Citation Nr: 1335904 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 07-11 755 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for status post medial meniscectomy and chondroplasty of the left knee for the period prior to June 10, 2010. 2. Entitlement to an initial evaluation in excess of 10 percent for arthritis of the left knee for the period prior to June 10, 2010. 3. Entitlement to an initial evaluation in excess of the 60 percent assigned for status-post total left knee replacement from August 1, 2011 to May 3, 2012, and since July 1, 2012. 4. Entitlement to an initial evaluation in excess of 10 percent for arthritis of the right knee, for the period prior to January 4, 2011. 5. Entitlement to an initial evaluation in excess of 10 percent for right knee subluxation or instability, for the period prior to January 4, 2011. 6. Entitlement to an initial evaluation in excess of the 60 percent assigned for status-post total right knee replacement beginning March 1, 2012. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Keyvan, Counsel INTRODUCTION The Veteran served on active duty from February 1985 to February 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In December 2012, the Board remanded the Veteran's claim for further evidentiary development. Specifically, the Board requested that the Agency of Original Jurisdiction (AOJ) 1) retrieve any outstanding private and VA treatment records; and 2) afford the Veteran another VA orthopedic examination to address the nature and severity of the Veteran's service-connected knee disabilities, both currently status post total knee replacement for each knee, and retrospectively for the period between January 2005 and the June 2010 date of total knee replacement of the left knee, as well as the period between January 2005 and the January 2011 date of total knee replacement of the right knee. The Veteran's updated VA treatment records have since been scanned into the Virtual VA claims processing system. In January 2013, the Appeals Management Center (AMC) initiated a request to have the Veteran scheduled for VA examinations of his knees. The examination was completed in February 2013, and a copy of the VA examination report has been associated with the Veteran's claims file. Although the Board finds the February 2013 examination report to be adequate with respect to the Veteran's claims for ratings in excess of 60 percent for the right and left knee disabilities, status-post total left knee replacement and right knee replacement, the Board does not find the medical report to be adequate with respect to his claims seeking ratings in excess of 10 percent for the left knee disability, for the period prior to June 10, 2010; and ratings in excess of 10 percent for the right knee disability, for the period prior to January 4, 2011. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance.) In a May 2013 rating action, the Veteran was granted a disability evaluation of 100 percent after undergoing a left quadriceps reconstruction procedure and a polyethylene liner exchange of the left total knee arthroplasty. This disability evaluation was effective from May 3, 2012 to June 30, 2012. Therefore, this decision will not affect this time period. Although the Board sincerely regrets further delay, another remand with regard to the Veteran's claims seeking higher ratings for his service-connected left knee disabilities prior to the June 2010 left total knee replacement, as well as for his service-connected right knee disabilities for the period prior to the January 2011 right total knee replacement procedures is essential to ensure that the Board remand instructions are complied with and carried out prior to a final adjudication of the claims. As such, these issues are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC in Washington, DC. FINDINGS OF FACT 1. From August 1, 2011 to May 2, 2012 and for the period on and after July 1, 2012, the Veteran's service-connected left knee disability status-post total left knee replacement has been manifested by pain, stiffness, weakness, and limitation of motion; however, it does not represent an exceptional disability picture. 2. Since March 1, 2012, the Veteran's service-connected right knee disability status-post total right knee replacement has been manifested by pain, stiffness, weakness, and limitation of motion; however, it does not represent an exceptional disability picture. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 60 percent for the left knee disability status-post total left knee replacement for the period from August 1, 2011 to May 2, 2012 and from July 1, 2012 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5013A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.68, 4.71a, Diagnostic Code 5055 (2013). 2. The criteria for an evaluation in excess of 60 percent for the right knee disability status-post total right knee replacement since March 1, 2012 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5013A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.68, 4.71a, Diagnostic Code 5055 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist At the outset, the Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008, during the pendency of the appeal. See 73 Fed. Reg. 23353 -56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the Veteran to provide any evidence in the Veteran's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) The Board finds that all notification and development action needed to render a decision on the claims decided herein has been accomplished. Through a July 2005 notice letter, the RO notified the Veteran of the information and evidence needed to substantiate his underlying service connection claims. Thereafter, the Veteran was afforded the opportunity to respond. In addition, the Veteran was provided notice concerning the assignment of rating criteria and effective dates via the March 2006 letter. Although the March 2006 letter was not sent prior to initial adjudication of the Veteran's claim, he was subsequently provided adequate notice and was provided several years to respond with additional argument and evidence, which he did. The claims for a higher rating were readjudicated several times, and a statement of the case (SOC) was issued in March 2007, and supplemental statements of the case (SSOCs) were provided to the Veteran in June 2009, and April 2012. In addition, an April 2012 rating action and May 2013 SSOC addressed the issues of entitlement to a rating in excess of 60 percent for left knee disability status-post left total knee replacement, as well as entitlement to a rating in excess of 60 percent for right knee disability status-post right total knee replacement. See Prickett v. Nicholson 20 Vet. App. 370 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as by an SOC or SSOC, is sufficient to cure a timing defect). Hence, the Board finds that the Veteran has received notice of the information and evidence needed to substantiate his claims, and has been afforded ample opportunity to submit such information and evidence. The Board also finds that the July 2005 notice letters satisfied the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). In the letter, the RO notified the Veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies. The RO also requested that the Veteran identify any medical providers from whom he wanted the RO to obtain and consider evidence. Thus, the Board finds that "the appellant [was] provided the content-complying notice to which he [was] entitled." Pelegrini v. Principi, 18 Vet. App. 112, 122 (2004). In addition, the Veteran was given the opportunity to respond following the July 2005 notice letters. In any event, as is the case here, once a veteran disagrees with an initial determination, other provisions apply to the remainder of the adjudication process, particularly those pertaining to the issuance of rating decisions and statements of the case. See 38 U.S.C.A. §§ 5104(a), 7105(d) (West 2002); 38 C.F.R. §§ 3.103(b)(1), 19.29 (2010); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); see also Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007). Nothing about the evidence or any response to the RO's notification suggests that the case must be re-adjudicated ab initio to satisfy the requirements of the VCAA. The Board also points out that there is no indication that any additional action is needed to comply with the duty to assist in connection with the claims decided herein. The Veteran's service treatment records as well as all identified and available VA and private medical records pertinent to the years after service are in the claims file and were reviewed by both the AOJ and the Board in connection with the Veteran's current claim. Indeed, neither the Veteran nor his representative have referenced outstanding records that they wanted VA to obtain or that they felt were relevant to his claims. Moreover, in addition to obtaining all relevant records, the Veteran was most recently afforded a VA examination for his knee disabilities in February 2013. There is no objective evidence indicating that there has been a material change in the severity of his service-connected knee disorders since the Veteran was last examined. See 38 C.F.R. § 3.327(a) (2013). The duty to assist does not require that a claim be remanded solely because of the passage of time since otherwise adequate VA examinations were conducted. See VAOPGCPREC 11-95. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, the Board finds that both VA examinations obtained in this case are more than adequate, as they were predicated on a review of the Veteran's medical records, an interview with the Veteran, and a discussion of his medical history and because the examination fully addresses the rating criteria that is relevant to rating the disabilities in this case. Thus, there is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to the increased rating issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required by 38 U.S.C.A. §§ 5103(a), 5103A and 38 C.F.R. § 3.159. II. Analysis Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013). The veteran's entire history is reviewed when making disability evaluations. See generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where, as in the case of the Veteran's claim, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a staged rating are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). If evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. Further, "[w]here there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned." 38 C.F.R. § 4.7 (2013). When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use). See 38 C.F.R. §§ 4.40, 4.45 (2013); DeLuca v. Brown, 8 Vet. App. 202, 204 -07 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In VA Fast Letter 06-25 (November 29, 2006), VA's Compensation and Pension Service noted that to properly evaluate any functional loss due to pain, examiners, at the very least, should undertake repetitive testing (to include at least three repetitions) of the joint's range of motion, if feasible. It was determined that such testing should yield sufficient information on any functional loss due to an orthopedic disability. The Veteran's right total knee replacement has been evaluated as 60 percent disabling since March 1, 2012 and his left total knee replacement was evaluated as 60 percent disabling from August 1, 2011 to May 2, 2012 and for the period on and after July 1, 2012. Both of these awards were assigned pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5055, which evaluates impairment from knee replacement (prosthesis). The Veteran contends that he is entitled to ratings in excess of 60 percent for the service-connected right total knee replacement for the period on and after March 1, 2012, as well as for the service-connected left total knee replacement, for the period from August 1, 2011 to May 2, 2012 and from July 1, 2012, due to the severity and frequency of his symptomatology. A 100 percent rating is assigned for one year following implantation of prosthesis. 38 C.F.R. § 4.71a, Diagnostic Code 5055 (2013). A 60 percent rating is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. A 30 percent rating is the minimum rating after knee replacement. Id. Diagnostic Code 5055 does not specifically provide a 50 percent rating, but it states that intermediate degrees of residual weakness, pain or limitation of motion should be rated by analogy to Diagnostic Code 5256 (ankylosis), Diagnostic Code 5261 (limitation of extension), or Diagnostic Code 5262 (impairment of tibia and fibula). Id. The Veteran underwent a left total knee replacement in June 2010 and a right total knee replacement in January 2011. Pursuant to Diagnostic Code 5055, the AOJ assigned a 100 percent rating for the left knee total replacement surgery from June 10, 2010 (date of surgery) to July 31, 2011. A 60 percent rating, which is the maximum available rating under Diagnostic Code 5055, was thereafter assigned from August 1, 2011, the first day after the expiration of the 13-month temporary evaluation. As previously noted above, the Veteran was awarded a 100 percent disability rating for his left knee disability, pursuant to 38 C.F.R. § 4.30, after undergoing a left quadriceps tendon reconstruction procedure and polyethylene liner exchange of the left total knee arthroplasty on May 3, 2012. This rating was assigned from May 3, 2012 and continued until June 31, 2012. A 60 percent rating was thereafter assigned from July 1, 2012. The AOJ also assigned a 100 percent rating for the right total knee replacement surgery from January 4, 2011 to February 29, 2012, and subsequently assigned the next highest rating of 60 percent, effective from March 1, 2012. The Board has considered other potentially applicable diagnostic codes. Schafrath, 1 Vet. App. at 595. The 60 percent evaluation assigned for the right and left knee disabilities, status-post total knee replacement procedures, is the maximum evaluation provided for most knee disabilities. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5256-5263 (2013). The only diagnostic code that provides for a higher evaluation of 80 percent contemplates impairment of the femur due to fracture of the shaft or anatomical neck of the femur, with resulting nonunion and loose motion. 38 C.F.R. § 4.71a, Diagnostic Code 5255 (2013). However, the evidence does not demonstrate any femur fracture, nonunion, or loose motion. At a February 2013 VA examination, physical examination testing revealed no evidence of recurrent patellar subluxation or dislocation, and both anterior (Lachman's test), and posterior (Posterior Drawer test) testing of the right and left knees produced normal results. In addition, the Veteran's knees exhibited normal strength to valgus/varus pressure. Thus, an increased evaluation under this diagnostic code is not warranted. Furthermore, a schedular evaluation greater than 60 percent is prohibited by the "amputation rule," found in 38 C.F.R. § 4.68, which prohibits the assignment of a combined rating for disabilities of an extremity higher than the rating for the amputation at the elective level, were amputation to be performed. Amputation at the elective level would be at thigh level, middle or lower thirds. Amputation at that level warrants only a 60 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5165. In layman's terms, the Veteran cannot receive a higher rating for his replaced knees than for a leg amputated. Accordingly, a schedular rating in excess of 60 percent for the Veteran's service-connected right and left knees, status-post total knee replacement is not warranted. Since the Veteran's left knee disability is evaluated under the highest rating possible pursuant to Diagnostic Code 5055 following the one year period after his June 2010 total left knee replacement, and his right knee disability is evaluated under the highest rating possible under Diagnostic Code 5055 following the one year period after his January 2011 total right knee replacement, the Veteran can only be awarded a rating in excess of 60 percent on an extraschedular basis. The United States Court of Appeals for Veterans Claims (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). First, as a threshold issue, the Board must determine whether the Veteran's disability picture is contemplated by the rating schedule. If so, the rating schedule is adequate and an extraschedular referral is not necessary. If, however, the Veteran's disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second step of the inquiry, that is, whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." These include marked interference with employment and frequent periods of hospitalization. Third, if the first and second steps are met, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. Here, the evidence of record does not reflect that the Veteran's right and left knee disabilities, status-post total knee replacements, are so exceptional as to not be contemplated by the rating schedule. There is no unusual clinical picture presented, nor is there any other factor which takes the disability outside the usual rating criteria. From August 1, 2011 to May 2, 2012, and for the period on and after July 1, 2012, the Veteran's left knee disability, status-post total left knee replacement has been characterized by pain, lack of mobility, weakened movement, and swelling. See January 2012 and February 2013 VA examination reports. However, the Veteran's range of motion of the left knee has been shown to be no worse than 20 to 75 degrees with pain. At the February 2013 VA examination, the VA examiner noted that the Veteran did not experience additional limitation of motion following repetitive movement. It was however noted that the Veteran had functional loss of the left knee, which was demonstrated by less movement than normal, swelling, disturbance of locomotion, and interference with sitting, standing and weight-bearing. The Veteran's muscle strength during extension and flexion of the left knee was shown to be normal, and the Veteran demonstrated normal joint stability of the left knee during the Lachman and Posterior drawer tests. Furthermore, there was no evidence or history of recurrent patellar subluxation, dislocation, or shin splints in the left knee. In addition, the examiner noted that the Veteran exhibited signs of improvement in the knee since undergoing the left quadriceps tendon repair and liner exchange in May 2012. The examiner also took note of an October 2012 treatment note wherein the Veteran's orthopedic surgeon noted that the Veteran had been making steady progress with physical therapy. For the period on and after March 1, 2012, the Veteran's right knee disability, status-post total right knee replacement, has been characterized by ongoing pain, discomfort and restricted movement. However, the Veteran's range of motion in the right knee has been shown to be no worse than 0 to 75 degrees with pain. The February 2013 VA examiner noted that the Veteran did not experience additional limitation of motion following repetitive movement, but did note that the Veteran had functional loss of the right knee, which was demonstrated by less movement than normal, pain on movement, disturbance of locomotion and interference with sitting, standing and weight-bearing. The Veteran demonstrated normal strength during extension and flexion of the right knee, as well as normal joint stability of the right knee. Lachman's testing and the Posterior drawer test produced normal results, and there was no evidence or history of recurrent patellar subluxation, dislocation, or shin splints. The examiner noted that the Veteran occasionally used the cane to walk around The Board acknowledges that the Veteran's left knee symptoms were worse during the January 2012 VA examination. Indeed, the examiner noted that the Veteran had been using a wheelchair to move around and he was unable to stand longer than a few minutes or walk more than a few feet without assistance. In addition, the Veteran reported to experience pain at 45 degrees during extension of the left knee, and was unable to perform repetitive motion in either knee when conducting his range of motion exercises. Furthermore, the Veteran's functional loss was demonstrated by additional factors such as weakened movement, excess fatigability, disturbance of locomotion, deformity, atrophy of disuse, and severe crepitus with extension of both knees. Moreover, the VA examiner was unable to test the Veteran's joint stability due to the severity of his knee pain. However, the Board finds that the effect of this symptomatology was contemplated in the 60 percent disability evaluation assigned for the left knee at that time. Indeed, when comparing the disability pictures with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's experiences are congruent with the disability pictures represented by the already assigned disability ratings. The criteria for the already assigned ratings reasonably described the Veteran's disability level and symptomatology. The Board does not find anything unique or unusual about the Veteran's left knee disability, for the period from August 1, 2011 to May 2, 2012, and for the period on and after July 1, 2012, nor does the Board find anything unique or unusual about the Veteran's right knee disability, for the period on and after March 1, 2012, that would render the schedular criteria inadequate. Accordingly, and based on this evidence, the totality of the evidence of record has not shown that the Veteran's right and left knee symptoms warrant referral for an extraschedular evaluation for his total left knee replacement. The Board has also considered the holding in DeLuca v. Brown, 8 Vet. App. 202 (1995). Because the maximum schedular disability evaluation of 60 percent following the first-year after implantation of the knee prosthesis has been granted for the left knee disability, status-post total knee replacement, and for the right knee disability, status-post total knee replacement, DeLuca considerations are inapplicable to these issues. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (if a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable). The January 2012 VA examiner did identify residual scars on the Veteran's right and left knees as a result of his previous arthroscopic procedures. As such, the Board has also considered whether separate ratings are available for any residual scarring. The VA examiner described a linear scar on the right lower extremity that displayed a slight keloid appearance to the top portion of the scar measuring about 4 centimeters (cm) and was non-tender and hyperpigmented. According to the examiner, the linear scar was 18 cm in length. The examiner also observed a linear scar on the left lower extremity that was hyperpigmented and not manifested by tenderness or breakdown of the skin. According to the examiner, the linear scar was 19 cm in length. A compensable rating under DC 7801, which evaluates impairment for scars other than the head, face, or neck requires that the scar be deep and nonlinear and that it exceed 6 sq. inches (39 sq. cm.). The Veteran's scars do not meet this criteria. A compensable rating under DC 7802 for superficial scars requires that the scars cover an area of 144 square inches (929 sq. cm.), which has not been shown. Scars that are unstable or painful warrant a 10 percent rating under DC 7804. A note under DC 7804 defines an unstable scar as one where, for any reason, there is frequent loss of covering of skin over the scar. The Veteran's scars have not been described as unstable or painful, rendering DC 7804 inapplicable. Lastly, no limitation of function of affected part due to the scar has been shown. So, a rating pursuant to DC 7805 is not warranted. As such, separate compensable ratings for the Veteran's residual scars on either or both knees are not warranted. See 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805. The Board acknowledges statements made by the Veteran during the February 2013 VA examination, wherein he indicated that he no longer worked as a security guard due to his inability to walk far or stand for long periods of time as a result of his bilateral knee pain. The February 2013 VA examiner noted that the Veteran's right and left knee disabilities impacted his ability to work. The United States Court of Appeals for Veterans Claims (Court) has held that any request for a total rating for compensation based on individual unemployability (TDIU), whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but is rather part of the initial adjudication of a claim or as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the Veteran's combined rating for his service-connected disabilities is 100 percent. See 38 C.F.R. §§ 4.16(a), 4.25. In addition, effective July 1, 2012, the Veteran is in receipt of special monthly compensation at the level of 38 U.S.C.A. § 1114(s) and 38 C.F.R. § 3.350(i) on account of left total knee replacement rated 100 percent and additional service-connected disability of right total knee replacement, independently ratable at 60 percent more. Therefore, the Board finds that any potential claim for TDIU benefits is rendered moot because the Veteran is already in receipt of the maximum benefits allowable under the law. As such, the Board finds that the preponderance of the evidence is against the claim for initial evaluations in excess of 60 percent for the left knee disability status-post total knee replacement for the period from August 1, 2011 to May 2, 2012 and on and after July 1, 2012 as well as for the right knee disability status-post total knee replacement for the period on and after March 1, 2012. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to an initial evaluation in excess of 60 percent for status-post total left knee replacement for the period from August 1, 2011 to May 2, 2012 and for the period on and after July 1, 2012 is denied. Entitlement to an initial evaluation in excess of 60 percent for status-post total right knee replacement for the period on and after March 1, 2012 is denied. REMAND In the December 2012 Board remand, it was noted that review of the clinical treatment records leading up to the Veteran's June 2010 left total knee replacement, and January 2011 right total knee replacement called into question the sufficiency and adequacy of medical evaluations designed to address the severity of the reported knee symptoms as objectively and accurately as possible. Specifically, VA examiners for compensation purposes appear to have failed to adequately address the significant question of psychogenic overlay as reflected by the earlier treatment records. Indeed, the January 2012 VA examiner noted that the Veteran continued to experience severe depression and suicidal ideation as a result of his severe knee pain, but did not take into consideration the converse questions of somatoform manifestations of psychogenic overlay of complained-of knee pain. A review of the VA clinical records reflects that the Veteran was hospitalized at the VA Medical Center (VAMC) in Atlanta, Georgia for complaints of persistent depressive symptoms with intense anger and rages. Although his medical work-up noted a history of arthritis and knee pain, the Veteran did not present with complaints of knee pain during the hospitalization intake. To the contrary, during the intake evaluation, the Veteran reported being in no pain, and nursing notes upon initial admission indicated that the Veteran walked frequently, at least twice daily, and at least every two hours inside his room. A social worker evaluation during the January 2007 hospitalization reflects the Veteran's complaints of some pain in his knees, whereas upon a mental health treatment visit five days into his hospitalization, the Veteran stated that his knees were killing him and that this was the only thing wrong with him. In the December 2012 remand, the Board specifically requested that the Veteran be scheduled for a VA orthopedic examination not only to determine the current extent and severity of his bilateral knee disabilities, but also to more adequately consider the degree to which both past and current knee disabilities were actually disabilities of the knees, as opposed to psychogenic overlay or somatoform disorder or other cause. Although the Veteran was afforded a VA examination in February 2013, the examiner only addressed the current nature and severity of his bilateral knee symptoms, and failed to take into consideration the treatment records prior to the June 2010 left total knee replacement surgery and the January 2011 right total knee replacement surgery, so to provide a more accurate determination of the severity of the knee disabilities, as opposed to that which may be psychogenic in origin. Indeed, the examiner did not provide any type of discussion concerning the extent and severity of the Veteran's left knee symptoms for the period prior to June 10, 2010, or the Veteran's right knee symptoms for the period prior to January 4, 2011. The Court has held "that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders." Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, compliance with the terms of the December 2012 remand is necessary prior to further appellate review, and if not, "the Board itself errs in failing to ensure compliance." Id. If VA undertakes the effort to provide the Veteran with a medical examination, it must ensure that such exam is an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In this case, the Board does not find the February 2013 examiner's opinion to be adequate with respect to the Veteran's claims for entitlement to higher initial evaluations for the right and left knee disabilities for the periods prior to the June 2010 and January 2011 knee replacements, as the VA examiner did not follow all the December 2012 remand directives. Since the Board is precluded from reading its own unsubstantiated medical conclusions and is instead, bound by the medical evidence of record on these matters, further development is required. See Jones v. Principi, 16 Vet. App. 219, 225 (2002), citing Smith v. Brown, 8 Vet. App. 546, 553 (1996) (en banc); Colvin v. Derwinski, 1 Vet. App. 171 (1991). In light of the fact that the VA examination did not provide a retrospective discussion of the Veteran's bilateral knee disabilities for the periods prior to the knee replacements, the Board finds that another remand is necessary for a clarifying VA medical opinion which specifically addresses these questions. 38 C.F.R. §3.159 (c) (4). Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the December 2012 VA examiner or (if unavailable) to another qualified orthopedic examiner to determine the nature and severity of the bilateral knee disorder for the period between March 2005 and the June 2010 date of total knee replacement of the left knee, and the period between March 2005 and the January 2011 date of total knee replacement of the right knee. The claims folder, a copy of any medical records on Virtual VA, and a copy of this remand must be made available to, and reviewed by, the examiner. The examiner should specifically take into consideration the January 2007 psychiatric hospitalization records, as well all other clinical records pertaining to the Veteran's psychiatric symptoms. The examiner should also review the pertinent records, to include the August 2005 VA examination report, the October 2006 knee magnetic resonance imaging (MRI) reports, and VA examination reports or official examination reports dated in October 2007, July 2010, November 2011 and January 2012. For the period prior to the June 2010 left total knee replacement, as well as the period prior to the January 2011 right total knee replacement, the examiner should evaluate the nature and extent of disability in each knee in the interval between March 2005 (the date of service connection for the knees) and the date of total knee replacement for each knee (June 2010 left total knee replacement; January 2011 right total knee replacement). The examiner should also address any intervals shown of greater or lesser severity of knee disability for each knee between March 2005 and the present, because staged ratings for disabilities of each knee must also be considered. For the period prior to the June 2010 left total knee replacement, as well as the period prior to the January 2011 right total knee replacement, any psychogenic overlay or somatoform disorder as may be reflected or described as knee pain or knee disability but which does not in fact represent a disability originating in the knee but rather that originating in the head should be addressed, and the assessed level of disability of the knee expressly limited to that extent. For the periods prior to the June 2010 left total knee replacement, as well as the period prior to the January 2011 right total knee replacement, the examiner should address any additional disability pertaining to the right and left knee due to any weakened movement, excess fatigability, or incoordination. An opinion must be provided as to whether any pain found in the right and left knee could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss due to pain on use or during flare-ups. The examiner must provide an opinion on the impact each service-connected knee disability has on the Veteran's ability to work, as well as any resultant limitation of function of each knee. With respect to the Veteran's subjective complaints of pain, the examiner should attempt to distinguish between symptoms caused by each knee disability and symptoms due to other causes. The examiner should provide an explanation for all opinions expressed. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 2. Following completion of the above, readjudicate the issues of entitlement to an initial evaluation in excess of 10 percent for status post medial meniscectomy and chondroplasty of the left knee for the period prior to June 10, 2010; entitlement to an initial evaluation in excess of 10 percent for arthritis of the left knee for the period prior to June 10, 2010; entitlement to an initial evaluation in excess of 10 percent for right knee subluxation or instability for the period prior to January 4, 2011; and entitlement to an initial evaluation in excess of 10 percent for arthritis of the right knee for the period prior to January 4, 2011. If the decisions remain in any way adverse to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) and an appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs