Citation Nr: 1342500 Decision Date: 12/23/13 Archive Date: 12/31/13 DOCKET NO. 08-01 624 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to a rating in excess of 10 percent for right knee osteoarthritis, status post patellar realignment and medial meniscectomy, for the portion of the appeal period prior to October 27, 2008. 2. Entitlement to a rating in excess of 30 percent for right knee osteoarthritis, status post arthroplasty, for the period of December 1, 2009 to January 10, 2012. 3. Entitlement to a rating in excess of 60 percent for right knee osteoarthritis, status post arthroplasty, for the period of December 1, 2009, to the present. 4. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran had active service from July 1972 to February 1976 and from November 1976 to September 1994. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). In December 2011, the Board remanded the appeal for further development. During the course of this appeal, in a March 2009 rating decision, the Veteran was granted a temporary evaluation of 100 percent effective October 27, 2008, based on surgical treatment necessitating convalescence following his right knee replacement surgery. He was also awarded a 100 percent evaluation from December 1, 2008, under Diagnostic Code (DC) 5055. An evaluation of 30 percent under DC 5055 was assigned effective December 1, 2009. In an August 2012 rating decision, the RO assigned an increased, 60 percent rating for the right knee, effective January 11, 2012. Because the Veteran is already in receipt of a 100 percent disability evaluation for his right knee for the period from October 27, 2008, to November 30, 2009, that period will not be considered as part of our review. The Board will consider only the period prior to October 27, 2008, and for period on and after December 1, 2009, as reflected on the first page of this decision. Notably, however, although the Board is granting an increased, 60 percent rating for the period from December 1, 2009 through January 10, 2010, such that the Veteran will have a 60 percent rating for the right knee covering entire period of December 1, 2009 to the present. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. For the period prior to October 27, 2008, the Veteran's service-connected right knee disability was manifested by x-ray evidence of arthritis and complaints of pain on motion, noncompensable limitation of motion, locking, and effusions commensurate with dislocation of the semi-lunar cartilage. 2. For the period prior to October 27, 2008, the Veteran's right knee disability was manifested by slight instability. 3. For the period from December 1, 2009 through January 10, 2012, and thereafter, the Veteran's right knee disability was manifested by severe, chronic residuals of total knee arthroplasty, with painful motion and weakness of the knee. 4. Knee impairment is limited by the amputation rule to 60 percent disabling. CONCLUSIONS OF LAW 1. For the period prior to October 27, 2008, the criteria for a rating in excess of 20 percent for a right knee disability consistent with finding of a dislocated semi-lunar cartilage have been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5258 (2013). 2. For the period prior to October 27, 2008, the criteria for a 10 percent rating for slight instability of the right knee have been met. 38 U.S.C.A. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2013). 3. For the period from December 1, 2009 through January 10, 2012, the criteria for a 60 percent rating, but no more for any time in the appeal period, for right knee osteoarthritis, status post arthroplasty, have been met. 38 U.S.C.A. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.14, 4.21, 4.40, 4.45, 4.59, 4.68, 4.71a, Diagnostic Code 5055 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). 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, 1277 (2009). Such notice was provided to the Veteran in an October 2006 letter. VA's duty to assist the Veteran in the development of the claim includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. As part of the development of the Veteran's claim, VA unsuccessfully sought to obtain VA outpatient treatment records from the Seattle VA Medical Center for the period of October 2006 through August 2009. VA followed all measures for obtaining the records, and properly notified the Veteran that they were unavailable. See 38 C.F.R. § 3.159(e). VA did not receive a response from the Veteran following such notification. Id. In that regard, however, the claims file contains treatment records from the Madigan Army Medical Center dated during the time period in question; private treatment notes from October 2008 indicate that the Veteran received his primary care at the Madigan location. The Board has carefully reviewed the Veteran's statements and the medical evidence of record, and concludes that no available outstanding evidence has been identified. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 38 C.F.R. § 3.159(c). Disability Ratings 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. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In claims for increased rating VA must consider that a claimant may experience multiple distinct degrees of disability, resulting in different levels of compensation, from the time the increased rating claim is filed to the time a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 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, however, will be expected in all instances. 38 C.F.R. § 4.21. 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. In addition, when assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Thus, a layperson is competent to report on the onset and continuity of his symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). For instance, a lay person may speak to etiology in those limited circumstances where a nexus is obvious merely through observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). 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. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). Where there is conflicting medical evidence, the Board may not ignore or disregard any medical professional's opinion, but may favor one medical opinion over by providing an adequate statement of reasons or bases. See Willis v. Derwinski, 1 Vet. App. 66, 70 (1991). A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). 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). Rating Criteria for the Knee The Veteran's right knee disability is current rated by the RO under Diagnostic Code 5010. This diagnostic code, referring to traumatic arthritis, provides for ratings under Diagnostic Code 5003 as degenerative arthritis. See 38 C.F.R. § 4.71a, Diagnostic Code 5010. Diagnostic Code 5003 provides that degenerative arthritis established by x-ray is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the joint involved. If the limitation of motion of the joint involved is noncompensable, a rating of 10 percent is applicable. Id. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. With any form of arthritis, painful motion is an important factor. It is the intention of the rating schedule to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. A compensable evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5003 and 38 C.F.R. § 4.59 based on painful motion, is in order where arthritis is established by x-ray findings and no actual limitation of motion of the affected joint is demonstrated. Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Where a compensable limitation of motion is demonstrated in the joint, the Lichtenfels rule is not applicable. Based on the evidence of record, the right knee disability may also potentially be rated under Diagnostic Codes 5257, 5258, 5259, 5260, or 5261. Under Diagnostic Code 5257, where there is slight recurrent subluxation or lateral instability, a 10 percent rating may be assigned. A 20 percent evaluation will be assigned for moderate recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Diagnostic Codes 5258 and 5259 provide ratings for meniscal impairments. Under Diagnostic Code 5258, semilunar (meniscal) cartilage that is dislocated and causes frequent episodes of locking, pain, and effusion into the joint, warrants a 20 percent rating. Diagnostic Code 5259 provides a 10 percent rating for semilunar cartilage that has required surgical removal but is symptomatic. 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259. Diagnostic Code 5260 pertains to limitation of flexion of the knee. This code provides that flexion limited to 45 degrees warrants a 10 percent evaluation and flexion limited to 30 degrees warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Diagnostic Code 5261 pertains to limitation of extension of the knee. This code provides that extension limited to 10 degrees warrants a 10 percent evaluation, and, extension limited to 15 degrees warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5261. With both Diagnostic Codes 5260 and 5261, there are higher potentially-applicable ratings for disabilities resulting in additional decreased of motion. Following a total knee arthroplasty, a 100 percent rating is granted for the immediate post-surgery year under Diagnostic Code 5055. Thereafter, the minimum rating is 30 percent, and chronic residuals consisting of severe painful motion or weakness in the affected extremity are to be rated at 60 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5055. VA General Counsel, has held that separate ratings may be assigned in cases where a service-connected knee disorder includes both arthritis and instability, provided, of course, that the degree of disability is compensable under each set of criteria. VAOPGCPREC 23-1997; 62 Fed. Reg. 63604 (1997). Ratings based on the dislocation of semilunar cartilage may involve consideration of the loss of range of motion, depending on symptomatology. VAOPGCPREC 9-1998, 63 Fed. Reg. 56,703-04 (1998). In VAOGCPREC 9-2004 (September 17, 2004) VA General Counsel held that despite motion being in one plane the two motions, flexion (a retrograde motion) in bending the leg and extension (a forward motion) in straightening the leg, serve different functional roles, although both are necessary for normal function, such that they constitute two symptomatologies or manifestations that are not duplicative or overlapping such that separate ratings may be assigned for limitation of knee flexion (Diagnostic Code 5260) and for limitation of knee extension (Diagnostic Code 5261) without violating the rule against pyramiding, at 38 C.F.R. § 4.14, regardless of whether the limited motions are from the same or different causes. 69 Fed. Reg. 59,990 (2004). Evidence & Analysis The Veteran has a history of meniscus removal dating to active duty service, as well as degenerative joint disease of the right knee. In October 2008, he underwent a total knee arthroplasty. Prior to October 27, 2008 While outside the appellate period, the Board notes that in March 2004, the Veteran's right knee extension was limited by 10 degrees, and he had flexion of the knee to 115 degrees. Testing in March 2004 revealed a positive Lachman's test, and an MRI in March 2004 revealed significant tricompartmental degenerative joint disease, a complete ACL tear, a complete absence of the medial meniscus. X-rays showed a large joint effusion. He complained of locking episodes four or five times per day. In October 2006, the Veteran underwent VA examination. He informed the examiner that he experienced weakness, stiffness, giving way, and loss of balance. He described constant pain of both aching and sharp natures, exacerbated by physical activity. On physical examination, the Veteran had flexion to 90 degrees, with pain at 80 degrees, and further limited by 10 degrees due to fatigue, weakness, lack of endurance, and incoordination. [The examiner, in consecutive sentences, stated (a) that those factors did not limit the knee, and then (b) that they limited the knee function by 10 degrees. The Board finds that the more specific statement - i.e., the additional 10 degrees of limitation, is the more reliable finding, and resolving reasonable doubt, is more favorable to the Veteran.] He had extension to 0 degrees, which was further limited to 10 degrees by fatigue, weakness, lack of endurance, and incoordination. The knee was tender on examination. The Veteran identified chronic knee pain at a level of 9 out of 10 at separate treatment in October 2006. At treatment in April 2007, the Veteran described constant knee pain at a level of 9 out of 10. Physical examination in April 2007 showed a full range of motion of the knee, but with pain on motion. The knee was tender on ambulation, but was not swollen or warm. There was no instability. In a January 2008 statement, the Veteran reported chronic locking, weakness, laxity, severe pain, joint effusions, and degenerative joint disease. When walking, his knee regularly gave out, and felt very unstable. His knee often became swollen. A June 2008 treatment note acknowledged that the Veteran had a limited range of right knee motion, but did not indicate to what degree motion was limited. The knee was tender to palpitation and on ambulation, but was not swollen or warm. There was no laxity or instability noted. X-rays taken in June 2008 showed severe degenerative changes in all three compartments of the right knee, with bulky osteophytes, and a near loss of cartilage. An August 2008 treatment note indicated that the Veteran reported worsening knee pain, with warmth and joint stiffness. He denied "locking up," and stated that the knee did not catch during movement or cause a clicking sensation. He denied a feeling of instability. Physical examination demonstrated that pain was elicited by motion of the knee. There was patellar crepitus. On range of motion testing, the Veteran had flexion limited to 105 degrees, and extension limited to 10 degrees. There was no effusion, edema, tenderness, or warmth. The medial collateral and lateral collateral ligaments did not demonstrate laxity, and stability testing did not show an unstable knee joint. The Veteran was seen on multiple occasions in October 2008 prior to undergoing a total knee arthroplasty. On October 14, 2008, he was noted to have 130 degrees of flexion, and extension limited to 15 degrees. There was patellar crepitus. The Veteran complained of his knee locking up. He was seen again on October 22, 2008, at which time he reported limited walking abilities, and difficulty getting up from squatting or kneeling. When he rose from a sitting position, his knee locked up. On physical examination, the Veteran had normal tibiofemoral alignment. His range of motion of the right knee was from 15 degrees extension to 130 degrees of flexion. There was no effusion of the knee. The Board also notes that findings of the January 2012 VA examiner that are relevant to the period of time prior to October 27, 2008. That examiner was asked in the prior remand to address the likely etiology of the Veteran's ACL tear. He opined that he "could find no evidence there have been new injuries other than the falls with his knees giving out that might contribute to [a] torn anterior cruciate ligament in the right knee." He was also unable to determine whether the ACL was torn at the time of the Veteran's in-service meniscal surgery. For the period prior to October 27, 2008, the Board finds that the symptoms of pain and locking, and the limitation of motion noted more nearly approximate the criteria for dislocation of the semi-lunar cartilage under Diagnostic Code 5258. The limitation of motion demonstrated is not to a compensable degree, but it is clear that the appellant has had increased pain and limitation of motion over the early part of this appeal. Thus, a 20 percent rating is for assignment. A higher rating is not for assignment as ankylosis or compensable limitation of motion is not otherwise shown. As to the range of motion, for the period of September 2006 (when he made his current claim for an increased rating) through October 26, 2008, the Veteran currently receives a 10 percent rating based on functional loss due to pain, under Diagnostic Code 5260-5003 (a hyphenated Diagnostic Code, considering the arthritis diagnosis and the effect of painful motion on the Veteran's range of motion; see 38 C.F.R. § 4.27 (2013)), the evidence does not support a higher rating. None of the evidence of record shows a limitation of flexion to 45 degrees or less, even when considering DeLuca factors. Without flexion limited to 45 degrees or less, his condition does not warrant a compensable rating for loss of flexion. 38 C.F.R. § 4.71a, Diagnostic Code 5260. The evidence demonstrates compensable loss of extension under Diagnostic Code 5261. Prior to the claim, he had a 10 degree limitation of extension. During his October 2006 examination, his extension was limited to 10 degrees following repetitive motion. Physical examination in August 2008 also revealed a 10 degree limitation of extension. Thereafter, immediately before his surgery (i.e., in the final 13 days prior to surgery), his limitation of extension increased to 15 degrees. Except for the final two weeks of the period of time under consideration, however, the Veteran's loss of extension would warrant no more than the 10 percent rating. As the current rating is based on functional loss, including painful motion of the knee, a separate rating for limited extension cannot be separately applied without violating the rules governing pyramiding. 38 C.F.R. § 4.14. The Board acknowledges that during the last few days prior to surgery, the Veteran had symptoms that could be interpreted to meet the criteria for a 20 percent rating. That is now contemplated in the rating assigned herein. A separate 10 percent rating for slight instability is warranted. The Veteran, for the entire period on appeal, was without his anterior cruciate ligament, which, per a March 2004 report, was "obliterated." The Board finds that, viewing the evidence in a light favorable to the Veteran, especially when considering the January 2012 VA examination report, that the torn ACL must be considered as part of the Veteran's service-connected knee disability. The Veteran, except for one treatment in August 2008, consistently identified symptoms of knee instability, leading to falls. Although objective testing demonstrated a stable knee, the Board finds that the lack of the ACL, along with the Veteran's competent reports of giving way and instability, is sufficient to meet the criteria for a compensable rating. The Board finds that lack of objective testing, however, precludes a finding that the symptomatology is more than "slight," and thus no more than the 10 percent rating is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Board has also considered whether, prior to October 27, 2008, the Veteran's right knee disability presented an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2013); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). In this case there are no exceptional or unusual factors with regard to the Veteran's knee disability. The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) (holding that the "rating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria applied (including the separate ratings) reasonably describe the Veteran's disability level and symptomatology, and provide for consideration of greater disability and symptoms than currently shown by the evidence. There is no suggestion that the Veteran required periods of hospitalization or incurred significant interference with his employment prior to October 27, 2008. Thus, his disability picture was contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extra-schedular consideration is not warranted. From December 1, 2009 through January 10, 2012 and thereafter Following the Veteran's total knee arthroplasty, the Veteran was seen for x-rays in October 2009. Per the report, the prosthesis was normally aligned without evidence of loosening. A November 2009 x-ray report indicated that the Veteran was seen for persistent pain since surgery, with effusion and edema. A three-phase knee study showed possible active inflammation, with possible loosening. A bone marrow scan showed a collection of white blood cells in the right knee that was deemed suspicious for active inflammation. A November 2009 treatment note indicated that the Veteran had been in pain since the surgery, and that the pain was progressively worsening. Physical examination of the knee showed mild effusion, with edema and slight worse. The motion of the knee did not elicit pain, but the knee was tender to palpitation. Motion was reduced to a range of 0 to 115 degrees. There was laxity of the medial collateral ligament. The Veteran was seen for a VA examination in January 2012. [Although this examination occurred on January 11, 2012, the Board has determined that the findings present the most accurate picture of the severity of the knee disability for the period of time being adjudicated here, especially as the examiner noted no changes from December 2009 through the time of the examination.] The Veteran informed the examiner that he experienced pain, swelling, and feelings of weakness, stiffness, and giving way in his right knee. He had fallen approximately six times over the previous year related to his knees giving way. Right knee pain was constant and ranged from a low point of 5 of 10, to a high point of 7 of 10; the flares of knee pain would last from one to two hours. The Veteran estimated that he could walk up to one mile with the use of a forearm crutch, that he could sit for approximately 20 to 30 minutes, could stand for 15 to 20 minutes, and could drive for about 60 minutes. Physical examination showed difficulty standing from a seated position, with pain, and increasing pain on ambulation. The right knee was tender. There was laxity of the cruciate ligament. The knee had swelling with increased warmth and moderate effusion. The range of motion testing demonstrated a 15 degree flexion contracture, with further flexion to 115 degrees, where pain began at 95 degrees. Following three repetitions, the right knee was limited to 105 degrees of flexion due to pain. X-rays showed normal alignment without hardware failure or loosening. The examiner opined that the right knee impairment was severe. He stated that it was his "impression that the [V]eteran's right knee condition is not doing well." He believed that the knee was most likely failing and may have been infected with a chronic, low-grade infection. He opined that there had not been any change in symptomatology from December 2009 through the present, based on a review of the claims file and discussions with the Veteran. The Board finds that a 60 percent rating, the highest available rating under Diagnostic Code 5055 is warranted for the period from December 1, 2009 through January 10, 2012 and thereafter. The Veteran's symptoms, including pain and weakness, were severe. Throughout that time, the Veteran continued to have significant problems with his total knee replacement, with pain, weakness, and reduced range of motion. The knee showed a flexion contracture of 15 degrees, which by itself, without taking into account the other impacts, could warrant a 20 degree rating under Diagnostic Code 5261. The evidence suggests that the knee prosthesis was failing only three years following the total knee arthroplasty, and the January 2012 examiner, an orthopedic surgeon, determined that the Veteran's right knee presented severe symptomatology. The Veteran is currently in receipt of a 60 percent rating based on these findings for the period beginning January 11, 2012, and the Board takes particular note of the January 2012 examiner's opinion that the knee had been at the same level of severity since December 2009. A 60 percent rating is warranted for the period of December 1, 2009 through January 10, 2012. 38 C.F.R. § 4.71a, Diagnostic Code 5055. It is the conclusion of the Board, however, that a rating in excess of 60 percent is not warranted. This is the maximum schedular rating and is limited by the amputation rule. See 38 C.F.R. § 4.68. The amputation site being the lower third of the thigh under Code 5162. Further, it is conclude that extraschedular consideration is not in order. It is concluded that the provisions of the rating schedule contemplate the findings demonstrated during the appeal period. There are no unusual findings such as to render application of the regular schedular criteria impractical. See Thun, Fisher, supra. That the Veteran had significant difficulty with the knee replacement throughout the appeal period after the surgery, that is recognized by the schedular criteria as discussed. ORDER Entitlement to an evaluation higher than of 20 percent for right knee osteoarthritis, status post patellar realignment and medial meniscectomy, for the portion of the appeal period prior to October 27, 2008, is granted, subject to the law and regulations governing the award of monetary benefits. Entitlement to a separate 10 percent rating for slight instability of the right knee, for the portion of the appeal prior to October 27, 2008, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a 60 percent for right knee osteoarthritis, status post arthroplasty, for the period of December 1, 2009 to January 10, 2012, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a rating in excess of 60 percent for post operative arthroplasty residuals during the appeal period is denied. REMAND The Veteran's spouse indicated in a June 2013 statement that the appellant is now on Social Security Disability related in part to his knee disability. VA has a duty to obtain those records. VA has a duty to obtain relevant Social Security Administration (SSA) records. Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010) (holding that SSA records must be obtained if relevant to the claim). The spouse also reported that the Veteran received treatment at the Madigan facility multiple times per week since fall 2012; such records must be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that VA treatment records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). The evidence suggests that the Veteran's knee disability may have worsened since the January 2012 examination. In addition to the fact that the examiner suggested that the right knee prosthesis may have been failing, the spouse informed the Board in her June 2013 statement that the Veteran was diagnosed with loss of muscle mass and possible inclusion body myositis in September 2012. A new examination is warranted. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (finding that a veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination). The issue of entitlement to a TDIU is inextricably intertwined with the claim for an increased rating for the right knee that is being remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (providing that issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). Accordingly, the case is REMANDED for the following action: 1. Contact the Social Security Administration to obtain the Veteran's disability records, and associate those records with the claims file. 2. The Veteran should be afforded an appropriate VA examination. The examiner is to be provided access to the claims folder and Virtual VA. The examiner must specify in the report that the claims file and Virtual VA records have been reviewed. In accordance with the latest worksheets for rating knee disabilities the examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of any disability. A complete rationale for any opinions expressed must be provided. In addition, as indicated, all service connected disorders should be examined and any function impact on employability should be clearly set forth. 3. Adjudicate the intertwined issue of a TDIU, to include any development that might be needed for full and fair adjudication. 4. If the benefits sought on appeal are not granted in full, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. 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). This appeal 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). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs