Citation Nr: 1337602 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 06-10 102 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE 1. Entitlement to an evaluation in excess of 20 percent prior to October 5, 2009, for residuals of right knee chondro-fragment excision. 2. Entitlement to an evaluation in excess of 10 percent prior to October 5, 2009, for degenerative joint disease of the right knee. 3. Entitlement to an evaluation in excess of 60 percent as of December 1, 2010, for right knee disability, following a total right knee replacement. ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran had active military service from July 1973 to July 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. A June 2005 rating decision continued a 20 percent disability rating for excision of a chondro-fragment of the right knee, and a 10 percent disability rating for degenerative joint disease of the right knee. In February 2006, the RO granted entitlement to service connection for tinnitus, effective March 31, 2005, and increased the Veteran's disability rating for hearing loss as of October 26, 2005. In a September 2007 rating decision, the RO increased the Veteran's disability rating for his hearing loss to 80 percent as of August 13, 2004. In November 2007, the RO granted entitlement to a total disability rating based on individual unemployability (TDIU), effective March 20, 2006. In December 2008, the Board granted an earlier effective date for an increased rating for hearing loss, denied an earlier effective date for the grant of entitlement to service connection for tinnitus, and remanded the issues of entitlement to higher ratings for excision of a chondro-fragment of the right knee and for degenerative joint disease of the right knee, for entitlement to an earlier effective date for the grant of TDIU, and whether there was clear and unmistakable error (CUE) in a December 13, 1999 rating decision assigning the effective date for the grant of service connection for hearing loss. In a July 2010 rating decision, the RO granted a temporary evaluation of 100 percent beginning on October 5, 2009 for convalescence from a right total knee replacement, with a 60 percent disability rating in effect beginning December 2, 2010 for status post right total knee replacement. This 60 percent disability rating replaced the prior disability ratings of 20 percent for excision of a chondro-fragment of the right knee and 10 percent for degenerative joint disease of the right knee. In addition, in the July 2010 rating decision, the RO granted special monthly compensation based on housebound criteria being met from October 5, 2009, to November 30, 2010. In a January 2012 rating decision, the RO found that special monthly compensation based on housebound criteria being met was continued effective December 1, 2010. In July 2012, the Board denied an effective date earlier than March 20, 2006, for the grant of TDIU, and found that there was no CUE in a December 13, 1999 rating decision assigning the effective date for the grant of service connection for hearing loss. In addition, the Board remanded the issues of entitlement to increased evaluations for residuals of right knee chondro-fragment excision and degenerative joint disease of the right knee prior to October 5, 2009 and for right knee disability as of December 1, 2010. These issues are now again before the Board. FINDINGS OF FACT 1. Prior to October 5, 2009, the Veteran's residuals of right knee chondro-fragment excision were not manifested by severe recurrent subluxation or lateral instability. 2. Prior to October 5, 2009, the Veteran's degenerative joint disease of the right knee was not manifested by limitation of flexion to 30 degrees. 3. Beginning December 1, 2010, the Veteran's status post total right knee replacement is at the maximum schedular rating for this disability, and has not met the criteria for an extraschedular evaluation. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for right knee chondro-fragment excision, prior to October 5, 2009, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.71a, Diagnostic Code 5257 (2013). 2. The criteria for an evaluation in excess of 10 percent for degenerative joint disease of the right knee, prior to October 5, 2009, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.71a, Diagnostic Code 5260-5010 (2013). 3. The criteria for an evaluation in excess of 60 percent for a right knee disability following right total knee replacement, beginning December 1, 2010, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.71a, Diagnostic Code 5257 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) defined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran was provided with letters dated in April 2005 and June 2008 that, collectively, provided him with the notice required by the VCAA, and met the criteria set out in Dingess and Vazquez-Flores. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield, 444 F.3d 1328; see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). To the extent that this notice was provided after the initial AOJ decision, any timing defect was cured by the subsequent issuance of supplemental statements of the case, most recently in April 2013. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). Post-service medical records have been associated with the claims file. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board remanded this case in December 2008 in order to request that the Veteran provide information with regard to all health care providers who had provided him with medical care pertinent to the claims on appeal and to provide the Veteran with a VA examination to determine the current nature and severity of his service-connected knee disability. The Veteran was provided with a VA examination in March 2010, which assessed his right knee disability following his October 2009 right total knee replacement. The Board finds that the examination was adequate because, as shown below, it was based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because the report describes the disability in detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). In its July 2012 remand, the Board noted that the Veteran had not been provided with a letter requesting him to identify any additional healthcare providers who had treated him for his service-connected disabilities. As such, in July 2012, the Appeals Management Center (AMC) sent such a letter to the Veteran. The Veteran has not responded to this letter. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Increased rating-laws and regulations Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"); Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For the period prior to prior to October 5, 2009, the Veteran's right knee disability was rated at a 20 percent disability rating under Diagnostic Codes 5257, pertaining to recurrent subluxation or lateral instability, and at a 10 percent disability rating under 5260-5010, pertaining to arthritis and limitation of flexion. According to Diagnostic Code 5257, a 20 percent rating will be assigned with evidence of moderate recurrent subluxation or lateral instability and a 30 percent rating will be assigned with evidence of severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under Diagnostic Code 5010, arthritis, due to trauma, as substantiated by x-ray findings, is rated as degenerative arthritis under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Diagnostic Code 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2013). When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, Diagnostic Code 5003 provides a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. Id. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. Id. The Diagnostic Codes that focus on limitation of motion of the knee are Diagnostic Codes 5260 (limitation of flexion) and 5261 (limitation of extension). Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5260, a 10 percent rating will be assigned for limitation of flexion of the leg to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the leg to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the leg to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. VA's Office of General Counsel has stated that compensating a claimant for separate functional impairment under Diagnostic Codes 5257 and 5003 does not constitute pyramiding. VAOPGCPREC 23-97 (July 1, 1997). In this opinion, the VA General Counsel held 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 is based upon additional disability. Subsequently, in VAOPGCPREC 9-98 (Aug. 14, 1998), the VA General Counsel further explained 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. VA regulations also instruct that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. Notably, the Court has held that pain alone does not equate with functional loss under 38 C.F.R. §§ 4.40 and 4.45 but may cause functional loss if affecting some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Painful motion with joint or periarticular pathology and unstable joints due to healed injury are recognized as productive of disability entitled to at least a minimal compensable rating for the joint. 38 C.F.R. § 4.59. The application of 38 C.F.R. § 4.59 is not limited to arthritis-related claims. Burton v. Shinseki, 25 Vet. App. 1 (2011). Background and analysis Residuals of right knee chondro-fragment excision and degenerative joint disease of the right knee prior to October 5, 2009 A January 2006 VA joints examination reflected the Veteran's reports that he had undergone surgery shortly after discharge from active duty to remove a bone chip from his right knee. He reported that he worked at FedEx, and that he was on his feet. He indicated that he had constant knee pain which was a 5/10 most days, but was a 7/10 when it was cold and damp. He also had daily swelling and used a brace for his knee. He indicated that he had instability in his right knee, and that his knee would give out occasionally. He had no incoordination, increased limitation with flare-ups or repetitive motion, excess fatigability or weakened movements. Upon examination, he could flex the knee actively to 70 degrees, with an additional 5 degrees of passive flexion, all with pain. Extension was to 0 degrees. The examiner noted that he appeared to have an effusion and that he had marked crepitation. The Veteran had a centimeter shift on varus and valgus stress. A February 2006 magnetic resonance imaging study (MRI) revealed moderate osteophytic degenerative changes of the medial aspect of the knee with degenerative changes of the medial meniscus, and fabella posterior to the lateral femoral condyle. The impression was excision of osteochondroma of the right knee, and degenerative arthritis of the right knee with chronic pain. A July 2007 VA joints examination shows that the Veteran reported swelling and decreased range of motion, with no flare-ups. He wore a brace for stability. At that time, he worked as a FedEx employee offloading trucks, and reported missing more than 13 days of work in the prior 12 months. Weight bearing activities were limited, such as squatting, kneeling, bending, and carrying heavy loads. Upon examination, the Veteran had a 5 degree varus deformity of the right. Range of motion was 0 to 120 with pain and crepitus throughout. He had moderate medial laxity with valgus stress and 30 degrees but not at full extension. He had no instability laterally with varus stress, and a negative Lachman's. There was increased pain following repetitive movement. There were no flare-ups, and there was no effect of fatigue, lack of endurance, or incoordination on his knee function. A VA orthopedic surgery note dated in September 2007 reflects that the Veteran was wearing a brace on his right knee. He lacked 5 degrees of extension. Flexion was to 120 degrees. Although he wore braces on both knees, he appeared to be stable to varus and valgus, at both 30 degrees of flexion and extension. His anterior and posterior drawer tests were negative. October 2009 VA medical records reflect that the Veteran had mild varus deformity. He had active range of motion of approximately 3 degrees to 95 degrees. He was stable with varus and valgus, and had a negative anterior drawer. He had no palpable effusion. The assessment was end-stage osteoarthritis of the right knee that had failed conservative treatment. VA medical records throughout the appeals period show ongoing reports of pain and swelling in the right knee. The Board finds that, based upon the evidence of record, the Veteran's right knee disability does not warrant higher ratings under Diagnostic Code 5257 for instability. The April 2007 examiner noted only moderate laxity. For the period prior to October 5, 2009, the Veteran had negative Lachman's and anterior and posterior drawer tests, and was stable with varus and valgus. Clinical evidence has clearly shown that the Veteran had instability over the period prior to October 5, 2009; however, there is no indication that this would be considered evidence of severe recurrent subluxation or lateral instability. The Veteran's right knee disability does not warrant a higher evaluation under Diagnostic Codes 5260-5010. In order to warrant a higher evaluation under Diagnostic Code 5010, the evidence would need to show that the Veteran's right knee disability is manifested by degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. He does not have service-connected degenerative arthritis in any joint other than his right knee joint. Therefore, a rating based on degenerative arthritis in two or more joints is not warranted. Under Diagnostic Code 5260, in order to warrant a higher disability rating, the evidence would need to show that his flexion was limited to 30 degrees; however, in this case, the medical evidence shows that flexion of his knee was limited to, at most, 70 degrees. The Board notes that the examiners noted pain on range of motion; however, based on the fact that he was still able to complete his range of motion testing, pain did not limit function of right knee beyond these range of motion measurements. Mitchell. The Board has considered rating the Veteran's right knee disability under other Diagnostic Codes in order to provide him with the most beneficial rating. Under Diagnostic Code 5261, pertaining to limitation of extension, a noncompensable rating will be assigned for limitation of extension of the leg to 5 degrees; a 10 percent rating will be assigned for limitation of extension of the leg to 10 degrees; a 20 percent rating will be assigned for limitation of extension of the leg to 15 degrees; a 30 percent rating will be assigned for limitation of extension of the leg to 20 degrees; a 40 percent rating will be assigned for limitation of extension of the leg to 30 degrees; and a 50 percent rating will be assigned for limitation of extension of the leg to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Separate ratings under Diagnostic Code 5260 for limitation of flexion of the leg and Diagnostic Code 5261 for limitation of extension of the leg may be assigned for disability of the same joint. VAOPGCPREC 9-04 (Sept. 17, 2004). Prior to October 5, 2009, however, the Veteran's right knee lacked, at most, 5 degrees of extension. Even factoring in the Deluca provisions, an evaluation based on limitation of extension would not provide a separate compensable rating. In addition, the evidence does not reflect that he has ankylosis, dislocation of semilunar cartilage, or nonunion of the tibia and the fibula. 38 C.F.R. § 4.71a, Diagnostic Codes 5261, 5256, 5258, and 5262 (2013). As the preponderance of evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107. Status post right total knee replacement beginning December 1, 2010 The Veteran is currently rated under Diagnostic Code 5055, pertaining to knee replacement (prosthesis). He underwent a right total knee arthroplasty on October 5, 2009. He was assigned a 100 percent evaluation until December 1, 2010, when the current 60 percent disability rating took effect. 38 C.F.R. § 4.71a, Diagnostic Code 5055 provides that prosthetic replacement of a knee joint merits the assignment of a 100 percent rating for one year following implantation of the prosthesis. A minimum rating of 30 percent is assigned thereafter but if there are chronic residuals consisting of severe painful motion or weakness in the affected extremity, a 60 percent rating is assigned. Intermediate degrees of residual weakness, pain or limitation of motion are rated by analogy to diagnostic codes 5256, 5261 or 5262. The Veteran was provided a VA examination in March 2010. At that time, the Veteran walked with a limp and used a cane. He complained of tenderness on palpation of the soft tissue. The knee was flexed at 40 degrees, but he did have 0 degrees of extension with pain. With minimal repetitive motion, the was no change in range of motion, coordination, fatigue, endurance of pain level. He had no resistive strength. As noted above, the Veteran is currently at the maximum schedular rating under Diagnostic Code 5055. The Board has considered rating him under other Diagnostic Codes in order to provide him with the maximum benefit; however, none of the criteria for rating disabilities of the right knee would provide a disability rating higher than his present 60 percent rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5256-5263 (2013). Therefore, a higher disability rating under the schedular criteria is not available for the Veteran's right knee disability as of December 1, 2010. 38 C.F.R. § 4.71a, Diagnostic Code 5055. Separate rating for scar The Board has also determined that a separate, compensable evaluation is not warranted for the Veteran's right knee surgical scar under 38 C.F.R. § 4.118. In Esteban v. Brown, 6 Vet. App. 259, 262 (1994), the Court held that evaluations for distinct disabilities resulting from the same injury could be combined so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. The Board notes that the examiner who performed a March 2010 examination note that the Veteran has a residual scar from his right total knee replacement over the distal femur and proximal tibia. The scar was eight centimeters vertically and one centimeter in diameter. It was well-healed with a slight keloid formation. In other words, compensable residuals for those scars under the applicable rating criteria were clearly not shown. See 38 C.F.R. § 4.118 (2013). Extraschedular considerations In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2013). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 3.321. For the following reasons, the Board finds no reason to refer this case to the Compensation and Pension Service for consideration of an extraschedular evaluation under 38 C.F.R. § 3.321(b). The Veteran has been granted a TDIU based solely on his right knee disability, effective since March 20, 2006, with the exception of the period of time he was rated at 100 percent after his total knee replacement surgery under Diagnostic Code 5055. See November 2007 rating decision, January 2012 rating decision. As such, during the time he was in receipt of a TDIU and a total rating under Diagnostic Code 5055, he was in receipt of the highest rating possible for his right knee disability. In support of this finding, the Board notes that, in determining that his special monthly compensation under 38 U.S.C.A. § 1114, subsection s, and 38 C.F.R. § 3.350(i) would be continued beyond December 1, 2020, the RO informed the Veteran that the TDIU based on his right knee disability counted as the single disability rated as total. See January 2012 rating decision. As such, the Veteran has already received the maximum benefit for this disability, for the time period beginning March 20, 2006, when he has been in receipt of a TDIU rating and an extraschedular rating. Providing another rating for this disability during this time period would constitute duplicate counting of disabilities, which is not allowed. Bradley v. Peake, 22 Vet. App. 280, 293 (2008). The Board notes that the Veteran was not in receipt of a TDIU for the period of time from March 31, 2005, when he filed his initial claim for an increased disability rating assigned for his right knee disability, to March 20, 2006, when he was granted the TDIU rating. During this time period, his service-connected right knee disability was not rated as total, and could have been eligible for an extraschedular rating. The Veteran indicated at his January 2006 VA examination that he needed to wear a brace on his knee for stability. The Veteran's right knee instability, however, has already been rated as moderate based on the findings in this examination, and the fact that he wore a brace during this time does not, in and of itself, render the scheduling criteria for his right knee instability inadequate. The Board finds that, during this time, the schedular criteria under Diagnostic Codes 5010, 5257, and 5260, and the provisions for rating disabilities based on limitation of motion under Deluca adequately provide for the severity and symptoms of the Veteran's service-connected right knee disability. Thus, for the period from March 31, 2005, to March 20, 2006, the evidence does not meet the first part of the three-part test set out in Thun, and further consideration of an extraschedular evaluation for this time period is not necessary. Thus, the evidence does not support referring this case for an extraschedular evaluation. ORDER An evaluation in excess of 20 percent prior to October 5, 2009, for residuals of right knee chondro-fragment excision, is denied. An evaluation in excess of 10 percent prior to October 5, 2009, for degenerative joint disease of the right knee, is denied. An evaluation in excess of 60 percent as of December 1, 2010, for right knee disability, following a total right knee replacement, is denied. ______________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs