Citation Nr: 1616095	
Decision Date: 04/21/16    Archive Date: 05/04/16

DOCKET NO.  10-02 738	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUES

1.  Entitlement to an initial evaluation in excess of 10 percent prior to June 15, 2011, and in excess of 60 percent on and after August 1, 2012, for service-connected traumatic arthritis of the right knee, status post right total knee arthroplasty (right knee disability).

2.  Entitlement to service connection for a right ankle and foot disorder, to include as secondary to a service-connected right knee disability.  

3.  Entitlement to a total disability evaluation based on individual unemployability (TDIU).  


REPRESENTATION

Veteran represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

Steve Ginski, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1980 to February 1983.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Chicago, Illinois.  

On his January 2010 substantive appeal, the Veteran requested a personal hearing before a Veterans Law Judge seated at the RO.  Such a hearing was scheduled for April 2012; however, the Veteran did not appear.  In a subsequent November 2013 statement received from his representative, the Veteran indicated he no longer desired a hearing, and wished his appeal to be adjudicated by the Board.  

This appeal was processed using the Veterans Benefits Management System (VBMS) and the Virtual VA electronic claims file.  Virtual VA contains VA examinations that were conducted in January 2014.  Otherwise, Virtual VA contains documents that are either duplicative of the evidence in the VBMS electronic claims file or not relevant to the issue on appeal.

During the pendency of the appeal, the RO assigned a 100 percent disability evaluation from June 15, 2011 and increased the disability rating for the Veteran's right knee disability to 60 percent, effective August 1, 2012.  Because the RO did not assign the maximum disability rating possible for the entire appeal period, the appeal remains in appellate status and is properly before the Board.  See AB v. Brown, 6 Vet. App. 35 (1993).

In December 2013, the Board remanded these claims for additional development.  They have been returned to the Board for appellate consideration.  

The issues of entitlement to service connection for a right foot or ankle disorder and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  Prior to June 14, 2011, the Veteran's right knee disability was not productive of actual or functional flexion limited to 30 degrees, actual or functional extension limited to 5 degrees, recurrent subluxation, lateral instability, ankyloses, dislocated cartilage with frequent episodes of locking, pain, and effusion into the joint, impairment of the tibia and fibula, or genu recurvatum.    

2.  On and after August 1, 2012, the Veteran's right knee disability is assigned the maximum schedular rating and the symptoms are contemplated by the rating criteria.


CONCLUSIONS OF LAW

1.  Prior to June 15, 2011, the criteria for the assignment of an evaluation in excess of 10 percent for the service-connected right knee disability have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5256, 5257, 5258, 5259, 5260, 5261, 5262, 5263 (2015).

2.  On and after August 1, 2012, the criteria for the assignment of an evaluation in excess of 60 percent for the service-connected right knee disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055 (2015).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim, and it must assist the claimant by making reasonable efforts to get the evidence needed.  38 U.S.C.A. §§ 5103(a), 5103A (West 2014); 38 C.F.R. § 3.159(b) (2015); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004).

Upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a)  and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The Veteran is challenging the evaluation assigned in connection with the grant of service connection for his right knee disability.  Where an underlying claim has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated, and there is no need to provide additional § 5103 notice or prejudice from absent notice.  Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007); VAOPGCPREC 8-2003 (Dec. 22, 2003).

In addition, the duty to assist the Veteran has also been satisfied in this case for the issue decided herein.  The Veteran's service treatment records as well as all identified and available post-service medical records are in the claims file.  The Veteran has not identified any available, outstanding records that are relevant to the claims decided herein.

The Veteran was afforded multiple VA examinations in connection with his claims, and the Board finds that the VA examination reports, when taken together, are adequate to decide the case because they are predicated on a review of the claims file, as well as on an examination during which a history was solicited from the Veteran.  In addition, the October 2007, April 2011, and January 2014 examinations, when taken together, fully address the rating criteria that are relevant to rating the disability in this case.  Moreover, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disability since he was last examined.  38 C.F.R. § 3.327(a) (2015).  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted.  Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (noting that the passage of time alone, without an allegation of worsening, does not warrant a new examination); VAOPGCPREC 11-95 (April 7, 1995).  Based on the foregoing, there is adequate medical evidence of record to make a determination in this case.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 

Finally, the AOJ substantially complied with the Board's December 2013 remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  Specifically, pursuant to the remand, a VA examination was obtained.  Thus, the AOJ has substantially complied with the Board's instructions.

For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case.  Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal.


II.  Increased Rating 

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where 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 for that rating. 38 C.F.R. § 4.7. 

In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. 

Where, as here, the question for consideration is a higher initial rating since the grant of service connection, evaluation of the medical evidence since the grant of service connection to consider the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required.  Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  However, where a veteran appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of the veteran's disability is the primary concern, and past medical reports should not be given precedence over current medical findings.  Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). 

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements.  The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled.  38 C.F.R. §§ 4.10, 4.40, 4.45.  VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40 , which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995).

Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).  Pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing.  Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above.  Therefore, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. 

The provisions of 38 C.F.R. § 4.14 do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups.  The guidance provided under DeLuca must be followed in adjudicating claims where a rating under the Diagnostic Code provisions governing limitation of motion should be considered.  However, the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. 
§ 4.45, should only be considered in conjunction with the Diagnostic Code provisions predicated on limitation of motion.  Johnson v. Brown, 9 Vet. App. 7 (1996).

The intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  It is the intention 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. 

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).  

Compensating a claimant for separate functional impairment under Diagnostic Code 5257 and 5003 does not constitute pyramiding.  See VAOPGCPREC 23-97 (July 1, 1997).  A veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5010 and 5257, provided that a separate rating must be based upon additional disability.  VAOPGCPREC 23-97.  When a knee disorder is already rated under Diagnostic Code 5257, the veteran must also have limitation of motion under Diagnostic Code 5260 or 5261 in order to obtain a separate rating for arthritis.  If the veteran does not at least meet the criteria for a zero percent rating under either of those codes, there is no additional disability for which a rating may be assigned. 

If a veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also x-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59.  See VAOPGCPREC 9-98.  In addition, a hypothetical situation in which a knee disability was evaluated under Diagnostic Code 5259 that was productive of pain, tenderness, friction, osteoarthritis established by x-rays, and a slight loss of motion was considered.  For the purposes of the hypothetical, it was assumed that Diagnostic Code 5259 did not involve limitation of motion.  Given the findings of osteoarthritis, the availability of a separate evaluation under Diagnostic Code 5003 in light of sections 4.40, 4.45, 4.59 must be considered.  See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991).  Absent x-ray findings of arthritis, limitation of motion should be considered under Diagnostic Codes 5260 and 5261.  The claimant's painful motion may add to the actual limitation of motion so as to warrant a rating under Diagnostic Codes 5260 or 5261. 

In addition, separate ratings may be assigned under Diagnostic Code 5260 and Diagnostic Code 5261 for disability of the same joint.  VAOPGCPREC 9-2004 (September 17, 2004).  

Diagnostic Code 5010 states that traumatic arthritis is to be rated as degenerative arthritis under Diagnostic Code 5003, which in turn, states that the severity of degenerative arthritis, established by X-ray findings, is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints affected, which, in this case, would be Diagnostic Codes 5260 (limitation of flexion of the leg) and 5261 (limitation of extension of the leg).  When there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation-of-motion code, a 10 percent rating will be assigned for each affected major joint or group of minor joints.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  In the absence of limitation of motion, a 10 percent evaluation is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003.

Under Diagnostic Code 5260, a 10 percent disability evaluation is assigned when flexion is limited to 45 degrees, and a 20 percent disability evaluation is warranted when flexion is limited to 30 degrees.  A 30 percent disability evaluation is assigned when flexion is limited to 15 degrees, which is the maximum evaluation available under Diagnostic Code 5260. 

Under Diagnostic Code 5261, a 10 percent disability evaluation is contemplated for extension limited to 10 degrees.  When there is limitation of extension to 15 degrees, a 20 percent disability evaluation is warranted.  A 30 percent rating will be assigned for extension limited to 20 degrees, and a 40 percent rating is contemplated for limitation of extension to 30 degrees.  A 50 percent disability evaluation is warranted for extension limited to 45 degrees.  The regulations provide that the normal range of motion of the knee is zero degrees on extension to 140 degrees on flexion.  38 C.F.R. § 4.71, Plate II. 

Under Diagnostic Code 5257, a 10 percent disability rating is assigned for slight recurrent subluxation or lateral instability.  A 20 percent disability rating is warranted when there is moderate recurrent subluxation or lateral instability, and a 30 percent disability rating requires severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257.  Under Diagnostic Code 5258, dislocated semilunar cartilage, with frequent episodes of locking, pain, and effusion into the joint, warrants a 20 percent disability rating.  38 C.F.R. § 4.71a, Diagnostic Code 5258.  Under Diagnostic Code 5259, a 10 percent disability evaluation is assigned for the symptomatic removal of semilunar cartilage.

Under Diagnostic Code 5262, pertaining to impairment of the tibia and fibula, a 10 percent disability rating is assigned for malunion with slight knee or ankle disability, and a 20 percent disability rating is warranted for malunion with moderate knee or ankle disability.  A 40 percent disability rating is appropriate where there is nonunion of the tibia and fibula with loose motion requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262.  Under Diagnostic Code 5263, a 10 percent disability rating is assigned for acquired, traumatic genu recurvatum with weakness and insecurity in weight-bearing objectively demonstrated.  38 C.F.R. § 4.71a, Diagnostic Code 5263.

The words "slight," "mild," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Rating Schedule. 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.  

Prior to June 15, 2011

From June 14, 2005, to June 15, 2011, the Veteran was in receipt of a 10 percent disability rating for his right knee under Diagnostic Code 5010-5260.  

August 2006 VA x-rays were conducted.  The report revealed marked narrowing of the right knee joint space and right femoropatellar joint space with marked irregularity of the articular surface.  There was minimal soft tissue calcification in the superior pole of the patellar area and anterior tibial tubercle area.  The radiologist reached an impression of marked degenerative osteoarthritis involving the right knee joint and right femoropatellar joint.  In a visit conducted later that month, a VA staff physician diagnosed the Veteran with bilateral knee pain with moderate to severe osteoarthritis.  During the clinical interview, the Veteran reported occasional locking and swelling, though he denied buckling of the knee.  

VA treatment dated from 2006 through 2010 notes document the Veteran receiving prescriptions of Vicodin to treat the pain resulting from the degenerative joint disease in his knees.  The Veteran also reported swelling and stiffness intermittently through this time period.  November 2009 treatment notes document physical therapy for the knee pain.  The Veteran reported that his knees "felt better but the pain comes and goes."  Other than pain, no other symptoms were noted.  The attending physical therapist noted that the Veteran's active range of motion was normal in his lower extremities, to include his right knee.  Strength of the right lower extremity was a four out of five.  Treatment notes from October 2009 indicate the Veteran had been using VA prescribed large hinge knee brace to treat his knee symptoms.  Otherwise, VA treatment notes from 2007 through 2009 do not document limited range of motion or instability.  The records are significant for documenting moderate to severe degenerative changes and pain.  X-rays from September 2009 showed degenerative joint disease of the knees.  

An October 2007 VA examination was conducted upon a review of the claims file.  The Veteran reported swelling and pain in his right knee.  He also indicated that his right knee would give out at times.  On physical examination, the Veteran walked with a mild limp.  The right knee had moderate medial spurring.  Flexion was from zero to 90 degrees at which point there was significant pain and weakness.  The examiner found significant atrophy of the medial muscle on the thigh of the right knee.  The examiner noted significant crepitus with motion.  The Veteran's ligaments were intact in the right, with negative Lachman and drawer sign.  The examiner stated that there was marked lack of endurance but no lack of coordination on examination.  There was marked restriction of repetitive-use.  The examiner noted there was no evidence of increased loss of function due to flare-up.

An April 2011 VA examination was conducted.  During the interview, the Veteran reported not being able to stand or walk any distance when he knee was bothering him at work.  He had difficulty with bending, squatting, kneeling, or with stairs.  The examiner noted that the Veteran was tentatively scheduled for a total knee arthroplasty.  On examination, palpation revealed no effusion.  There was medial and lateral parapatellar pain and medial joint line pain.  Range of motion testing revealed flexion from zero to 95 degrees with pain.  Motion repeated three times had crepitus at 40 degrees.  The examiner found upon consideration of Deluca, painful motion began at 40 degrees, and limited motion was to 45 degrees flexion.  There was moderate lack of endurance.  Varus, valgus, anterior drawer, posterior drawer, and Lachman's tests were all negative.  The meniscal signs were painful.  Motor strength was 5/5.  The examiner indicated he was unable to specify any additional functional impairment due to pain, pain on repetitive use, fatigue, weakness, lack of endurance, or incoordination without resorting to speculation.  The examiner concluded by noting no change in strength, stability, or degrees of motion on repetitive-use testing.  

The Board finds that a rating in excess of 10 percent is not warranted.  Here, there is no evidence of occasional incapacitating exacerbations.  See 38 C.F.R. § 4.71a, Diagnostic Code 5003.  Additionally, the evidence doesn't show flexion limited to 30 or less, even when considering functional loss.  See 38 C.F.R. § 4.71a, Diagnostic Code 5260.  Initially, the Board notes that the October 2007 and April 2011 VA examinations are somewhat ambiguous with regard to the full extent of additional functional impairment as a result of his right knee disability.  The October 2007 examiner found 90 degrees of flexion with marked lack of endurance and restriction of repetitive-use, but did not provide any additional limitation of motion values or estimation thereof for the right knee.  The April 2011 examiner, found painful motion at 40 degrees flexion, but limited motion to 45 degrees flexion due to moderate impairment of endurance.  Interpreting the examinations in the light most favorable to the Veteran, and reconciling the two examinations, it appears that when considering all functional loss, there is flexion to 45 or 40 degrees, as the 2007 examination did not provide any such values, but noted marked lack of endurance and additional restriction upon repetition.  This finding, however, does not warrant a higher evaluation. Thus, a disability rating in excess of 10 percent under Diagnostic Code 5260 is not warranted.  

The Board has considered all potentially applicable codes.  See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991).  A separate or higher disability rating under Diagnostic Code 5261 is not warranted.  The Veteran demonstrated full extension to zero degrees during October 2007 and April 2011 VA examinations.  VA treatment notes document full range of motion on numerous occasions over the course of this portion of the appeal period.  Accordingly, a higher or separate disability rating under Diagnostic Code 5261.

The Board also finds that Diagnostic Code 5256 (ankylosis), Diagnostic Code 5257 (recurrent subluxation or lateral instability), Diagnostic Code 5262 (impairment of the tibia and fibula) and Diagnostic Code 5263 (genu recurvatum) are not applicable here, as the evidence does not show that the Veteran has any of these manifestations.  Although there was evidence of meniscal pain, the Veteran's functional loss symptoms of pain, swelling, and lack of endurance are considered within the 10 percent evaluation.  See Diagnostic Code 5259.  Additionally, although the Veteran reported locking, the evidence does not indicate dislocated semilunar cartilage with episodes of locking.  See Diagnostic Code 5258.

Regarding recurrent subluxation or lateral instability, the Veteran's October 2007 report that his knees would give out at times.  He also reported locking in an August 2006 VA treatment visit.  However, all objective stability tests have been negative for instability over the course of the appeal period.  The Veteran is competent to report experiencing symptoms such as feeling knee instability and locking; however, physical examinations performed by medical professionals provide affirmative evidence that there was no clinical evidence of instability.  Indeed, the examiners performed tests specifically used to assess whether there is instability.  The Board finds that the examiners' findings outweigh the Veteran's lay statements regarding instability and locking.  This is because the determinations that the examiners made are based upon clinical examination, medical knowledge, and appropriate testing, such as x-rays.  The Board thus finds that the examiner's findings are assigned more weight.

The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and DeLuca.  However, an increased rating for the right knee disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the 10 percent rating assigned for the relevant appeal period.  In this regard, the Board observes that the Veteran's complaints of pain and limitations due to pain are expressly contemplated in the 10 percent presently assigned.  The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation for these time periods.  Specifically, even when considering the effect of the Veteran's pain and other functional loss, he still demonstrated range of motion following repetitive use of flexion to at least 45 degrees in his right knee.

Finally, the Veteran did not appeal the evaluation assigned to the right knee scar, which was granted service connection in the February 2008 rating decision.  Accordingly, no separate evaluation on this basis is considered herein.  

Accordingly, the Board concludes that an evaluation in excess of 10 percent for the right knee is not warranted for the period between June 14, 2005 and June 15, 2011.  There is no reasonable doubt to be resolved in this matter.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  

On and after August 1, 2012

At the January 2014 VA examination, the Veteran reported knee pain.  He used a cane, could only walk for 1 to 2 blocks, and had to stop because of the sharp pain.  He denied swelling.  There was no additional limitation in the range of motion of the knee upon repetitive use testing.  Upon repetitive use, there was less movement than normal, incoordination, pain on movement, and interference with sitting, standing, and weight bearing.  There was 5/5 motor strength.  The right knee was normal to instability testing.  The examiner found chronic residuals consisting of severe painful motion or weakness.  

From June 15, 2011, to August 1, 2012, the Veteran right knee was evaluated as 100 percent disabling status post total knee arthroplasty.  On and after August 1, 2012, the Veteran's right knee was evaluated as 60 percent disabling.  These ratings were assigned pursuant to Diagnostic Code 5055.  Under Diagnostic Code 5055, following the prosthetic replacement of the knee joint, a 100 percent rating is warranted for one year following implantation of the prosthesis.  Thereafter, a 60 percent rating is assigned for a knee replacement, with chronic residuals consisting of severe painful motion or weakness in the affected extremity; otherwise the disability is evaluated based on intermediate degrees of residual weakness, pain or limitation of motion rated by analogy to ankylosis, or Diagnostic Codes 5261 (limitation of extension) or 5262 (impairment of the tibia and fibula), with 30-percent being the minimum rating assigned.  38 C.F.R. § 4.71a, Diagnostic Code 5505.  

The Board will analyze the portion of the appeal period after the Veteran's total knee arthroplasty with Diagnostic Code 5055 solely.  Where there is a diagnostic code that addresses the particular service-connected disability, to evaluate that disability under another code would constitute impermissible rating by analogy.  See Copeland v. McDonald, 27 Vet. App. 333, 336-37 (2015).  The Veteran underwent a total knee arthroplasty on June 15, 2011.  At that point, rating the Veteran's right knee disability under Diagnostic Code 5055 is proper.  

As noted above, the Veteran underwent a right total knee arthroplasty on June 15, 2011.  He was assigned a 100 percent evaluation from January 15, 2011 for 13 months following the prosthetic replacement of the right knee joint, or through July 31, 2011.  This is the maximum scheduler available period for a temporary 100 percent rating, and the Board will not address this time period any further.  

The Veteran's service-connected right knee disability has been assigned the maximum available rating pursuant to Diagnostic Code 5055 on and after August 1, 2012.  38 C.F.R. § 4.71a, Diagnostic Code 5055.  While the Board acknowledges that a 100 percent rating is assignable under Diagnostic Code 5055 and that it was assigned prior to the 60 percent disability rating, this total rating is only available for one year after the implantation of the prosthesis.  In the Veteran's case, the 100 percent rating was assigned and was effective from June 15, 2011 to August 1, 2012.  The current maximum available rating for the Veteran's service-connected disability under Diagnostic Code 5055 is 60 percent, which has already been assigned for this portion of the appeal.  Schedular ratings in excess of 60 percent are not available under the other diagnostic codes for the knees.  Importantly, ratings under separate diagnostic codes would not be appropriate.  Copeland, 27 Vet. App. 336-36.  

Finally, the Veteran did not appeal the evaluation assigned to the right knee scar, which was granted service connection in the February 2008 rating decision.  Accordingly, no separate evaluation on this basis is considered herein.  

Accordingly, a disability rating in excess of 60 percent for the Veteran's service-connected right knee disability under Diagnostic Code 5055 is not warranted from August 1, 2012.  There is no reasonable doubt to be resolved in this matter.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

Extraschedular Consideration

The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  See Thun v. Peake, 22 Vet. App. 111 (2008).  In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required.  Thun, 22 Vet. App. 111; VAOGCPREC 6-96 (Aug. 16, 1996).  Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization).

The evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate.  A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology.  Throughout the appeal period, the Veteran has reported knee pain, swelling, and other functional loss.  These manifestations of the Veteran's right knee disability, including pain and limitation of motion, are specifically contemplated by the schedular criteria.  The criteria expressly consider the Veteran's pain upon use, limitation of motion, and other functional limitations.  As discussed above, there are higher ratings available under the relevant diagnostic codes, but the Veteran's disability is not productive of such manifestations.  Post total knee arthroplasty, the schedular criteria reasonably describe the Veteran' symptoms, including chronic residuals consisting of severe painful motion or weakness.  In sum, the Board finds that the rating criteria contemplate the Veteran's right knee disability symptoms.

Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected right knee disability under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met.  Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008).


ORDER

Prior to June 15, 2011, a disability rating in excess of 10 percent for a right knee disability is denied.  

On and after August 1, 2012, a disability rating in excess of 60 percent for a right knee disability is denied.  


REMAND

Remand is necessary for the Veteran's claim of entitlement to service connection for a right foot or ankle disorder to ensure compliance with the remand directives of the December 2013 Board remand.  The Board is obligated by law to ensure that the RO complies with its directives.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  VA afforded the Veteran an examination in January 2014.  Although slightly unclear where the examiner was providing an opinion, it appears the examiner provided an opinion only on whether the Veteran's right ankle disorder caused by his service-connected right knee disability.  However, the examiner did not provide an answer as to whether the Veteran's right ankle disorder was caused by the service-connected right knee disability, whether the right foot or ankle disorders were aggravated by the right knee disability, and whether the right foot or ankle disorders were due to active service.  These opinions were requested in the December 2013 remand.  On remand, an addendum opinion must be obtained.  

Next, remand is required regarding TDIU for development of the claim.  If the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a TDIU as a result of that disability is warranted.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  In this case, the Veteran asserted in his January 2010 VA Form 9 that his knee disability had prevented him from going "back to work" and that he was unable to hold other jobs due to their physical nature.  Therefore, the AOJ should develop a claim for TDIU.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).

Accordingly, the case is REMANDED for the following action:

1.  Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment.  If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file.  Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile.  The non-existence or unavailability of such records must be verified and this should be documented for the record.  Required notice must be provided to the Veteran and his representative.  

2.  Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records.  Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file.  All information obtained must be made part of the file.  All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative.

3.  Develop the issue of entitlement to TDIU under the provisions of 38 C.F.R. § 4.16, based on impairment attributable to his service-connected disorder, in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009).  In so doing, the AOJ may decide to pursue further development of the Veteran's employment history or to obtain additional medical evidence or medical opinion, as is deemed necessary.

4.  After all additional records are associated with the claims file, obtain an addendum opinion from the examiner who provided the January 2014 opinions.  If the examiner is unavailable, the file should be referred to another similarly qualified medical professional.  The entire claims file should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review.  An explanation for all opinions expressed must be provided.

The examiner must provide the following opinion: 

(a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed right foot and ankle disorders had their onset in service, or are otherwise related to active service?

(b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed right foot and ankle disorders were caused by his service-connected right knee disability?

(c)  Is it at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed right foot and ankle disorder have been aggravated (permanently worsened) by his service-connected right knee disability?

5.  After the above development has been completed, obtain a social and industrial survey to ascertain the Veteran's employment functioning.  The claims file must be made available to the examiner.  Review of such must be noted.  The report from this survey must include comments on the Veteran's day to day functioning and the degree of social and industrial impairment which the Veteran experiences as a result of his service-connected disability.  Information must be sought from prior or recent employers regarding any work impairments and reasons for any cessation of work or quitting or firing.  The clinician should elicit and set forth pertinent facts regarding the Veteran's medical history, education and employment history, day-to-day functioning, and social and industrial capacity.  The ultimate purpose of the VA social and industrial survey is to ascertain the impact of the Veteran's service-connected disability on his ability to work. 

The surveyor is not limited to the foregoing instructions, but the individual conducting the survey may seek initial or additional development in any survey area that would shed more light on the Veteran's ability to secure or follow a substantially gainful occupation as a result of his service-connected disability.  

6.  Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims.  38 C.F.R. §§ 3.158, 3.655 (2015).  In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address.  It must also be indicated whether any notice that was sent was returned as undeliverable.

7.  Review the examination report to ensure that it is in complete compliance with the directives of this remand.  If the report is deficient in any manner, the AOJ must implement corrective procedures.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  

8.  After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated.  If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative.  After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

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 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).




______________________________________________
K. MILLIKAN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs