Citation Nr: 1343115 Decision Date: 12/27/13 Archive Date: 01/07/14 DOCKET NO. 09-46 721 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a right knee disability, secondary to a service-connected left knee disability. 2. Entitlement to an initial disability rating greater than 10 percent for service-connected left knee degenerative joint disease, prior to August 9, 2012. 3. Entitlement to a higher rating for service-connected status post left knee replacement, evaluated as 30 percent disabling since October 1, 2013. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran served on active duty from August 1987 to August 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The instant matters were previously before the Board in June 2012, at which time they were remanded for the Veteran to be scheduled for a VA medical examination in connection with his claims. The Veteran failed to report for his scheduled examination and in January 2013, the Appeals Management Center (AMC) issued a supplemental statement of the case (SSOC) denying service connection for a right knee disability and a rating in excess of 10 percent for left knee degenerative joint disease. The record also reflects that after the matters were remanded by the Board, the Veteran underwent a left total knee replacement in August 2012. The Veteran underwent a VA examination in September 2013, which examination did not include examination of the left knee. (The examination report is contained in the Veteran's Virtual VA file.) Notably, the September 2013 VA examination includes information relevant to the Veteran's right knee claim. Thereafter, the RO issued an October 2013 rating decision wherein it continued the Veteran's 10 percent disability rating for his service-connected left knee disability prior to August 9, 2012, and assigned a 100 percent disability rating for the Veteran's left knee disability, status post left knee replacement, effective from August 9, 2012, to October 1, 2013. (This rating decision is also included in the Veteran's Virtual VA file.) A 30 percent evaluation was assigned thereafter. The record currently before the Board contains no SSOC denying a rating in excess of 30 percent for the Veteran's left knee disability, status-post total knee replacement, nor addressing the September 2013 VA examination report as it pertains to the Veteran's right knee claim. Given this , the Board finds it appropriate to adjudicate the Veteran's claim for a higher initial rating for his service-connected left knee disability as two separate issues, as set forth on the title page of this decision. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); AB v. Brown, 6 Vet. App. 35 (1993); 38 C.F.R. § 3.655 (2013). (The decision below addresses the issue of entitlement to an initial disability rating greater than 10 percent for service-connected left knee degenerative joint disease, prior to August 9, 2012. The remaining issues are addressed in the remand that follows the Board's decision.) FINDING OF FACT Prior to August 9, 2012, the Veteran's degenerative joint disease of the left knee was manifested by painful motion tantamount to flexion no worse than 60 degrees or extension no worse than 5 degrees; objective findings of instability and/or subluxation of the left knee were not shown CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent prior to August 9, 2012, for degenerative joint disease of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They also require VA to notify the claimant and the claimant's representative of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board notes that VA's General Counsel has held that VCAA notice is not required for downstream issues. VAOPGCPREC 8-2003. Additionally, the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess, 19 Vet. App. at 490. In this case, the Veteran's current appeal regarding the rating claim decided herein stems from a disagreement with a downstream element (the initial rating assigned in connection with his award of service connection for left knee degenerative joint disease), no additional notice is required because the purpose that the notice is intended to serve has been fulfilled. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Regarding the duty to assist, the Board also finds that VA has adequately fulfilled its obligation to assist the Veteran in obtaining the evidence necessary to substantiate the claim decided herein. The evidence obtained or associated with the paper and virtual claims folders includes the Veteran's VA treatment records and a VA examination report. The Veteran has not alleged that there is any additional outstanding evidence pertinent to the matter decided herein and the Board is also unaware of any such outstanding evidence. As noted in the introduction, the matter was previously remanded for the Veteran to be afforded a new VA medical examination. This was so because the Board, in its June 2012 decision, determined that the findings contained in an April 2008 VA examination report were seemingly conflicted with regard to whether the Veteran experienced left knee instability. On remand, however, the Veteran failed to report for his scheduled examination. No reason has been given for why the Veteran failed to report. In this regard, if a claimant fails to report for a scheduled examination, VA regulations provide: When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken in accordance with paragraph (b) . . . of this section as appropriate. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. 38 C.F.R. § 3.655(a). Paragraph (b) further provides, in pertinent part : "When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record." 38 C.F.R. § 3.655(b). There is no evidence demonstrating that the Veteran had an adequate reason or "good cause" for failing to report to be examined when VA requested. Accordingly, the Board finds that VA has complied, to the extent required, with the duty-to-assist requirements found at 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c)-(e). Accordingly, as required by 38 C.F.R. § 3.655(b), the Board must adjudicate the issue of entitlement to an initial disability rating greater than 10 percent for service-connected left knee degenerative joint disease, prior to August 9, 2012, on the basis of the existing record. The Board acknowledges that it is remanding the Veteran's other claims. However, as will be discussed in further detail below, this is so because of actions taken by the agency of original jurisdiction (AOJ) on remand with regard to the Veteran's claim of service connection for a right knee disability and due to the fact that the Veteran underwent a total left knee replacement during the pendency of the appeal, thus changing the nature of his service-connected left knee disability. II. Analysis Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). Where, as in the case of the Veteran's left knee disability, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a staged rating are required. See Fenderson, supra. Further, "[w]here there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned." 38 C.F.R. § 4.7 (2013). The Veteran's service-connected left knee disability, characterized as degenerative joint disease prior to August 9, 2012, was, during the relevant time period, evaluated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5003. Under DC 5003, "[d]egenerative arthritis 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, DC 5003 (2013). When, however, the limitation of motion of the specific joint involved is not compensably disabling under the appropriate diagnostic codes, a rating of 10 percent is assignable for each major joint or group of minor joints affected by limitation of motion. See 38 C.F.R. § 4.71a; see also Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991) (painful motion of a major joint caused by arthritis is deemed to be limited motion and entitled to a minimum 10 percent rating even though there is no actual limitation). 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, the disability is to be rated as follows: with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, 20 percent; with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, 10 percent. 38 C.F.R. § 4.71a, DC 5003. Limitation of knee motion is rated under DC 5260, pertaining to flexion, and DC 5261, pertaining to extension. Under DC 5260, a noncompensable rating is assigned when flexion of the knee is limited to 60 degrees. 38 C.F.R. § 4.71a, DC 5260 (2013). A 10 percent rating is warranted when flexion is limited to 45 degrees. Id. A 20 percent rating is for consideration when flexion is limited to 30 degrees. Id. A 30 percent rating is applicable where flexion is limited to 15 degrees. Id. Under DC 5261, a noncompensable rating is warranted where extension is limited to 5 degrees. 38 C.F.R. § 4.71a, DC 5261 (2013). A 10 percent rating is assigned when extension of the knee is limited to 10 degrees. Id. A 20 percent rating is applicable when extension is limited to 15 degrees. Id. A 30 percent rating is warranted where extension is limited to 20 degrees. Id. Lastly, a 40 percent rating is assigned when extension is limited to 30 degrees. Id. A review of the record shows that in August 2007, the Veteran presented with complaints of knee pain and instability. Laxity of the medial collateral ligament was noted bilaterally. In September 2007, prior to a left knee arthroscopy performed the following month, the Veteran's left knee range of motion was recorded to be from 0 to 120 degrees. There was tenderness on palpation over the lateral joint and along the medial aspect. There was no effusion and no apparent ligamentous laxity. In November 2007, the Veteran presented for follow-up treatment after his left knee arthroscopy. He reported that the daily acute pain that had existed prior to the procedure had resolved, but that he continued to have chronic aching pain. At that time, his range of left knee motion was recorded to be from 0 to 110 degrees. There was some laxity to varus stress testing at 0 degrees of flexion. The Veteran was otherwise ligamentously stable. The Veteran was afforded a VA examination in April 2008. The Veteran complained of pain, giving way, instability, stiffness, weakness, inflammation, and constant effusions. He reported locking episodes several times a year, but less than monthly. The Veteran stated that he experienced severe flare-ups weekly, which resulted in an inability to walk, bend, or climb stairs. He further indicated involvement of his foot and lumbar spine due to his left knee pain. Physical examination of the Veteran revealed an antalgic gait, but no evidence of abnormal weight bearing. Crepitation was observed, but the examiner found no evidence of clicking, snapping, grinding, instability, or patellar or meniscus abnormality. It was also noted that the Veteran required the occasional use of a brace for walking, was able to stand for only 15-30 minutes, and could walk one-quarter mile. The Veteran denied incapacitating episodes. Range-of-motion testing revealed active flexion to 128 degrees, with pain beginning at 128 degrees. Passive flexion was noted to be to 130 degrees, with pain beginning at 126 degrees. The Veteran also had extension to zero degrees. The examiner indicated painful movement, but stated that additional loss of motion on repetitive testing was not demonstrated. X-rays showed increased narrowing of the left lateral compartment and a large osteophyte in the lateral tibial plateau. The examiner diagnosed degenerative joint disease of the left knee with degenerative lateral meniscal tear. Based on the objective evidence of record, it is clear that the Veteran does not have motion limited to a compensable degree, even considering the points at which he experiences pain. See 38 C.F.R. § 4.71a, DCs 5260, 5261. Accordingly, a rating greater than 10 percent prior to August 9, 2012, is not warranted based on actual limitation of motion caused by the Veteran's degenerative joint disease because the Veteran was able to achieve flexion and extension beyond that which would be considered even noncompensable. Further, to the extent that the Veteran's description of symptoms during a flare-up could be considered an incapacitating episode, because the Veteran's service-connected degenerative arthritis involves only one major joint, a rating greater than 10 percent is not available under DC 5003, Note (1). The Board notes that, when an evaluation of a disability is based on limitation of motion and/or arthritis, the Board must also consider, in conjunction with the otherwise applicable DC, any additional functional loss a veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012). DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. On examination in April 2008, it was indicated that pain began at no worse than 126 degrees of flexion. The relevant evidence is also with references to knee pain. The Board finds, however, that the Veteran's painful motion is accounted for by his 10 percent disability evaluation and there is no basis upon which to assign a higher rating. See Lichtenfels, supra. Indeed, it appears that the Veteran's disability in this regard was initially rated on the basis of painful motion, as the medical evidence of record demonstrates that the Veteran did not experience an objective compensable limitation of motion during the relevant time period. See id. Notably, despite the point at which his pain sets in, the Veteran has consistently been able to achieve greater degree of motion than that which would be compensable. In this regard, the Court has affirmed that pain itself does not constitute functional loss and "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,' 38 C.F.R. § 4.40, in order to constitute functional loss." Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Thus, an evaluation in excess of the minimum compensable rating on account of pain must be based on demonstrated functional impairment. Given the Veteran's ability to achieve flexion to at least 110 degrees and extension to 0 degrees during the relevant time period, it is clear that his pain does not result in a functional loss equivalent to that which would warrant a rating greater than the currently assigned 10 percent. Regarding the Veteran's subjective complaint on examination of severe flare-ups, described as an inability to walk, bend, or climb stairs for several hours, the Board questions the credibility of the Veteran in describing the severity of these flare-ups. Notably, none the Veteran's treatment records contain an indication of severe flare-ups, despite the fact that the records document the Veteran's reported left knee symptomatology, as the Veteran was being treated specifically for his left knee. Indeed, in June 2007, the Veteran reported only that "sometimes the knee swells," and in September 2007, he indicated only periodic knee swelling. Based on the lack of any suggestion of severe flare-ups in the Veteran's VA treatment records, the Board finds his statement given during the April 2008 VA examination to be incredible. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed.Cir.2006). ("[T]he Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc."); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) ("The credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character"), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Overall, from a functional standpoint, it has been noted that the Veteran has had pain on movement; however, he has clearly been able to achieve a greater range of motion than that required for a 20 percent disability rating, even taking into account the DeLuca factors, at all times during the relevant time period. Accordingly, as the evidence fails to reveal flexion limited to 30 degrees or extension limited to 15 degrees, even with consideration of functional loss, the Board finds that a rating greater than the currently assigned 10 percent is not warranted prior to August 9, 2012, under DC 5003. The Board notes that VA's General Counsel has issued a precedential opinion that provides guidance concerning rating claims for knee disorders. See VAOPGCPREC 23-97 (July 1, 1997). 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. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In VAOPGCPREC 23-97, VA's General Counsel held that a veteran who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257, provided that a separate rating must be based upon additional disability. Under DC 5257, a 30 percent evaluation is for application when there is severe recurrent subluxation or lateral instability; a 20 percent rating is assignable for moderate disability; a 10 percent rating is assignable for slight recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257 (2013). In the instant case, the Board finds no objective medical evidence of subluxation or lateral instability in the left knee. The Board acknowledges the Veteran's complaints of instability and giving way during the April 2008 examination; the VA examiner, however, found no evidence of instability and the Veteran denied any episodes of dislocation or recurrent subluxation. Although the Veteran is competent to report that his knee gives way, the Board finds that as a lay person without the appropriate medical training and expertise, he is not competent to state that that symptom is indicative of true instability as opposed to some other patellofemoral dysfunction, especially in light of the VA examiner's finding that the Veteran's left knee was stable. See Jandreau v. Nicholson, 492 F.3d 1372, 1374-75 (Fed. Cir 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). Further, while some laxity was noted in November 2007, the Veteran was found to be ligamentously stable. Notably, the VA clinician did not indicate that the Veteran's laxity resulted in actual instability of the knee. Again, the Board notes that because the Veteran failed to report for his scheduled examination, the Board is compelled to decide on the matter based on the evidence of record, even if that evidence was previously found to contain contradictions. Accordingly, the Board finds that a separate rating under DC 5257 is not warranted as the evidence fails to demonstrate recurrent subluxation or lateral instability of the left knee. See 38 C.F.R. § 4.71a, DC 5257. The Board has also considered whether the Veteran may be entitled to a higher rating under the following DCs applicable to disabilities of the knee: (1) DC 5256 which pertains to disabilities involving ankylosis of the knee; (2) DC 5258 which provides for a 20 percent evaluation for dislocated semilunar cartilage "with frequent episodes of 'locking,' pain, and effusion into the joint'"; and (3) DC 5262 which is used to evaluate impairments of the tibia and fibula. 38 C.F.R. § 4.71a, DCs 5256, 5258, 5262 (2013). There is no evidence of ankylosis of the right or left knee joint or any impairment of the tibia or fibula, bilaterally, to allow for application of DC 5256 or 5262. Further, the evidence of record does not demonstrate any complaints of dislocated cartilage. While the Veteran complained of locking and effusion, the Board finds that, without a showing of dislocated semilunar cartilage, the evidence does not support a rating under DC 5258. The Board has also considered whether referral for extraschedular consideration is warranted, but finds that it is not. In this regard, the Board finds that the symptoms of the Veteran's left knee disability prior to August 9, 2012, were not so exceptional or unusual such that the schedular criteria did not adequately compensate for them. Here, the Veteran's main symptoms have been pain, flare-ups, decreased motion, and limitation of activities. The Board does not find that the Veteran's symptoms take his case outside the norm such that referral for consideration of a higher evaluation on an extraschedular basis is required. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008); 38 C.F.R § 3.321(b)(1) (2012). Indeed, the rating schedule and associated regulations compensate for pain, flare-ups, and limited motion. Although limitation of activities such as walking and use of a brace and/or cane are not specifically noted in the rating schedule, it is clear the Veteran's activities are limited due to his knee pain and decreased motion and that those assistive devices are used to alleviate the Veteran's symptoms, which are accounted for by the rating schedule. In sum, the Board finds that the evidence does not support a rating than the currently assigned 10 percent rating for the Veteran's left knee degenerative joint disease prior to August 9, 2009. In finding that an evaluation greater than 10 percent is not warranted for the Veteran's left knee disability, the Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The Board is unable to identify a reasonable basis for granting a rating in excess of 10 percent for the Veteran's left knee disability at any point prior to August 9, 2012. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013). ORDER Entitlement to an initial disability rating greater than 10 percent for service-connected left knee degenerative joint disease prior to August 9, 2012, is denied. REMAND As noted in the introduction, the issue of entitlement to service connection for a right knee disability, secondary to a service-connected left knee disability, was previously remanded by the Board in June 2012. The basis of the Board's remand was for the AOJ to provide the Veteran with a VA examination to determine the likelihood that the Veteran's service-connected degenerative joint disease of the left knee had caused or made chronically worse the Veteran's degenerative joint disease of the right knee. The Veteran was scheduled for a VA examination in December 2012, but failed to report for that examination. However, the Veteran did present for a VA examination in September 2013, the scheduling of which is somewhat unclear from the record currently before the Board. Review of that examination report reveals that the examiner was requested to opine as to the above question. Notably, the AOJ has not had the chance to review the September 2013 VA examination in connection with the Veteran's claim of service connection for a right knee disability in the first instance and the Veteran has not waived such review. Further, the examiner failed to opine as to the issue of aggravation and the examiner's opinion regarding direct causation is lacking somewhat in rationale. Given the actions that took place on remand, and the inadequacies in the September 2013 VA examination report, the Board finds that the claim must again be remanded for further development and readjudication, as set forth in the remand directives that follow. See Disabled American Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003) (absent a waiver, the Board may not adjudicate a claim based on evidence that has not been previously considered by the AOJ); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination, it must provide an adequate one); 38 C.F.R. §§ 3.159(c)(4), 19.37, 20.1304 (2013). Regarding the issue of entitlement to a rating greater than 30 percent since October 1, 2013, for the Veteran's service-connected status post knee replacement, the provisions of 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5055 provide for a 100 percent rating for one year following implantation of prosthesis and indicates that a minimum rating of 30 percent should be assigned thereafter. A review of the record currently before the Board fails to reveal any evidence regarding the current severity of the Veteran's left knee disability. Accordingly, as the evidence of record is insufficient to rate the Veteran's service-connected left knee disability since the expiration of his one-year period of convalescence on October 1, 2013, the matter must be remanded for the Veteran to be afforded a VA examination to determine the current severity of his left knee disability. Accordingly, the case is REMANDED to the AOJ for the following action: 1. Schedule the Veteran for a VA examination to determine the current severity of his service-connected left knee disability, status post total knee replacement. The claims folder, and a copy of this remand, must be provided to and reviewed by the examiner as part of the examination. The examiner should be asked to review the record, take a detailed history from the Veteran with regard to the progression of his left knee disability since October 1, 2013, and provide a complete assessment of the severity of the disability. All appropriate tests and studies, to include x-rays, should be performed and all clinical findings should be reported in detail. The results of any testing must be included in the examination report. The examiner should identify all chronic orthopedic manifestations of the Veteran's left knee disability and include range-of-motion findings. The examiner should state whether the Veteran's left knee disability is manifested by weakened movement, excess fatigability, incoordination, or pain. The examiner is specifically asked to comment on whether any painful motion or weakness is severe, or, in the alternative, whether there are lesser degrees of residual weakness, pain, and/or limitation of motion. Diagnostic Code 5055. The examiner should also provide an opinion as to the extent of functional loss due to pain, incoordination, weakness, pain on flare-ups, and fatigability. Such findings should be equated to degrees of additional loss of motion (beyond what is shown clinically) in order to reflect the degree of disability caused by the functional deficits and should be done for both loss of extension and loss of flexion. Whether the Veteran experiences any lateral instability or subluxation should also be noted, and the degree thereof described as slight, moderate, or severe. The examiner is also requested to opine to whether the Veteran's service-connected degenerative joint disease of the left knee has caused or made chronically worse the Veteran's degenerative joint disease of the right knee. (This opinion may be based upon a review of the evidence of record, to include the Board's current and prior remand, unless the examiner deems it necessary to examine the Veteran's right knee to render the opinion, in which case examination of the Veteran's right knee should be undertaken, to include all appropriate tests and studies necessary to render the requested opinion.) The examiner should also comment on the Veteran's employment and employability. It should be determined whether the Veteran is currently working and, if so, in what capacity. A detailed history should be taken regarding the Veteran's employment and education, and the entire claims file should be reviewed. The examiner is requested to provide an opinion as to whether the Veteran is unable to secure or follow substantially gainful employment consistent with the Veteran's education and occupational experience on account of his service-connected left knee disability. A complete rationale for all opinions provided, to include citation to pertinent evidence of record and/or medical authority, as appropriate, should be set forth. Regarding the question of causation and/or aggravation of the Veteran's right knee disability, if the examiner finds that the available medical evidence fails to suggest causation and/or aggravation, the examiner must state why he/she came to that conclusion. Simply stating that a negative opinion is based on the available and provided medical evidence is not sufficient for evaluation purposes. If the examiner determines that he/she cannot provide an opinion on any issue at hand without resorting to speculation, the examiner should explain the inability to provide an opinion and identify precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted regarding the etiology of any diagnosed disorder or whether additional testing or information could be obtained that would lead to a conclusive opinion. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the examiner should be undertaken so that a definite opinion can be obtained.) (In the event that the Veteran fails to report for the examination, forward the claims folder to a clinician for review and request that the clinician render the requested opinions regarding the likelihood that the Veteran's service-connected degenerative joint disease of the left knee has caused or made chronically worse the Veteran's degenerative joint disease of the right knee.) 2. The AOJ must ensure that all medical examination reports and opinion reports comply with this remand and the questions presented herein. If any report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 3. Thereafter, re-adjudicate the issues of entitlement to service connection for a right knee disability and for entitlement to a disability rating greater than 30 percent for service-connected left knee disability, status post total knee replacement, since October 1, 2013. The AOJ should also consider whether a rating of TDIU is warranted, or whether referral for extraschedular consideration is appropriate, as part of its readjudication of the Veteran's claim for a higher rating for his service-connected left knee disability. If a benefit sought on appeal is not granted, the Veteran and his representative must be furnished a supplemental statement of the case (SSOC) and afforded the appropriate time period for response. (The SSOC should also address the TDIU issue unless that benefit is granted.) No action is required of the Veteran until he is notified by the AOJ. However, he is advised that failure to report for any scheduled examination may result in the denial of his claims. 38 C.F.R. § 3.655 (2013). By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified. The Veteran 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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs