forth in the examination reports. As such, the VA examinations performed in conjunction with the Veteran's claim are deemed to be adequate to properly decide the Veteran's current appeal. The Board notes that the Veteran has indicated his dissatisfaction with at least one VA examination report and the way the examination was conducted, to include the lack of x-rays taken at the time of the examination. However, the objective medical findings contained in the report are more than sufficient to properly rate the Veteran's claim. Moreover, he has undergone multiple VA examinations since that time which he has not objected to. As to the lack of x-rays, the Board notes that the Veteran was found to have degenerative joint disease on previous x-rays taken in conjunction with his claim. The Board has taken this into account when rating the Veteran's current claim and this has provided a basis for a separate rating based upon limitation of flexion. Therefore, the taking of additional x-rays at the time of the March 2011 examination was not necessary as it would not provide a basis to grant a higher evaluation as arthritis has already been conceded and taken into consideration. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of his statements and arguments presented by his representative. He also appeared at a hearing before the undersigned Veterans Law Judge and gave testimony in support of his claim. For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide the appeal. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to assist the Veteran in substantiating this claim. ORDER An increased rating for the Veteran's right knee disability prior to July 3, 2013 is denied. REMAND 38 C.F.R. § 4.68, known as the "Amputation rule", provides that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level were amputation to be performed. The regulation gives the example that the combined evaluations for disabilities below the knee shall not exceed the 40 percent evaluation, diagnostic code 5165. This 40 percent rating may be further combined with evaluation for disabilities above the knee but not to exceed the above the knee amputation elective level. Simply stated, the Veteran cannot receive more compensation for his knee that a Veteran without a knee. With regard to the lower extremity, a 60 percent rating is the highest rating available for an amputation of the leg, but only when the amputation is not improvable by a prosthesis that is controlled by natural knee action (Diagnostic Code 5164). When the amputation of the lower extremity is at a lower level that permits the use of a prosthesis a 40 percent rating is assigned (Diagnostic Code 5165). In this case, the Veteran currently is assigned four separate disability ratings for his right knee: a 20 percent rating under Diagnostic Code 5258 for meniscus impairment since 1977, a 20 percent rating for instability since June 2007, a 10 percent rating for limitation of flexion under Diagnostic Code 5003 since 2007, and a 40 percent rating for limitation of extension, effective July 3, 2013. The Veteran's combined rating for his right knee (his only service connected disability) is 40 percent from June 2007 and 70 percent from July 2013 as listed on the Codesheet that accompanied the August 2013 rating decision. Given the apparent conflict with the amputation, the Board believes that the issue should be remanded to the Agency of Original Jurisdiction (AOJ) for appropriate review with regard to the rating as of July 2013. Accordingly, the case is REMANDED for the following actions: Adjudicate the issue of an increased rating for the Veteran's right knee disability as of July 3, 2013, giving specific consideration to the application of the "amputation rule". Following an appropriate time for response, the Veteran's claim should be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs