Citation Nr: 1337384 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 04-40 739 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a compensable disability rating for service-connected left knee traumatic arthritis (left knee disorder) prior to November 12, 2003. 2. Entitlement to a disability rating in excess 10 percent for service-connected left knee disorder from November 12, 2003, to November 18, 2008. 3. Entitlement to a disability rating in excess of 30 percent for service-connected left knee disorder from November 18, 2008. 4. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran had active duty from September 1982 to August 1986. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2001 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In that rating decision, the RO continued a previously assigned noncompensable rating for the Veteran's service-connected left knee traumatic arthritis. After determining it had jurisdiction over this matter, the Board remanded the case for further development in June 2007. That development was completed, and the case was returned to the Board for appellate review. The Board subsequently remanded the case for further development in July 2010. After that development was completed, the case was again returned to the Board for appellate review. VA medical records dated from July 2007 to May 2012 were added electronically to Virtual VA in July 2012 after the February 2012 Supplemental Statement of the Case without a waiver of RO review. However, these records involve treatment for disabilities other than the left knee as well as continued complaints of left knee pain. Consequently, as this evidence is not pertinent or is essentially duplicative, this case does not need to be remanded for RO review. 38 C.F.R. § 20.1304 (2013). On September 11, 2012, the Board issued a decision that denied the Veteran's increased rating claims. In January 2013, the Veteran's representative filed a motion to vacate and reconsider. In July 2013, the Board vacated the Board decision issued on September 11, 2012. The issues of entitlement to a disability rating in excess of 30 percent for service-connected left knee disorder from July 11, 2009, and entitlement to a TDIU rating 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. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. For the time period prior to November 12, 2003, residuals of left knee traumatic arthritis were manifested by X-ray evidence of degenerative changes involving the left knee joint, pain, and limitation of motion. 2. For the time period from November 12, 2003, to July 9, 2008, residuals of left knee traumatic arthritis continued to be manifested by degenerative changes of the left knee joint, pain, and limitation of motion. 3. For the time period from July 10, 2008, through July 10, 2009, residuals of left knee traumatic arthritis status post total knee arthroplasty have been manifested by prosthetic replacement of the left knee joint. CONCLUSIONS OF LAW 1. For the time period prior to November 12, 2003, the criteria for the assignment of a 10 percent rating, but no higher, for left knee traumatic arthritis have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5260 (2013). 2. For the time period from November 12, 2003, to July 9, 2008, the criteria for a rating in excess of 10 percent for left knee traumatic arthritis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5260 (2013). 3. For the time period from July 10, 2008, through July 10, 2009, the criteria for the assignment of a 100 percent rating for residuals of left knee traumatic arthritis status post total knee arthroplasty have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). 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. 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). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Board finds that the VCAA duty to notify was satisfied by letters sent to the Veteran in December 2001, June 2007, and August 2010 with regard to the claims for increased evaluations for the Veteran's service-connected left knee disability. The letters addressed all of the notice elements and was sent both prior to and after the initial unfavorable decision by the AOJ in March 2002. Thereafter, the Veteran's claims were readjudicated by the AOJ in a February 2012 supplemental statement of the case (SSOC). Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). The duty to assist was also met in this case. The RO and AMC have obtained service treatment records and all pertinent VA and private treatment records. The Veteran submitted multiple written statements discussing his contentions. Neither the Veteran nor his representative has identified any outstanding pertinent evidence related to his claims. In June 2007 and July 2010, the Board remanded these matters to obtain additional VA medical examinations and additional private treatment records. VA examinations and a VA medical opinion as well as private treatment records were subsequently added to the claims files. Consequently, there has been substantial compliance with the June 2007 and July 2010 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the United States Court of Appeals for Veterans Claims (Court) or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders); see Dyment v. West, 13 Vet. App. 141 (1999) (holding that remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with remand directives). The Veteran was also provided with VA examinations in December 2001 and June 2009 for his service-connected left knee disability. The Board finds the VA examination reports to be thorough and adequate upon which to base a decision with regard to the Veteran's claims. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his service-connected left knee disability under the applicable rating criteria. There is also no objective evidence indicating that there has been a material change in the severity of the Veteran's left knee disability since the June 2009 VA examination. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. VAOPGCPREC 11-95. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Laws and Regulations Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2 (2013), and to resolve any reasonable doubt regarding the extent of the disability in the veteran's favor. 38 C.F.R. § 4.3 (2013). If there is a question as to which evaluation to apply to the veteran's disability, 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 (2013). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2013). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board further acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following matter is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. In a February 1987 rating decision, the RO granted entitlement to service connection for left knee traumatic arthritis, assigning a noncompensable (zero percent) rating under Diagnostic Code 5010, effective August 16, 1986. In January 2001, the Veteran filed a claim seeking an increased evaluation for his left knee disorder. The RO continued the assigned noncompensable rating for that disability in a March 2002 rating decision. The Veteran filed a notice of disagreement in April 2002 and a statement of the case (SOC) was issued in July 2002. Based on the description of the correspondence sent and received by RO after it issued the SOC on the left knee claim, the Board noted in the June 2007 Remand that appellate review was initiated by an NOD and completed by a substantive appeal after an SOC is issued. 38 U.S.C.A. § 7105(d); 38 C.F.R. § 20.200; Roy v. Brown, 5 Vet. App. 554, 555 (1993). In this case, the Board found that the Veteran did not file a substantive appeal after the SOC was issued regarding the left knee claim. However, the Board concludes that the letter sent to him by the RO in September 2002 informing him that, at that time, "[t]he only issue you have on appeal is the knee" may have been confusing to him and may have caused him and his representative to think that the substantive appeal had already been filed. Accordingly, in fairness to the Veteran, the Board construed the statements received from the Veteran and his representative in November and December 2002 as a timely filed substantive appeal with the March 2002 rating decision which denied an increased (compensable) rating for his service-connected traumatic arthritis of the left knee. Based on the foregoing, the Board determined it had jurisdiction of the claim. In a January 2010 rating decision, the AMC assigned the following disability ratings for the Veteran's service-connected left knee disorder (characterized as left knee traumatic arthritis status post total knee arthroplasty) under Diagnostic Code 5055, to include a 10 percent rating from November 12, 2003, and a 30 percent rating from November 18, 2008. Since the granted increases do not constitute a full grant of the benefits sought for the time periods on appeal, the increased rating issues remain in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). As noted above, on September 11, 2012, the Board issued a decision that denied all three of the Veteran's claims for increased left knee evaluations. The Board also determined that, although the Veteran had a left knee replacement in 2008, that disorder was not part of his service-connected left knee disorder. It was noted that service connection was in effect for arthritis of the left knee by rating decision in February 1987 which did not include a knee replacement. Although in January 2010 a VA examiner noted that the knee injuries in service caused knee arthritis that progressed and eventually led to left knee replacement, this opinion was prior to VA's obtaining medical records contemporaneous with the left knee replacement, which were added to the claims files in 2011 as a result of the July 2010 Board Remand. According to the January 2012 VA medical opinion, which was based on a review of these records, the left knee replacement was not associated with the Veteran's service-connected left knee arthritis because the Veteran reported during hospitalization in July 2008 that his left knee pain began after a fall at work in June 2007 and was subsequently aggravated when a case of beets fell on the knee. In January 2013, the Veteran's representative filed a motion to vacate and reconsider. He argued that the Board committed an error of fact when it held that the Veteran's left knee replacement surgery was not part of his service-connected left knee disability. It was noted that the Veteran underwent a left total knee arthroplasty in 2008. The representative highlighted that in a January 2010 rating decision the RO rated the Veteran's left knee disability under Diagnostic Code 5055 as "traumatic arthritis, left knee, status post, total knee arthroplasty". He argued that service connection was conceded and established by the RO at that time. It was also indicated that there was no action to sever service connection for left knee replacement and that the Veteran's left knee disability continues to be rated under Diagnostic Code 5055. He concluded that an equitable appellate decision required an assessment of the complete left knee disability. Based on the divergent nature of the VA medical opinions of record regarding whether the Veteran's service-connected left knee disability included his total left knee replacement residuals, the actions of the RO in including total knee arthroplasty as part of the Veteran's service-connected left knee disability and rating the disability under the rating criteria for knee replacement, and the persuasiveness of assertions of the Veteran's representative, the Board resolved all doubt in the favor of the Veteran and included the residuals of the total knee arthroplasty as part of his service-connected left knee disability. Thereafter, in July 2013, the Board vacated the Board decision issued on September 11, 2012. The matters listed on the title page of the decision have now been returned to the Board for reconsideration. Diagnostic Code 5010 states that arthritis, due to trauma, substantiated by X-ray findings, is to be rated as degenerative arthritis under Diagnostic Code 5003. Under Diagnostic Code 5003, the severity of degenerative arthritis, established by X-ray findings, is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints affected, which in this case would be Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg). When there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation-of-motion code, a 10 percent rating will be assigned for each affected major joint or group of minor joints. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is warranted if there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2013). Under Diagnostic Code 5256, a 30 percent disability evaluation is assigned for ankylosis of the knee, favorable angle in full extension, or in slight flexion between 0 and 10 degrees. A 40 percent rating is assigned when there is extremely unfavorable ankylosis in flexion between 10 and 20 degrees. A 50 percent rating is warranted when there is extremely unfavorable ankylosis in flexion between 20 and 45 degrees. A 60 percent rating is warranted when there is extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more. 38 C.F.R. § 4.71a, Diagnostic Code 5256 (2013). Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Colayong v. West, 12 Vet App 524 (1999) (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONALRY (28TH Ed. 1994) at 86). Under Diagnostic Code 5257, a 10 percent disability evaluation is contemplated when other impairment of the knee, recurrent subluxation or lateral instability, is mild. A 20 percent disability evaluation is contemplated when such impairment is moderate. A 30 percent disability evaluation is assigned when such impairment is severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2013). The words slight, moderate, and severe as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6 (2013). It should also be noted that use of terminology such as severe by VA examiners and others, although an element to be considered by the Board, is not necessarily dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2013). Under Diagnostic Code 5258, a 20 percent disability evaluation is assigned for dislocated semilunar cartilage, with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258 (2013). Under Diagnostic Code 5259, a 10 percent disability evaluation may be assigned for removal of semilunar cartilage that is symptomatic. 38 C.F.R. § 4.71a, Diagnostic Code 5259 (2013). Under Diagnostic Code 5260, a 10 percent disability evaluation is warranted when flexion of the leg is limited to 45 degrees. A 20 percent disability evaluation is warranted when flexion is limited to 30 degrees. A 30 percent disability evaluation is warranted when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2013). Under Diagnostic Code 5261, a 10 percent disability evaluation is warranted when extension is limited to 10 degrees. A 20 percent disability evaluation is warranted when extension is limited to 15 degrees. A 30 percent disability evaluation is warranted when extension is limited to 20 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2013). Under Diagnostic Code 5262, impairment of the tibia and fibula with malunion is rated as 10 percent with slight knee or ankle disability, 20 percent with moderate knee or ankle disability, or 30 percent with marked knee or ankle disability. A 40 percent evaluation is assigned for nonunion of the tibia and fibula with loose motion, requiring brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2013). Standard range of knee motion is from 0 degrees (extension) to 140 degrees (flexion). 38 C.F.R. § 4.71, Plate II (2013). VA Office of General Counsel has provided guidance concerning increased rating claims for knee disorders. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). VA General Counsel has stated that compensating a claimant for separate functional impairment under Diagnostic Code 5257 and 5003 does not constitute pyramiding. VAOPGCPREC 23-97 (July 1, 1997). VA General Counsel held in VAOPGCPREC 23-97 that a veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, provided that a separate rating must be based upon additional disability. When a knee disorder is already rated under Diagnostic Code 5257, the veteran must also have limitation of motion under Diagnostic Code 5260 or 5261 in order to obtain a separate rating for arthritis. If the veteran does not at least meet the criteria for a zero percent rating under either of those codes, there is no additional disability for which a rating may be assigned. In VAOPGCPREC 9-98, the VA General Counsel also held that if a veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also X-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. Given the findings of osteoarthritis, the General Counsel stated that the availability of a separate evaluation under Diagnostic Code 5003 in light of sections 4.40, 4.45, and 4.59 must be considered. Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Absent X-ray findings of arthritis, limitation of motion should be considered under Diagnostic Codes 5260 and 5261. Painful motion may add to the actual limitation of motion so as to warrant a rating under Diagnostic Codes 5260 or 5261. The VA General Counsel further noted in VAOPGCPREC 9-98 that the removal of the semilunar cartilage may involve restriction of movement caused by tears and displacements of the menisci, but that the procedure may result in complications such as reflex sympathetic dystrophy, which can produce loss of motion. Therefore, limitation of motion is a relevant consideration under Diagnostic Code 5259, and the provisions of 4.40, 4.45, and 4.59 must be considered. In addition, the VA General Counsel has held that separate ratings may be assigned under Diagnostic Code 5260 and Diagnostic Code 5261 for disability of the same joint. VAOPGCPREC 9-2004 (September 17, 2004). Pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5055, the Schedule provides the rating criteria for the prosthetic replacement of a knee joint. Under this code, for one year following implantation, the knee joint warrants an evaluation of 100 percent. Thereafter, where there are chronic residuals consisting of severe painful motion or weakness in the affected extremity, a 60 percent evaluation is warranted. Where there are intermediate degrees of residual weakness, pain or limitation of motion, the disability is rated by analogy to Diagnostic Codes 5256, 5261, or 5262. The minimum assigned evaluation under this code is 30 percent. Id. 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 examinations 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 enervation, 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. §§ 4.10, 4.40, 4.45 (2013). The RO must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The guidance provided in DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered. Pain alone does not constitute functional loss under VA regulations that evaluate disabilities based upon loss of motion. Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Actually painful, unstable, or malaligned joints, due to healed injury, are as entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59 (2013); see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 is not limited to arthritis). The Court has held that "within a particular diagnostic code, a claimant is not entitled to more than one disability rating for a single disability unless the regulation expressly provides otherwise. To find otherwise would permit absurd results - compensation twice for the same condition ..."). See Cullen v. Shinseki, 24 Vet. App. 74, 84 (2010); see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that separate ratings for limitations of both flexion and abduction of the shoulder were not permitted as this impairment arose from one disability). In the selection of diagnostic codes assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With injuries and diseases, preference is to be given to the number assigned to the injury or disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27 (2013). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. See Butts v. Brown, 5 Vet. App. 532 (1993). When all the evidence is assembled, the determination must be made as to whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Factual Background and Analysis I. For the Time Periods Prior to July 10, 2008 In his January 2001 claim, the Veteran reported that he suffered from a left leg disorder. When examined by VA in December 2001, the Veteran did not have any knee complaints. There was no history of ongoing pain, weakness, stiffness, swelling, instability, locking, fatigability, or diminished endurance. His gait was described as normal, and range of motion of the left knee was from 0 to 120 degrees, with a 5 degree valgus deformity. There was no tenderness, synovitis, subluxation, or effusion. There was bilateral subpatellar crepitus without complaint of discomfort with flexion/extension maneuver or with patellar compression. X-rays dated in December 2001 showed degenerative changes. The impression was bilateral symptomatic chondromalacia patella with no history of any significant left knee injury. In a February 2002 statement, the Veteran complained of pain radiating into his left leg. According to March 2002 records from Sports Therapy Inc., bilateral lower extremity strength was noted to be within functional limits. Left knee flexion was listed as 100/110 degrees. The Veteran was noted to have limited functional tolerances for stooping, kneeling, and stair climbing. It was indicated that stooping resulted in increased reports of lumbar and left knee pain and stair climbing resulted in reports of discomfort in the left leg. In a September 2002 electromyography report from Jewish Hospital, the Veteran complained of left leg pain particularly near the left knee. VA treatment reports dated from November 2003 to September 2009 were associated with the record. In November 2003, the examiner noted bilateral knee pain, left greater than right, likely patellar chondromalacia. In February 2006, the Veteran complained of pain in the knees and back of 3/10. Mercy Ambulatory Surgical Center records dated in December 2007 revealed that the Veteran underwent arthroscopic chondroplasty of the patellofemoral joint, medial femoral condyle, lateral femoral condyle, and trochlear grove, as well as medial and lateral meniscectomies and arthroscopic extensive synovectomy due to degenerative joint disease of the left knee with chondromalacia and medial and lateral meniscal tears on December 21, 2007. The post-operative diagnoses were tricompartment chondromalacia, loose joint bodies, medial and lateral meniscal tears, and extensive synovitis. After a review of the evidence, the Board finds that the evidence does support the assignment of a 10 percent rating for left knee traumatic arthritis for the time period prior to November 12, 2003. Evidence of record during the time period prior to November 12, 2003, clearly demonstrated that the Veteran's service-connected left knee traumatic arthritis was manifested by X-ray evidence of degenerative changes involving the left knee joint, noncompensable limitation of motion, and satisfactory evidence of pain and discomfort in the left knee/leg when stooping and climbing stairs. However, at no point during the appeal period prior to July 10, 2008, was the Veteran entitled to the assignment of a rating in excess of 10 percent for his service-connected left knee traumatic arthritis. The Veteran underwent meniscectomies on his left knee during this time period during a December 2007 surgical procedure. Under 38 C.F.R. § 4.71a, Diagnostic Code 5259, a 10 percent rating may be assigned for the removal of semilunar cartilage when the knee remains symptomatic. Symptoms may include, swelling, popping, locking, giving way sensation, or catching. In this case, evidence of record does not show any of these symptoms during this time period. As noted above, limitation of motion is a relevant consideration under Diagnostic Code 5259, and the provisions of 4.40, 4.45, and 4.59 must also be considered. In this case, no more than a 10 percent rating is assignable under Diagnostic Code 5010 for arthritis affecting a major joint. In order to warrant a rating in excess of 10 percent for arthritis, compensable limitation of motion must be shown. However, evidence of record during these time periods demonstrated normal extension and flexion of 100 degrees or more on all occasions. As such, at no time during the these periods of the Veteran's appeal has he demonstrated compensable limitation of motion in his left knee based on either limitation of extension or limitation of flexion to warrant the assignment of a rating in excess of a 10 percent under 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. In addition, there is no evidence in the record of any findings of effusion, ankylosis, dislocated semilunar cartilage, recurrent subluxation or lateral instability, tibia or fibula impairment, or genu recurvatum for the assignment of any higher or separate ratings under alternative rating criteria. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5257, 5258, 5262, and 5263. At no time during the course of the appeal has the evidence shown knee impairment with recurrent subluxation or lateral instability in the left knee that meets the criteria for any increased or separate compensable evaluation under Diagnostic Code 5257 throughout these time periods. A rating was also considered under 38 C.F.R. § 4.71a, Diagnostic Code 5258. A rating of this nature requires pain, locking, and effusion in the knee. Here, the evidence clearly shows pain but no effusions or locking reported during this time period. Consequently, the assignment of evaluation in excess of 10 percent for the Veteran's left knee disability based upon any of these diagnostic codes is not warranted during the time period prior to July 10, 2008. The Board further finds that there is no basis for the assignment of a higher rating based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. at 204-7. Evidence reflects that the currently assigned 10 percent rating properly compensates him for the extent of functional loss resulting from symptoms like painful motion. The Board is fully cognizant that the Veteran has consistently reported pain associated with his service-connected left knee disability. His subjective complaints have included knee pain and functional limitation. However, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain, may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. The Board has considered the factors regarding pain and functional loss noted above. Here, however, the weight of the evidence is against a finding that painful motion or limitation of motion on repetitive use or during flare-ups results in functional loss warranting the assignment of any increased evaluation during this time period. Evidence of record also does not reflect any findings of functional loss greater than that contemplated by the assigned 10 percent rating during this time period. In sum, after a careful review of the evidence of record, the Board finds that a rating in excess of 10 percent for residuals of left knee traumatic arthritis is not warranted for the time period prior to July 10, 2008. II. For the Time Period from July 10, 2008, to July 10, 2009 Bethesda Trihealth Good Samaritan hospital reports for July 2008 reveal a history of left knee pain after a fall at work in June 2007 which was aggravated when a case of beets fell on the left knee. Examination prior to the surgery revealed left knee crepitus on motion from 5 to 90 degrees. The Veteran had tenderness, mild effusion, and mild quadriceps atrophy. Left knee arthritis was diagnosed. The Veteran underwent left total knee replacement on July 10, 2008, and was noted to tolerate the procedure well. Post-operative diagnosis was left knee arthritis. Left knee pain was noted in a November 2008 VA treatment record to be 4/10. Also noted in November 2008 were complaints of chronic left knee pain, even after left knee replacement last July, as well as a history of bilateral knee pain due to patellar chondromalacia, with left knee arthroscopy on December 21, 2007, and a total knee replacement on July 10, 2008. Treatment reports from Sports Therapy Inc., dated from December 2008 to April 2009, reveal that the Veteran was given physical therapy for his left knee. It was noted in December 2008 that pain remained from 2-4/10 level of intensity. Active range of motion was listed as extension to -7/0 degrees (previous) and -6/0 degrees (current) as well as flexion limited to 102/135 degrees (previous) and 104/135 degrees (current). It was reported in April 2009 that the Veteran had completed the program. He continued to report symptoms of knee pain at 6/10 level of intensity. Active range of motion was within normal limits except for flexion limited to 105/135 degrees. Strength remained limited as follows: left quadriceps (4+/5); hamstrings (5-/5); hip abduction (5-/5); and hip flexion (4+/5). Treatment reports from Tristate Orthopaedic Treatment Center, dated from January 2009 to June 2009, reveal that the Veteran had left knee range of motion of approximately 95 degrees. In June 2009, the private physician indicated that the Veteran had good motion at this point to 100 degrees, dramatically improved swelling, and reported concern that the Veteran had soft tissue discomfort. The Veteran complained on VA evaluation in June 2009 of gradually increasing pain over the years. He said that he had injured his left knee in 2000 when he fell down some stairs. The examiner noted that the Veteran was quite sedentary and worked as a local truck driver prior to his total knee replacement. The Veteran indicated that he could no longer drive because of knee pain. He reported constant, sharp left knee pain, 10/10, with weakness, stiffness, swelling, and flare-ups when he twisted his knee. He used a cane for ambulation. There was no recurrent dislocation or subluxation. He had increasing left knee pain when he had to stand or walk for more than 15 minutes. On physical evaluation, the Veteran walked very slowly with a cane. He had a limp that favored his left leg. There was marked weakness of the left knee flexion and extension of 3/5; range of motion was from 0 to 90 degrees; and marked tenderness along the medial and lateral joint line of the left knee with a small effusion present. A vertical anterior scar over the left knee was noted to be eight inches in length by one-half inch at its greatest width. The scar was reported to be nontender and flesh colored with no skin breakdown, ulceration, keloid formation, or adherence to or defects in the underlying structures. Range of motion and weakness were unchanged after repetitive motion against resistance. Diminished range of motion was noted to be due to a combination of pain, weakness, and lack of endurance. There was no ligament laxity and no incapacitating episodes since the left knee replacement. X-rays showed a stable left total knee prosthesis and a small effusion of the left knee joint. The impressions were degenerative arthritis of the knees and total left knee replacement in 2008. The examiner initially noted that he was not provided the claims file for review. He later concluded that it was less likely as not that the left knee injury in service caused the subsequent development of left knee arthritis leading to knee replacement. It was indicated that left knee arthritis was most likely due to age, obesity, and injury that occurred in 2000. Under 38 C.F.R. § 4.71a, Diagnostic Code 5055, the rating criteria for the prosthetic replacement of a knee joint specifically indicate that a 100 percent evaluation is to be assigned for one year following implantation. The Board has determined that the Veteran's left total knee replacement residuals are part of his service-connected left knee disability. Thus, a 100 percent rating must be assigned for the time period from July 10, 2008 (the date of the Veteran's total left knee replacement surgery) through July 10, 2009. III. Additional Considerations for Left Knee Increased Rating Claims The Board has considered additional staged ratings, under Hart v. Mansfield, 21 Vet. App. 505 (2007), but concludes that they are not warranted. Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. 38 C.F.R. §§ 4.20, 4.27 (2013). However, because the ratings are based on the average impairment in earning capacity, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. 38 C.F.R. § 4.1. Nonetheless, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2013). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available scheduler evaluations for that service-connected disability are inadequate. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned scheduler evaluation is, therefore, adequate, and no referral is required. The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render the assigned 10 and 100 percent ratings inadequate. The Veteran's service-connected left knee disability is evaluated pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5260, and 5055, the criteria of which is found by the Board to specifically contemplate the level of occupational and social impairment caused by this disability. When comparing this disability picture 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 10 percent and 100 percent disability ratings during the time periods discussed above. Increased ratings are provided for by the regulations for certain manifestations, but the medical evidence demonstrates that those manifestations are not present during the time period prior to July 10, 2008. The criteria for 10 percent and 100 percent evaluations reasonably describe the Veteran's disability level and symptomatology throughout the pendency of this appeal. Consequently, the Board concludes that the scheduler evaluations are adequate and that referral of the Veteran's case for extraschedular consideration is not required. See 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5260, and 5055; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996). ORDER For the time period prior to November 12, 2003, a 10 percent rating is granted for service-connected left knee traumatic arthritis, subject to the laws and regulations governing payment of monetary benefits. For the time period from November 12, 2003, to July 9, 2008, entitlement to a rating in excess of 10 percent for service-connected left knee traumatic arthritis is denied. For the time period from July 10, 2008, through July 10, 2009, a 100 percent rating is granted for service-connected residuals of left knee traumatic arthritis status post total knee arthroplasty, subject to the laws and regulations governing payment of monetary benefits. REMAND Reasons for Remand: To obtain updated VA treatment records as well as to obtain a current VA examination and medical opinion. As an initial matter, the Board notes that the Veteran last had a VA joints examination evaluating his left knee in November 2010. VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991); see also Snuffer v. Gober, 10 Vet. App. 400 (1997). Accordingly, the RO/AMC should arrange for the Veteran to undergo a VA joints examination at an appropriate VA medical facility to determine the severity of his service-connected left knee disability after undergoing a total left knee replacement. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part and parcel of an increased rating claim when raised by the record. The Board has jurisdiction to consider the Veteran's possible entitlement to TDIU in this circumstance when the issue is raised by assertion or reasonably indicated by the evidence and is predicated at least in part on the severity of the service-connected disability in question, regardless of whether the RO has expressly addressed this additional issue. See VAOPGCPREC 6-96 (Aug. 16, 1996). See also Caffrey v. Brown, 6 Vet. App. 377 (1994); Fanning v. Brown, 4 Vet. App. 225, 229 (1993); EF v. Derwinski, 1 Vet. App. 324 (1991). After review of the claims files in January 2010, the VA examiner who evaluated the Veteran in June 2009 opined that the Veteran was unable to engage in employment requiring prolonged standing, walking, or lifting because of his bilateral knee arthritis. However, the examiner indicated that the Veteran could perform sedentary employment. According to a November 2010 VA examination report, the Veteran indicated that he last worked in 2007 as a truck driver and stopped working due to a left knee injury. Based on foregoing, the Board finds that the issue of entitlement to TDIU has been raised and must be remanded for initial development. The RO/AMC should elicit information concerning the Veteran's full work and educational history as well as obtain an additional VA medical opinion to clarify whether the Veteran's service-connected left knee disability renders him unable to secure or follow a substantially gainful occupation. Finally, the claims file also reflects that the Veteran has received medical treatment for his service-connected left knee disability from the VA Medical Center (VAMC) in Cincinnati, Ohio; however, as the claims file only includes records from that facility dated up to May 2012, any additional records from that facility should be obtained. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC should consider whether the Veteran is entitled to TDIU under the provisions of 38 C.F.R. § 4.16, based on impairment attributable to his service-connected left knee disability, to include sending the Veteran an application for TDIU (VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability)) and an appropriate VCAA notification letter. In so doing, the RO/AMC may decide to pursue further development of the Veteran's employment history, or obtain additional medical evidence, as is deemed necessary. 2. The RO/AMC should obtain updated treatment records pertaining to the Veteran's service-connected left knee disability from the Cincinnati VA Medical Center for the time period from May 2012 to the present and associate them with the claims file. 3. Arrange for the Veteran to undergo a VA joints examination with an appropriate examiner (preferably a physician) to determine the current severity of his service-connected left knee disability. All indicated studies, including X-rays and range of motion studies in degrees, must be conducted, and all findings must be reported in detail. The claims file, copy of this REMAND, and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and all pertinent Virtual VA records have been reviewed. All necessary special studies or tests must be accomplished. The examiner must conduct full range of motion studies on the service-connected left knee. The examiner must first record the range of motion on clinical evaluation, in terms of degrees with a goniometer. If there is clinical evidence of pain on motion, the examiner must indicate the specific degree of motion at which such pain begins. The same range of motion studies must then be repeated after at least three repetitions and after any appropriate weight-bearing exertion. Then, after reviewing the Veteran's complaints and medical history, the examiner must render an opinion as to the extent to which the Veteran experiences functional impairments, such as weakness, excess fatigability, lack of coordination, or pain due to repeated use or flare-ups, etc. Objective evidence of loss of functional use can include the presence or absence of muscle atrophy and/or the presence or absence of changes in the skin indicative of disuse due to the service-connected left knee disability. Furthermore, the examiner should state whether any pain associated with the left knee disability could significantly limit functional ability during flare-ups, noting the specific degree of additional range of loss of motion during flare-ups. If such information cannot be feasibly determined, the examiner must explain why this information cannot be provided. The examiner should also specify as to whether the Veteran has chronic left knee residuals consisting of severe painful motion or weakness. Although it is the responsibility of the VA rating specialist to determine, based on all the relevant evidence of record--including reports of examination, outpatient treatment records, lay statements, letters from employers, and evidence pertaining to the Veteran's educational background and employment history--whether the Veteran is unable to obtain or retain substantially gainful employment in light of his service-connected disability alone, the VA examiner must address the extent of functional and industrial impairment due to the Veteran's service-connected left knee disability. It is the examiner's responsibility to furnish a full description of the effects of the service-connected disability upon the Veteran's ordinary activities which include employment. See 38 C.F.R. § 4.10. This description may include an opinion on such questions as whether a claimant's condition precludes standing for extended periods, lifting more than a certain weight, sitting for eight hours a day, or performing other specific tasks. Moore v. Nicholson, 21 Vet. App. 211, 219 (2007) (the ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom. Moore v Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. The Veteran must be advised of the importance of reporting to the scheduled VA examination and of the possible adverse consequences, to include the denial of his claims, of failing, without good cause, to so report. 38 C.F.R. § 3.655 (2013). A copy of the notification letter sent to the Veteran advising him of the time, date, and location of the scheduled examination must be included in the claims folder, and must reflect that it was sent to his last known address of record. If he fails to report, the claims folder must indicate whether the notification letter was returned as undeliverable. 5. Thereafter, the RO/AMC must review the claims folder to ensure that the foregoing requested development has been completed. In particular, review the requested medical examination and opinion to ensure that it is responsive to and in compliance with the directives of this REMAND and if not, implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completion of the above and any additional development deemed necessary, readjudicate the issues on appeal including entitlement to TDIU, with consideration of all evidence obtained since the issuance of the February 2012 SSOC. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate SSOC and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. 2013). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs