Citation Nr: 1607606 Decision Date: 02/26/16 Archive Date: 03/04/16 DOCKET NO. 97-18 385 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to a rating in excess of 20 percent for postoperative residuals of the right knee with degenerative joint disease prior to January 6, 1999 and from April 1, 1999 to December 11, 2011. 2. Entitlement to a rating in excess of 60 percent for postoperative residuals of the right knee with degenerative joint disease for the period from June 1, 2013. 3. Entitlement to special monthly compensation (SMC) under the provisions of 38 U.S.C. §1114(k) for loss of use of the Veteran's right foot/leg. 4. Whether the service-connected chronic kidney disease disability is permanently and totally disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from August 1990 to October 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, and January 2015, March 2015 and April 2015 rating decisions of the RO in Indianapolis, Indiana. The June 1996 rating decision granted an increased 20 percent rating of residuals of a surgical procedure of the right knee, effective February 26, 1996. In the January 2015 rating decision, the RO, in part, granted service connection for chronic kidney disease secondary to hypertension at an initial 60 percent evaluation, effective October 24, 2013. The March 2015 rating granted an increased 60 percent rating of right knee degenerative joint disease, status post total knee replacement, effective June 1, 2013. In an April 2015 supplemental statement of the case (SSOC), the RO denied a rating in excess of 60 percent for postoperative residuals of the right knee with degenerative joint disease for the period from June 1, 2013, to include consideration for SMC for loss of use of the foot. In August 2003, the RO granted a temporary total rating for the right knee disability, effective from January 6, 1999 to March 1, 1999 for convalescence from right knee surgery. In October 2006, the RO in Philadelphia, Pennsylvania granted an extension of the temporary total rating to April 1, 1999, and a 20 percent rating thereafter. In March 2012, the RO in Indianapolis, Indiana granted a temporary total rating for convalescence following surgery for a total right knee replacement, effective December 12, 2011 to January 31, 2013 with a minimum rating of 30 percent thereafter under 38 C.F.R. § 4.71a , Diagnostic Code 5055 for a right knee prosthesis. The Board notes that because the 100 percent rating assigned to the Veteran's service-connected right knee disability is the maximum rating available for this disability, a higher rating claim for a right knee disability for the time periods where the Veteran had been a 100 rating are no longer on appeal. In March 2004, February 2008 and October 2010, the Board remanded the issue of entitlement to an increased rating for a right knee disability for additional development. The Veteran testified before the Board by a videoconference hearing in November 2007. A transcript of the hearing has been associated with the claims file. In February 2012, the Board informed the Veteran that the Acting Veterans Law Judge who presided at the November 2007 hearing was no longer employed by the Board and that the Veteran was entitled to another hearing. See 38 U.S.C.A. § 7107(c) (West 2002) (providing that the member or members designated to conduct a hearing shall participate in making the final determination of a claim on appeal). In a March 2012 correspondence, the Veteran requested a new hearing before the Board sitting at the RO in Philadelphia. In March 2012, the Board remanded the issue of entitlement to an increased rating for a right knee disability in order the Veteran to be scheduled for a new hearing. While the Veteran was scheduled for a new hearing, in a February 2013 correspondence, the Veteran cancelled this hearing, and has not requested that a new hearing be scheduled. As such, his hearing request is deemed withdrawn. See 38 C.F.R. §§ 20.702(e); 20.704(e) (2015). The Board notes that there is an electronic claims file associated with the Veteran's claim, which contains relevant evidence that will be considered by the Board in this appeal. The issues of entitlement to service connection for posttraumatic stress disorder (PTSD), entitlement to an automobile allowance, and entitlement to basic eligibility for assistance in acquiring specially adaptive housing have been raised by the record in an April 8, 2015 statement, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The issue of whether the service-connected chronic kidney disease disability is permanently and totally disabling is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. For the periods from January 6, 1999 and from April 1, 1999 to December 11, 2011, the Veteran's right knee disability had not been manifested by a marked knee disability, flexion limited to 30 degrees or less, or moderate recurrent subluxation or lateral instability. 2. For the period from May 12, 2005 to March 24, 2006, the Veteran's right knee disability was manifested by limitation of extension to 15 degrees. 3. For the period from April 11, 2008 to November 9, 2009, the Veteran's right knee disability was manifested by limitation of extension to 10 degrees. 4. For the period since June 1, 2013, the 60 percent rating currently in effect is the maximum schedular rating for service-connected right knee replacement with limited range of motion. 5. The preponderance of the medical and lay evidence supports a finding that the Veteran retains effective function in his right foot/leg. CONCLUSIONS OF LAW 1. For the periods from January 6, 1999 and from April 1, 1999 to December 11, 2011, the criteria for a disability rating in excess of 20 percent rating for postoperative residuals of the right knee with degenerative joint disease prior to have not been met. 38 U.S.C.A. §§1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5255, 5257, 5260, 5261, 5262 (2015). 2. For the period from May 12, 2005, to March 24, 2006, the criteria for a separate 20 percent disability rating for limitation of extension of the right knee have been met. 38 U.S.C.A. §§1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261 (2015). 3. For the period from April 11, 2008, to November 9, 2009, the criteria for a separate 10 percent disability rating for limitation of extension of the right knee have been met. 38 U.S.C.A. §§1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261 (2015). 4. For the period since June 1, 2013, the criteria for a rating higher than 60 percent for postoperative residuals of the right knee with degenerative joint disease have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055 (2015). 5. The criteria for entitlement to special monthly compensation under 38 U.S.C.A. § 1114(k) for loss of use of the Veteran's right foot/leg have not been met. 38 U.S.C.A. §§ 1114(k), 5107 (West 2002); 38 C.F.R. § 3.350(a) (2) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice 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. Notice should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a notice letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In a May 2008 letter, the RO letter explained what information and evidence was needed to substantiate a claim for increased ratings, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The May 2008 letter provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). After issuance of the May 2008 letter, and opportunity for the Veteran to respond, the January 2015 and an April 2015 supplemental statement of the cases (SSOCs) reflect readjudication of the claims. Hence, the Veteran is not shown to be prejudiced by the timing of the latter notice. See Mayfield, 20 Vet. App. at 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). To the extent that notice specific to the claim for SMC under the provisions of 38 U.S.C. § 1114(k) for loss of use of the Veteran's right foot/leg was required, the Board finds that the Veteran had actual notice of the necessary evidence, and that he has not been prejudiced by any technical notice deficiency in this regard. Accordingly, the duty to notify has been fulfilled. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters on appeal. Pertinent medical evidence associated with the claims file consists of private, service, VA treatment records and the reports of June 1996, August 1997, April 2000, June 2000, May 2005, March 2006, April 2008, November 2009, June 2013 and January 2015 VA examinations. The June 1996, August 1997, April 2000, June 2000, May 2005, March 2006, April 2008, November 2009, June 2013 and January 2015 VA examination reports reflect that the VA examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate evaluation of the Veteran, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. As such, the Board finds that the June 1996, August 1997, April 2000, June 2000, May 2005, March 2006, April 2008, November 2009, June 2013 and January 2015 VA examinations are sufficient upon which to base a decision with regard to these claims. See 38 C.F.R. § 4.2 (2014); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Also of record and considered in connection with the appeal are the various written statements provided by the Veteran and by the Veteran's representative and the Veteran's hearing testimony. The Board finds that no additional RO action to further develop the record on the claim is warranted. As noted above, in November 2007 the Veteran was afforded a videoconference hearing before an Acting Veterans Law Judge (AVLJ) during which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c) (2) (2011) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the AVLJ fully explained the issue on appeal during the hearing and suggested the submission of evidence that would be beneficial to the Veteran's claim. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c) (2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c) (2). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Increased Ratings Laws and Regulations The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2015). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2015). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2015). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2015). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2015). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2015). The Court has held 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 (2015) and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45 (2015). See, e.g., DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. §4.40 state that the disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. According to this regulation, it is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the Veteran undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. See 38 C.F.R. § 4.40 (2015). In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of right knee pain. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities. His statements have been consistent with the medical evidence of record, and are probative for resolving the matter on appeal. The Board will consider not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. The Veteran filed an increased rating claim for his service-connected right knee disability that was received by VA on February 26, 1996. From February 26, 1996 to January 6, 1996 and from April 1, 1999 to December 11, 2011, the Veteran's right knee disability was evaluated at a 20 percent disability rating under Diagnostic Codes 5010-5260. Since June 1, 2013, the Veteran's postoperative residuals of the right knee with degenerative joint disease have been evaluated as 60 percent disabling under Diagnostic Code 5055. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Diagnostic Code 5010 is applicable to arthritis, and Diagnostic Code 5260 is applicable to knee flexion. Diagnostic Code 5055 is applicable to knee replacement (prosthesis). Traumatic arthritis will be rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative 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. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate Diagnostic Codes, a 10 percent evaluation is assignable 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. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under Diagnostic Code 5055, for one year following implantation of knee prosthesis for service-connected knee disability, a 100 percent rating is assigned. Thereafter, a 60 percent rating is assigned when there are chronic residuals consisting of severe painful motion or weakness in the affected extremity; or, a minimum 30 percent rating is assigned. When there are intermediate degrees of residual weakness, pain, or limitation of motion, these intermediate residuals are to be rated by analogy under 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5261, or 5262. The Board observes that the words "slight," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. §4.6. Under Diagnostic Code 5260 for limitation of flexion of the leg, a 20 percent rating applies if there is flexion limited to 30 degrees; a 10 percent rating applies if there is flexion limited to 45 degrees; and a 0 percent rating applies if there is flexion limited to 60 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261 for limitation of extension of the leg, a 50 percent rating applies if there is extension limited to 45 degrees; a 40 percent rating applies if there is extension limited to 30 degrees; a 30 percent rating applies if there is extension limited to 20 degrees; a 20 percent rating applies if there is extension limited to 15 degrees; a 10 percent rating applies if there is extension limited to 10 degrees; and a 0 percent rating applies if there is extension limited to 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Under Diagnostic Code 5257 for other impairments of the knee, a 30 percent rating applies if there is severe recurrent subluxation or lateral instability. A 20 percent rating applies if there is moderate recurrent subluxation or lateral instability. A 10 percent rating applies if there is slight recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Diagnostic Code 5258, Cartilage, Semilunar, Dislocated, provides a 20 percent rating for frequent episodes of locking, pain, and effusion. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Diagnostic Code 5259, Cartilage, Semilunar, Removal, symptomatic, provides for a 10 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5259. The VA's General Counsel concluded that a veteran with arthritis and instability of the knee may be assigned separate disability ratings under Diagnostic Codes 5003 and 5257. See VAOPGCPREC 23-97. Separate ratings may also be assigned for limitation of extension and limitation of flexion. VAOPGCPREC 9-2004. Therefore, if warranted by the evidence, the rating schedule allows for a separate rating for subluxation or lateral instability of the knee under Diagnostic Code 5257, whether it is slight, moderate, or severe, in addition to ratings for limitation of flexion under Diagnostic Code 5260 and limitation of extension under Diagnostic Code 5261. The Schedule provides that the normal range of motion of the knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Factual Background A February 1996 x-ray of the right knee demonstrated right sided degenerative joint disease with prior arthroplastic surgery. The Veteran underwent a VA examination in June 1996. The examiner noted that the Veteran had two prior surgeries on his right knee. On examination, the right knee revealed global tenderness and mild global swelling. His patellar motion was decreased. Extension was to 0 degrees. Flexion was limited to 90 degrees. There was global ligamentous laxity. The diagnosis was post-operative right knee secondary to medial meniscus tear and anterior cruciate ligament reconstructive surgery, degenerative joint disease of the right knee and recent internal derangement of the right knee with decreased range of motion. The Veteran underwent a VA examination in August 1997. The Veteran reported that his knee pain worsened when he went up and down stairs. On examination, he had minimal effusion in the right knee. There was no joint line tenderness but he did have some tenderness along the posterior medial aspect of his knee. The Veteran seemed to have a stable end point to anterior drawer and Lachman test. However, he did not have a positive pivot shift exam. He did have a palpable click to McMurray's test on the right knee medial compartment. His range of motion of the right knee was from 0 to 110 degrees. The diagnosis was status post right knee ACL reconstruction and rule out meniscal tear of the right knee although he did have some signs of meniscal pathology. A February 2000 private treatment note reported that there was no ligamentous laxity and no effusion. The Veteran also had full range of motion of both knees. The Veteran underwent a VA examination in April 2000. It was noted that the Veteran had undergone 3 surgeries on his right knee. He reported having achy pain in the knee. He could walk any distance without limitation but the further he walked the more his right knee hurt. On examination, there was no joint instability. The diagnosis was status post-arthroscopic surgery of the right knee for a meniscal tear times 3. There was no incoordination or fatigability and no laxity of the joint at this time. The Veteran underwent a VA examination in June 2000. The Veteran continued to have chronic daily pain in his right knee joint which was worse with walking up and down the stairs, overexertion and stooping or carrying objects. On examination, there was chronic boggy swelling and tenderness of the right knee. There was no evidence of any laxity or subluxation and anterior drawer sign and Lachman's sign was negative. Passive range of motion at the knee joint demonstrated flexion from 0 to 90 degrees. Extension was full at 0 degrees. There was no evidence of easy fatigability, incoordination, no weakened motion, no additional loss of range of motion and no evidence of any subluxation or instability. The diagnosis was degenerative arthritis of the right knee joint. There was no evidence of subluxation or laxity noted. Additional loss of range of motion during a flare-up was impossible to determine at the time. In October 2003, a private physician noted that the Veteran's right knee swells if he stood on it for a long time. It was also difficult for the Veteran to climb or descend stairs. On examination, his gait was guarded but within normal limits. There was an obvious valgus inclination of the right knee when compared to the left. Active flexion was from 0 to 120 degrees. There was medial and lateral stability. There was "exquisite tenderness" noted at the medial joint line. A January 2004 private treatment report noted that flexion was from 0 to 95 degrees with good stability. In another January 2004 record, the same private physician noted that the Veteran had an acute phase of tricompartmental arthritis of both knees. As a result he had restrictions that included no carrying, climbing, kneeling or exposure to damp and cold climate conditions. In March 2005, a private physician noted that the Veteran had intractable bilateral knee pain which was due to advanced osteoarthritis and ligamentous insufficiency in both knees. The Veteran underwent a VA examination in May 2005. On examination, his gait was slow but the examiner noted no definite limp and the Veteran walked unassisted. Both knees looked normal and there was no laxity. The right knee demonstrated extension to 15 degrees and flexion to 30 degrees. He was not capable of repetitive motion and the issue of range of motion being additionally limited by pain, fatigue, weakness or lack of endurance could not be addressed. The Veteran underwent a VA examination in March 2006. The Veteran had subjective complaints of constant pain and stiffness with weakness and locking of both knees in the morning with constant instability. He had difficulty with prolonged standing and walking for more than 15 minutes to a half hour. Right knee range of motion was from 0 degrees of extension to 100 degrees of flexion. There was pain with ranges of motion. With repetitive use the range of motion was not additionally limited by pain, fatigue, weakness or lack of endurance. The examiner could not appreciate any instability of the knees. The Veteran had difficulty standing or walking for more than 15 minutes to a half hour. The diagnosis was moderate knee strain bilaterally with chondromalacia and osteoarthritis of both knees that was moderately active. The Veteran underwent a VA examination in April 2008. The examiner noted that the Veteran had undergone 3 surgeries on his right knee including the most recent surgery in 2000. He medically retired in 2005 from his job as a prison guard due to his knee disorders and currently worked as a veterans service organization representative. He reported that he could only walk 2 to 3 blocks. The knees were painful at all times but there was no buckling history. He experienced no spontaneous flare-ups. His gait was without any assistive devices and was not antalgic but rather slow. There was no laxity. Extension was to 10 degrees. Right knee flexion was from 0 to 70 degrees with a painless range of motion. There was no additional limitation of motion due to pain, fatigue, weakness, and/or lack of endurance. The Veteran underwent a VA examination in November 2009. On examination, his gait was observed to be normal without assistive device. The right knee had some swelling that was consistent with a small degree of effusion. Range of motion was from 0 degrees of extension to 90 degrees of flexion and after repetitive motion; there was no additional limitation of motion due to pain, fatigue, weakness or lack of endurance. The diagnosis was status post right knee ACL repair with degenerative joint disease, traumatic in origin. A subsequent addendum also dated in November 2009 noted that there was no evidence of recurrent subluxation or lateral instability of the right knee. In April 2012, the Veteran underwent a right knee antibiotic spacer placement for periprosthetic joint infection. It was noted that he had previously undergone total knee replacement surgery in December 2011. A June 2012 private treatment report, a physician noted that the Veteran's right knee was stiff, sore and swollen but doing well. Flexion was from 0 to 70 degrees and there was no instability. The Veteran underwent a VA examination in June 2013. The examiner noted that the Veteran had a history of 4 surgeries. The Veteran reported constant right knee pain. The Veteran worked for the American Legion but retired in 2013 as a result of his bilateral knee condition and his depression. He reported flare-ups in his right knee when standing for more than 15 minutes or with sitting for more than 30 minutes. Right knee flexion was from 0 to 60 degrees with painful motion. Extension was 0 degrees with no evidence of painful motion. There was no change in motion after repetitive use testing. Instability testing was normal. There was no history or recurrent patellar subluxation or dislocation. The Veteran reported a leg discrepancy of 1/4 inch as the right leg was shorter than the left leg. The examiner noted that there was no functional impairment of the extremities such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. The examiner indicated that the Veteran was not capable of returning to work on a permanent basis. The Veteran underwent a VA examination in January 2015. It was noted that the Veteran had a history of a meniscal tear, an ACL tear, osteoarthritis and a right knee fracture. The Veteran did not report that flare-ups impacted the function of his lower leg. He did however report constant knee pain with kneeling or squatting, transferring positions, sitting 10 minutes, standing 5 minutes, walking one block, climbing up or down steps, and/or lifting and/or carrying 10 pounds. Flexion was from 0 to 90 degrees and extension was from 90 to 0 degrees. After repetitive motion, there was no additional limitation of motion due to pain, fatigue, weakness or lack of endurance. There was no ankylosis and joint stability testing was normal. The Veteran used a cane, shower chair, and elevated toilet seat for his right knee condition. There was no functional impairment of an extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. The examiner concluded that the Veteran's right knee condition precluded him from an occupation requiring prolong or constant sitting or weightbearing activity such as standing, walking, kneeling, squatting, stairclimbing or lifting or carrying objects heavier than 10 pounds. With appropriate accommodations however, he may be reasonably expected to function in a sedentary capacity. In a February 2015 addendum opinion, the January 2015 VA examiner indicated that there was no additional limitation in range of motion with repetitive-use testing any that any functional loss and/or functional impairment was due only to the aforementioned limitation of range of motion and pain on movement. Rating in excess of 20 percent prior to January 6, 1999 and from April 1, 1999 to December 11, 2011 After a review of the claim file, the Board finds that a disability rating in excess of 20 percent for the periods from January 6, 1999 and from April 1, 1999 to December 11, 2011, is not warranted. The Veteran's disability has been evaluated based on limitation of flexion of the knee. The Veteran's range of motion is shown, at its most limited, to be 0 to 30 degrees as evidence by the May 2005 VA examination. Notably, multiple VA examinations both before and after the May 2005 VA examination demonstrated significantly greater flexion readings for the Veteran's right knee. The April 2008 VA examiner had the second worst readings which demonstrated flexion from 0 to 70 degrees. Regardless of the disparity, the May 2005 reading of 0 to 30 degrees of flexion still warrants only a disability rating of 20 percent under Diagnostic Code 5260. Accordingly, an increased rating under Diagnostic Code 5260 based on limitation of flexion is not warranted at any time during the course of the appeal. With respect to range of extension the Board notes that the majority of the Veteran's recorded extension of the right knee has been to 0 degrees which is consistent with a noncompensable evaluation. However, the May 2005 recorded limitation of extension to 15 degrees which is consistent with a 20 percent disability evaluation under Diagnostic Code 5261. Range of extension approved to 0 degrees in the March 2006 examination which warrants a noncompensable rating under Diagnostic Code 5261. Accordingly, the Board finds that a separate 20 percent disability rating is warranted for limitation of extension from May 12, 2005, to March 24, 2006 as the record shows compensable limitation of motion of both flexion and extension of the right knee. The Board observes that the report of subsequent VA examination on April 11, 2008, demonstrates that extension was limited to 10 degrees. This finding is consistent with a 10 percent evaluation under Diagnostic Code 5261. Subsequent records starting with the report of a November 9, 2009, VA examination report show that extension improved to 0 degrees of flexions which warrants a noncompensable evaluation. As the Veteran's 20 percent disability rating has been assigned based on limitation of flexion and the Veteran shows that limitation of extension was presented for the period of April 11, 2008 to November 9, 2009, the Board finds that a separate rating of 10 percent is warranted for this period. Further, at no time has his extension of the right knee been limited to 20 degrees or more to warrant a rating in excess of 20 percent. Again, the Veteran's worse extension reading occurred at the May 2005 VA examination which demonstrated 0 to 15 degrees of extension which warrants a 20 percent disability rating. The medical evidence of record also does not show that the Veteran's right knee is ankylosed. Accordingly, a rating in excess of 20 percent is not warranted under Diagnostic Code 5256. 38 C.F.R. § 4.71a, Diagnostic Code 5256 (2015). In addition, the evidence of record does not show that the Veteran experiences nonunion of the tibia and fibula with loose motion. Accordingly, a rating in excess of 20 percent is not warranted under Diagnostic Code 5262. 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2015). Moreover, given that there is no evidence of recurrent subluxation or lateral instability of the knee, or dislocated cartilage with frequent episodes of locking, pain, and effusion, or removal of semilunar cartilage following the Veteran's total knee replacement surgery, separate and/or higher ratings under Diagnostic Codes 5257, 5258 and 5259 are not appropriate. 38 C.F.R. § 4.71a, Diagnostic Code 5257, 5258 and 5259 (2015). As regards the DeLuca factors, the Board acknowledges the evidence of some pain on motion and the Veteran's complaints of constant pain and these symptoms have been considered the rating assignment discussed above. DeLuca, 8 Vet. App. at 206. An increased rating, however, is not warranted based on these factors alone. In this regard, while VA examiners recorded that the Veteran had painful motion, there was no additional limitation of flexion or extension of the right knee. Without clinical medical evidence indicating such additional functional limitation, the Board is unable to find that the Veteran's pain is so disabling as to actually or effectively limit flexion or extension of the right lower extremity to such an extent as to warrant assignment of a higher rating than those presently assigned. In sum, the evidence preponderates against finding that, at any pertinent point during the appellate term at issue that symptoms of pain, fatigue, weakness, lack of endurance, and/or incoordination were so disabling to support assignment of a rating in excess of 20 percent any applicable diagnostic code predicated on limitation of motion. See DeLuca, supra. Accordingly, the Board finds that the medical evidence of record does not show that the Veteran experienced pain or other symptoms which caused additional limitations sufficient to warrant a rating in excess of the 20 percent assigned for the periods from January 6, 1999 and from April 1, 1999 to December 11, 2011, other the assignment of separate disability rating based on limitation flexion as noted above. To conclude, as the preponderance of the evidence is against the claim for a rating in excess of 20 percent for postoperative residuals of the right knee with degenerative joint disease with limited flexion, prior to January 13, 2015, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). However, separate disability ratings of 20 percent from May 12, 2005, to March 24, 2006, and 10 percent from April 11, 2008, to November 9, 2009, are warranted for limitation of extension of the right knee. Rating in excess of 60 percent for the period from June 1, 2013 The Veteran is also already in receipt of the maximum schedular disability ratings available under all other applicable knee and leg codes under 38 C.F.R. § 4.71a. The knee and leg regulations do not provide for a disability rating in excess of 60 percent. Accordingly, the Veteran is not entitled to a disability rating in excess of 60 percent for his right knee disability for the period since June 1. 2013. In reaching this conclusion, the Board observes that higher disability ratings are warranted under Diagnostic Codes 5160 and 5161 for amputation of the upper third of the thigh or amputation of thigh with disarticulation and loss of extrinsic pelvic girdle muscles. However, at no time during the course of the appeal has the Veteran's right knee resulting in symptoms analogous to such amputation. Neither the Veteran nor his representative has identified any other rating criteria that would provide a higher rating or an additional rating aside from a higher rating based on loss of use of the right foot which will be addressed below. The potential applications of various provisions of Title 38 of the Code of Federal Regulations (2015) have been considered whether or not they were raised by the veteran as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Board finds no other applicable rating criteria that would provide a higher rating or an additional rating. The Board has considered whether there is any other schedular basis for granting the claim but has found none. Accordingly, a 60 percent rating is clearly the maximum rating assignable for the Veteran's right knee replacement with limited range of motion. An increased schedular rating is therefore not available for the period since June 1, 2013. Extraschedular Consideration. The Board has also considered the question of whether an extraschedular rating may be appropriate for the Veteran's service-connected right knee disability. See Bagwell v. Brown, 9 Vet. App. 157 (1996). Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent period of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.21(b) (1) (2014). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. The Veteran has not identified any factors which may be considered to be exceptional or unusual, and the Board has been similarly unsuccessful. There is no evidence in the medical records of an exceptional or unusual clinical picture. The record demonstrates that the Veteran has not required hospitalization as a result of her service-connected right knee disability for the periods not already contemplated by the temporary 100 percent evaluations for convalescence. Further, the record does not demonstrate any other reason why an extraschedular rating should be assigned. Accordingly, the Board therefore has determined that referral of the case for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b) (1) is not warranted. SMC - Loss of Use The Veteran has also maintained that he should be entitled to a rating in excess of 60 percent for his right knee for the period since June 1, 2013 based on loss of use of the right foot. Specifically, the Veteran has argued that the Veteran is entitled to a higher rating based on the shortening of his right leg in comparison with that of his left leg. The Board notes that SMC has already been granted for the loss of use of a creative organ. SMC under 38 U.S.C. 1114(k) is payable for each anatomical loss or loss of use of one foot. 38 C.F.R. § 3.350(a). Loss of use of a foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of balance, propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 3.350(a) (2) (i). The regulations further provide that extremely unfavorable complete ankylosis of the knee, or complete ankylosis of two major joints of an extremity, or shortening of the lower extremity of 3 1/2 inches or more, will constitute loss of use of the foot involved; complete paralysis of the external popliteal nerve (common peroneal) and consequent footdrop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve, will be taken as loss of use of the foot. 38 C.F.R. § 3.350(a) (2) (i) (a) and (b). The Board acknowledges the assertions made by the Veteran and finds them both competent and credible. It does not find, however, that the preponderance of the evidence supports a finding that he is entitled to SMC under the provisions of 38 U.S.C. § 1114(k) for loss of use of his right foot/leg. The regulations discussed above clearly define what loss of use of a foot entails, namely that it will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below knee with use of a suitable prosthetic appliance. The regulations further provide that the determination as to whether loss of use of the foot exists will be made on the basis of the actual remaining function, such as whether the acts of balance, propulsion, etc., could be accomplished equally well by an amputation stump with prosthesis. The Veteran has not claimed that no effective function remains in his right foot/leg. Nor has he asserted that he is unable to balance or propel using his right foot/leg. Rather, the Veteran has reported that he is still able to walk and stand. While the Board acknowledges the fact that the Veteran has great limitations in standing, walking and sitting as a result of his right knee disability, it is clear that the Veteran still retains effective function in his right foot/leg. Additionally, both the June 2013 and January 2015 VA examiners specifically determined that there was no functional impairment of the extremities such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. There is also no evidence of extremely unfavorable complete ankylosis of the knee, complete ankylosis of two major joints of an extremity, shortening of the lower extremity of 3 1/2 inches or more, or complete paralysis of the external popliteal nerve (common peroneal) and consequent footdrop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve. Rather, the Veteran is still able to perform range of motion testing in his right lower extremity. The January 2013 VA examiner also specifically found that there was a leg discrepancy of only 1/4 inch as the right leg was shorter than the left leg. As noted above, loss of use of the foot requires shortening of the lower extremity of 3 1/2 inches or more. While the Veteran's representative noted that the most recent VA examination in January 2015 did not provide measurements to address the shortening of the right leg, the Board also notes that the voluminous treatment records contain no current evidence of shortening of the lower extremity of 3 1/2 inches or more. Accordingly, the Board finds that entitlement to SMC under the provisions of 38 U.S.C. § 1114(k) for loss of use of the Veteran's right foot/leg is not warranted. ORDER Entitlement to a rating in excess of 20 percent for postoperative residuals of the right knee with degenerative joint disease prior to January 6, 1999 and from April 1, 1999 to December 11, 2011 is denied. A separate 20 percent rating based on limitation of extension of the right knee is granted for the period from May 12, 2005, to March 24, 2006. A separate 10 percent rating based on limitation of extension of the right knee is granted for the period from April 11, 2008, to November 9, 2009. Entitlement to a rating in excess of 60 percent for postoperative residuals of the right knee with degenerative joint disease for the period from June 1, 2013 is denied. Entitlement to special monthly compensation (SMC) under the provisions of 38 U.S.C. §1114(k) for loss of use of the Veteran's right foot/leg is denied REMAND One of the matters the Board must address is which issue or issues are properly before it at this time. Under the provisions of 38 U.S.C.A. § 7105(a), an appeal to the Board must be initiated by a notice of disagreement and completed by a substantive appeal after a statement of the case is furnished to the veteran. In essence, the following sequence is required: There must be a decision by the RO, the veteran must express timely disagreement with the decision, VA must respond by explaining the basis of the decision to the veteran, and finally the veteran, after receiving adequate notice of the basis of the decision, must complete the process by stating his or her argument in a timely- filed substantive appeal. See 38 C.F.R. §§ 20.200, 20.201, 20.202, and 20.203. As noted above, in a January 2015 rating decision, the RO, in part, granted service connection for chronic kidney disease secondary to hypertension at an initial 60 percent evaluation, effective October 24, 2013. The rating decision, in part, also denied service connection for diabetes mellitus and deferred the Veteran's claim for an increased rating for his service-connected left knee disability. In March 2015, the Veteran indicated that he disagreed with these findings of the January 2015 rating decision. The Veteran specifically noted that he disagreed with the evaluation of his chronic kidney disease/renal dysfunction disability as he felt that the disability was permanent. He also disagreed with the evaluation of his service-connected left knee disability and the denial of service connection for diabetes mellitus. In April 2015, the Veteran formally notified the RO that he wished to withdraw the issue of service connection for diabetes mellitus. In April 2015, the RO issued a statement of the case for the issues of entitlement to a separate evaluation for hypertension, entitlement to a rating in excess of 10 percent for the Veteran's left knee disability, and entitlement to service connection for hearing loss and a right hand condition. The Veteran did not perfect file a substantive appeal with regard to these issues. Also in an April 2015 correspondence, the Veteran clarified that while he was not appealing the initial 60 percent evaluation for his service-connected kidney/renal dysfunction disability, he was appealing the fact that a routine future examination was diaried for this condition. He indicated that he felt that this condition would not improve and therefore his 60 percent evaluation should be permanent. While the Veteran is currently only in receipt of a 60 percent disability rating, the Board will liberally construe the Veteran's March 2015 written statement and his April 2015 clarification correspondence as a notice of disagreement with the ancillary finding in the January 2015 rating decision that the initial 60 percent disability rating currently assigned for his service-connected chronic kidney disease secondary to hypertension is not permanent. While the Veteran expressed disagreement with the January 2015 rating decision regarding his chronic kidney function disability, it appears that no subsequent statement of the case was ever issued. Accordingly, under Manlincon v. West, 12 Vet. App. 238, 240 (1999), the Board must instruct the RO that the issue of whether the service-connected chronic kidney disease disability is permanently and totally disabling remains pending in appellate status (see 38 C.F.R. § 3.160(c)) and requires further action. See 38 U.S.C.A. § 7105; 38 C.F.R. § 19.26. In this regard, it is noteworthy that this claim is not before the Board at this time and will only be before the Board if the Veteran files a timely substantive appeal. The Board's actions regarding this issue are taken to fulfill the requirements of the Court in Manlincon. Accordingly, the case is REMANDED for the following action: The RO should issue a statement of the case to the Veteran addressing the matter whether the service-connected chronic kidney disease disability is permanently and totally disabling, including citation to all relevant law and regulation pertinent to this claim. The Veteran must be advised of the time limit for filing a substantive appeal. 38 C.F.R. § 20.302(b). Then, only if the appeal is timely perfected, these issues are to be returned to the Board for further appellate consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 2014). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs