Citation Nr: 1713667	
Decision Date: 04/26/17    Archive Date: 05/04/17

DOCKET NO.  08-06 718A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in 
Phoenix, Arizona


THE ISSUES

1.  Entitlement to service connection for a low back disability.

2.  Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease of the right knee.

3.  Entitlement to an increased disability rating for left total knee replacement, for the period from March 11, 2008, through June 14, 2010 (excluding those periods when a temporary total rating is in effect).

4.  Entitlement to an increased disability rating for revision of left total knee replacement, for the period from June 15, 2010 (excluding those periods when a temporary total rating is in effect).

5.  Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

Mary C. Suffoletta, Counsel 


INTRODUCTION

The Veteran served for more than twenty-five years on active duty from June 1967 to May 1977, and from October 1980 to January 1997.

These matters initially came to the Board of Veterans' Appeals (Board) on appeal from a July 2007 decision of the RO that, in pertinent part, found new and material evidence to reopen, and then denied service connection a low back disability on the merits; granted service connection for degenerative joint disease of the right knee evaluated as 10 percent disabling effective August 31, 2006; and denied an increased rating for a service-connected left knee disability.  The Veteran timely appealed the denial of service connection and appealed for higher disability ratings.

In regard to addressing a previously denied claim for service connection, the Board is required to make its own determination on the question of reopening.  Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).

A review of the record reveals that the claim was originally denied in June 2004.  Within one year of the June 2004 rating decision, the Veteran submitted additional evidence in the form of service treatment records which were more complete than those already of record, and which were in fact new and material evidence referable to the claim for service connection for a low back disability.  Accordingly, the June 2004 rating decision did not become final with respect to the service connection claim.  See 38 C.F.R. § 3.156(b) (new and material evidence received prior to the expiration of the appeal period ... will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period). The issue before the Board, therefore, is one of entitlement to service connection, rather than whether new and material evidence has been received.

In November 2007, the Veteran and his wife testified during a hearing before RO personnel.  In 2008, jurisdiction of his appeal was transferred to the RO in Phoenix, Arizona.

In May 2011, the Veteran and his wife testified during a video conference hearing before the undersigned.  Following the hearing, the Veteran submitted additional evidence and waived initial consideration of the evidence by the RO. 

In the case of Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans' Claims (Court) held, in substance, that every claim for a higher evaluation includes a claim for TDIU where the Veteran claims that his service-connected disabilities prevent him from working.  In October 2011, the Board noted that the Veteran had put forth statements indicating that he believes his service-connected disabilities render him unemployable.  Accordingly, in light of the holding in Rice, the Board characterized the issues on appeal so as to include a claim for entitlement to TDIU.
 
In October 2011, the Board granted an increased rating for the Veteran's left knee disability for the period prior to March 11, 2008, and remanded for the period thereafter; and also remanded for further development the matters of a higher initial rating for degenerative joint disease of the right knee, entitlement to a TDIU, and service connection for lumbar spine disability.  

In July 2016, the RO increased the disability evaluation to 60 percent for left total knee replacement, effective October 11, 2012.  Because higher evaluations are available both before and after that date (excluding those periods when a temporary total rating is in effect), and the Veteran is presumed to seek the maximum available benefit for a disability, the claim remains on appeal.  See AB v. Brown, 6 Vet. App. 35, 38 (1993).

A supplemental statement of the case was issued in July 2016, and resent to the Veteran in September 2016.  The Board is satisfied there was substantial compliance with its remand orders for the claims decided below.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998).  

Consistent with the evidence of record, the Board has recharacterized the issues on appeal as shown on the title page of this decision. 

The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below, and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The evidence supports a link between current degenerative disc disease of the lumbar spine and the leg length discrepancy resulting from the left tibia fracture the Veteran sustained in service.

2.  Degenerative joint disease of the right knee has been manifested by complaints of pain, effusion in the joint, and frequent episodes of locking resulting in functional impairment.

3.  Instability of the right knee has been manifested by objective evidence equivalent of no more than slight knee impairment.

4.  For the period from March 11, 2008, through June 14, 2010, the Veteran's left total knee replacement was manifested by complaints of pain, and functional impairment with limited extension to 30 degrees due to pain; chronic severe painful motion or weakness have not been demonstrated.

5.  For the period from June 15, 2010, forward, the Veteran's revision of left total knee replacement has been manifested by chronic severe painful motion or weakness of the left lower extremity; thigh amputation of the left lower extremity is not demonstrated.


CONCLUSIONS OF LAW

1.  Degenerative disc disease of the lumbar spine is proximately due to or a result of a service-connected disease or injury.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2006).

2.  The criteria for an initial 20 percent, but no higher, evaluation for degenerative joint disease of the right knee are met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.40, 4.45, 4.59, 4.71, Table II, 4.71a, Diagnostic Code 5258 (2016).

3.  The criteria for an initial 10 percent, but no higher, evaluation for instability of the right knee are met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.40, 4.45, 4.59, 4.71, Table II, 4.71a, Diagnostic Code 5257 (2016).

4.  For the period from March 11, 2008, through June 14, 2010 (excluding those periods when a temporary total rating is in effect), the criteria for a 40 percent, but no higher, disability rating for left total knee replacement are met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5055, 5261 (2016).

5.  For the period from June 15, 2010 (excluding those periods when a temporary total rating is in effect), the criteria for a 60 percent, but no higher, disability rating for revision of left total knee replacement are met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016).  

VA's duty to notify was satisfied by October 2006 and September 2012 letters.  See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  Each of the Veteran's claims decided on appeal has been fully developed and re-adjudicated by an agency of original jurisdiction after notice was provided.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  

The Board concludes that VA's duty to assist has been satisfied.  All available records identified by the Veteran as relating to each of his claims have been obtained, to the extent possible. The RO or VA's Appeals Management Office (AMO) has obtained the Veteran's service treatment records and outpatient treatment records, and has arranged for VA examinations in connection with the claims decided on appeal, reports of which are of record and appear adequate.  The opinions expressed therein are predicated on a substantial review of the record and consideration of the Veteran's complaints and symptoms.  The Veteran has not identified, and the record does not otherwise indicate, any existing pertinent evidence that has not been obtained.

During the hearing the undersigned clarified the issues, explained the concepts of service connection and higher evaluations, and helped to identify any pertinent evidence that was outstanding that might substantiate the claims.  The case was thereafter remanded for additional development, including examinations.  The actions of the undersigned supplement VA's duties and comply with 38 C.F.R. § 3.103.

Given these facts, it appears that all available records have been obtained.  There is no further assistance that would be reasonably likely to assist the Veteran in substantiating the claims.  38 U.S.C.A. § 5103A(a)(2).

II.  Service Connection  

The Veteran seeks service connection for a low back disability which he believes had its onset in active service.

Service connection is awarded for disability that is the result of a disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131.

Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  38 C.F.R. § 3.303(b).  If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection.  Id. The Federal Circuit has held that section 3.303(b) applies only to those chronic conditions specifically listed in 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Notably, arthritis is considered chronic under section 3.309.

Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, and disorders noted at the time of examination, acceptance, and enrollment; or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2014).  Here, there is no initial enlistment examination of record, and the Veteran is presumed sound at entry.

The Board notes that the original record of the Veteran's retirement examination from active service is incomplete.  In this regard, it appears that no clinical evaluation was conducted; only laboratory findings, certain measurements, and other findings were noted.  The examination report also was undated and unsigned.  

The additional service treatment records submitted by the Veteran show that the Veteran complained of soreness in his lower back, which he believed was related to his left leg.  Clinical evaluation at the time of his retirement examination in December 1996 revealed an abnormal spine.  The examiner specifically noted sacral torsion secondary to left leg length discrepancy.  A summary of defects and diagnoses at the time included a positive finding of left leg shortness, secondary to left proximal tibia fracture, with positive findings of left sacral sidebending.

In this case, the Board finds that the evidence is against a finding that a low back disability was incurred in active service.  While soreness in his lower back was noted on one or two occasions in active service, the overall evidence weighs against a finding of a low back disability in active service.  Nor is there any showing of arthritis of the lumbar spine in active service or within the first post-service year.

The Veteran also seeks service connection for a low back disability which he believes is associated with his service-connected disabilities.

Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition.  38 C.F.R. § 3.310(a).

During the pendency of this appeal, there was an amendment to the provisions of 38 C.F.R. § 3.310.  See 71 Fed. Reg. 52744-47 (Sept. 7, 2006).  Although the overall intention of the amendment to 38 C.F.R. § 3.310(b) was to implement the Allen decision, the amended 38 C.F.R. § 3.310(b) clearly institutes additional evidentiary requirements and hurdles that must be satisfied before aggravation may be conceded and service connection granted.  Clearly, the new regulation is restrictive and the Board shall not give impermissibly retroactive effect to the new regulation in this case.  Since the Veteran's claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, which clearly favors the claimant.  See 38 C.F.R. § 3.310 (effective October 10, 2006).  

In March 2005, a private physician reviewed the Veteran's medical history and opined specifically that, "there is no question" that over the period of 20 years of walking with an antalgic gait that it can affect the lower back.  In support of the opinion, the physician reasoned that some of the Veteran's back problem was related to his leg length discrepancy; and degenerative changes of the knee were due to the injury sustained in 1984. The physician added that he was not a back surgeon, and he had not reviewed recent MRI scans of the Veteran's lumbar spine.

The report of an April 2005 VA examination reflects that the Veteran had suffered a compound fracture of the left tibia in active service, and that he underwent casting and physical therapy.  The fracture healed with two inches of shortening of the left leg, which was compensated for by a shoe lift.  Records show that, after his discharge from active service, the Veteran developed left knee pain and was diagnosed with arthritis in 2002; and that he underwent surgery in 2003.  The Veteran reported that his low back pain began spontaneously about five years ago, which he attributed to the limp caused by his left knee and leg pain.

Following examination, the April 2005 examiner diagnosed complaints of low back pain without neurological or mechanical deficit, having mild narrowing at the L5-S1 interspace; and opined that the present mild narrowing of the L5-S1 interspace is due to his advancing age, and would be as it is even after his active service from the fracturing of the left tibia and surgical replacement of the medial articulating surfaces of the left knee.  

MRI scans of the Veteran's lumbar spine conducted in 2008 revealed mild bilateral foraminal stenosis at L5-S1, no central stenosis at any level, and minimal bulges and degenerative disc disease at all levels.

In May 2011, the Veteran testified that he currently has bulging discs and several degenerative discs in his lower back; and indicated that the shortening of his left leg as a result of the in-service tibia fracture caused degeneration in his back.  He testified that a surgeon who performed an initial left partial knee replacement had submitted a medical statement, opining that the back problems were caused by the leg length difference. 

VA records, dated in June 2012, show that the Veteran needed a shoe insert or "lift" for his boots.  The VA physician opined that it was reasonably likely that the Veteran's chronic left knee arthralgia and leg length inequality with resulting altered gait contributed to lumbar degenerative changes and chronic low back pain.
 
Chiropractor records, dated in October 2012, show that the Veteran complained of low back pain with accompanied relatively constant paresthesias of both feet.  His medical history had revealed a multiple of left knee surgeries with a left total arthroplasty in 2008, and a short left leg as a result of all the trauma and surgery.  Examination of the lumbosacral spine in October 2012 revealed that all ranges of motion were limited and stiff and done with pain.  The chiropractor noted degenerative changes and associated neurogenic symptoms of the lumbar spine; and indicated that neither X-rays nor MRIs showed the dysfunction of movement caused by the fibrosis of repair of the Veteran's old injuries, although some could be implied because of where the degeneration was located in the spine and the severity of symptoms.  The chiropractor added that "a big factor" in the chronic pain pattern had to do with leg length inequality, which created a tilted platform for namely the whole pelvis.  With the pelvis tilted, asymmetric pressure was placed on the Veteran's lumbosacral vertebrae and soft tissues; and asymmetric loading led to dysfunction and instabilities. 

Following the Board's October 2011 remand, the Veteran underwent a VA examination in October 2012.  The examiner noted that the Veteran presently walked with a 2-inch lift in his left shoe and demonstrated no significant limping.  He complained of worsening low back pain with walking one-half hour.  Following examination, the diagnosis was degenerative disc disease of lumbar spine.

Based on examination and the Veteran's medical history, the October 2012 examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.  In support of the opinion, the October 2012 examiner reasoned that a leg length discrepancy was noted in 1988 with obvious pelvic tilt; and the Veteran at the time complained of back pain of three weeks duration after exercising and sleeping on a hard surface.  Subsequent records reveal no subjective complaints of low back pain until December 1996, when the Veteran reported recurrent back pain.  There were no further complaints until 2002, when the Veteran lifted a heavy metal box and concerns were raised of a possible herniated nucleus pulposus with sciatica.  MRI scans of the lumbar spine, first conducted in 2004, revealed broad based disc bulges.

In this regard, the October 2012 examiner concluded that the Veteran's current back disability-including bulging discs with radiculopathy-was not due to a perceived altered gait pattern, but to a post-service incident of lifting heavy boxes for which the Veteran sought medical care.  The October 2012 examiner added that a non-antalgic gait was previously documented prior to the post-service incident, and no evidence of chronic pain had been documented from December 1996 until 2002.

In a July 2016 addendum, the same VA examiner opined that the Veteran's current low back disability was not at least as likely as not aggravated beyond its natural progression by the service-connected left knee disability.  In support of the opinion, the VA examiner noted the Veteran's complex medical history; and indicated that the Veteran's knees were not found to worsen his back injury and result in multiple bulging discs with degenerative disc disease.  In this regard, the VA examiner noted that the degenerative disc disease originally was seen as mild; and had progressed to mild/moderate from a natural progression-i.e., irrespective of the knees.  The VA examiner added that neither the leg length discrepancy nor his knees would create or aggravate lumbar bulging discs with sciatica evolving into a herniated disc.  Nor was there medical evidence of any nexus causing a herniated disc.

When assessing the probative value of a medical opinion, the thoroughness and detail of the opinion must be considered.  The opinion is considered probative if it is definitive and supported by detailed rationale.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  A medical opinion that contains only data and conclusions is not entitled to any weight.  "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion."  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

The Board notes that, in this case, there are conflicting medical opinions.  The Board finds the private physician's opinion in March 2005 that an antalgic gait over a long period of time can affect the lower back, as persuasive.  The private physician's opinion is fully articulated and contains sound reasoning, and is supported by the evidence of record.  Notably, the Veteran had reported a history of chronic low back pain both in active service and following active service. 

Moreover, the Board finds that there is credible evidence that the Veteran experienced symptoms of low back pain in active service.  The available medical evidence demonstrates a gap of a few years in time from when the Veteran separated from service in 1997 and when he first sought treatment for low back pain in 2002.  In Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006), the Federal Circuit Court indicated that, where lay evidence provided is competent and credible, the absence of contemporaneous medical documentation during service or since, such as in treatment records, does not preclude further evaluation as to the etiology of the claimed disorder.  While bulging discs and degenerative disc disease of the lumbosacral spine were not diagnosed until many years later, a plausible nexus to active service or to service-connected disease or injury cannot be excluded.  Hence, the Board finds the March 2005 opinion is probative.

In this case, the Board finds that the evidence is in favor of finding that degenerative disc disease the lumbar spine is related (causation) to a service-connected disease or injury. The Board acknowledges the January 2016 VA addendum opinion, in which the examiner reasoned that neither the leg length discrepancy nor his knees would create or aggravate lumbar bulging discs with sciatica evolving into a herniated disc.  The Board finds this opinion to be less persuasive than the Veteran's lay statements.  In particular, the examiner had recognized the leg length discrepancy with obvious pelvic tilt in 1988, but then relied on the lack of documented treatment in the years immediately following active service and a post-service injury to find against the relationship.  This is an inadequate reason for a negative finding.  See Buchanan, 451 F.3d at 1337 (holding that the Board cannot determine that lay evidence as to diagnosis and nexus lacks credibility merely because it is unaccompanied by contemporaneous medical evidence); see also, Hensley v. Brown, 5 Vet. App. 155 (1993).
  
In contrast to the VA opinion, there are the supporting opinions of the private physician noted above and the chiropractor's records and the Veteran's contentions, which have been consistent throughout the appeal.  Particularly, the Veteran testified that a surgeon also attributed the Veteran's back problems to the leg length discrepancy.  The Board finds that the Veteran is credible in this regard.  The treatment records indicate a longstanding history of symptomatology.  His statements are consistent with the circumstances of his service in the U.S. Coast Guard, and are not expressly contradicted by the record.

When considering the service treatment records, the competent and credible lay statements, the post-service medical evidence substantiating the Veteran's claim, as well as the private physician's favorable opinion; and resolving all reasonable doubt in his favor, the Board finds that degenerative disc disease of the lumbar spine is related (causation) to a service-connected disease or injury.  See 38 C.F.R. § 3.310(a).  

III.  Higher Evaluations

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances.  38 C.F.R. § 4.21 (2016).

After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 4.3 (2016).

The Veteran's entire history is reviewed when making disability evaluations.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1.  Where the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required.  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  When a disability has undergone varying and distinct levels of severity during the appeal, it is appropriate to apply staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, and 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability.  If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain.  DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2016).  Moreover, joint testing is to be conducted on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  Correia v. McDonald, 28 Vet. App. 158, 170 (2016).

Diagnostic Code 5010 directs that arthritis due to trauma be rated as degenerative arthritis under 38 C.F.R. § 4.71a, Diagnostic Code 5003.  Under that code, 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 for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  38 C.F.R. § 4.71a, Diagnostic Code 5003.

A 10 percent evaluation will be assigned where there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups.  A 20 percent evaluation will be assigned where 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.  The 10 and 20 percent evaluations based on X-ray evidence may not be combined with ratings based on limitation of motion.  38 C.F.R. § 4.71a, Diagnostic Code 5003.  

Additionally, the anti-pyramiding provision of 38 C.F.R. § 4.14 directs that the evaluation of the 'same disability' or, more appropriately in this case, the 'same manifestation' under various diagnoses is to be avoided.  Indeed, in Esteban v. Brown, 6 Vet. App. 259 (1994), the Court held that, for purposes of determining whether a Veteran is entitled to separate ratings for different problems or residuals of an injury, without violating the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of, or overlapping with the symptomatology of the other conditions.

The Board will consider not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes.

Here, the Veteran is competent to testify on factual matters of which he has first-hand knowledge.  Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  He is also competent to report symptoms of knee pain.  Layno v. Brown, 6 Vet. App. 465, 469-71 (1994).  He is competent to describe his symptoms and their effects on employment and daily activities.

A. Disabilities of the Right Knee

Service connection has been established for degenerative joint disease of the right knee.  The RO evaluated the Veteran's disability as initial 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5257, pertaining to instability.  In May 2010, a Decision Review Officer changed or modified the diagnostic code to Diagnostic Code 5260-5010, pertaining to limited flexion.  While a hyphenated diagnostic code generally reflects rating by analogy (see 38 C.F.R. §§ 4.20 and 4.27), here, the RO has considered both diagnostic codes, alternatively.

Rating Criteria for Knees 

First, Diagnostic Code 5256 rates based on the presence of ankylosis, or immobility of the joint.  As the Veteran has movement in the left knee joint, this code is inapplicable.  

Pursuant to Diagnostic Code 5260, when flexion of the leg is limited to 60 degrees, a noncompensable rating is warranted.  When flexion is limited to 45 degrees, a 10 percent rating is warranted.  Flexion limited to 30 degrees warrants a 20 percent rating, while flexion limited to 15 degrees warrants the maximum 30 percent rating.  

Diagnostic Code 5261 rates based on limitation of extension.  That code provides that when extension is limited to 5 degrees, a noncompensable rating is assigned.  Extension limited to 10 degrees warrants a 10 percent rating.  When limitation of extension is at 15 degrees, a 20 percent rating is warranted.  Extension limited to 20 degrees warrants a 30 percent rating.  Extension limited to 30 degrees warrants a 40 percent rating.  Lastly, extension limited to 45 degrees warrants the maximum, 50 percent rating.

VA General Counsel has held that separate evaluations under Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint.  VAOGCPREC 9-2004, 69 Fed. Reg. 59990 (September 17, 2004).  

VA General Counsel has held that a Veteran who has both arthritis and instability of a knee may be granted separate evaluations under Diagnostic Codes 5003 and 5257, respectively, without violating the rule against pyramiding in 38 C.F.R. § 4.14.  However, any such separate rating must be based on additional disabling symptomatology.  Additionally, under 38 C.F.R. § 4.59 (2016), it is the intention of the rating schedule to recognize actually painful joints as entitled to at least the minimum compensable rating for the joint.  This applies even if arthritis is not shown.  See Burton v. Shinseki, 25 Vet. App. 1 (2011).

The diagnostic criteria applicable to recurrent subluxation or lateral instability is found at 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2016).   Under that code, slight impairment is assigned a 10 percent rating, moderate impairment a 20 percent rating, and severe impairment a 30 percent rating.  

The terms "mild," "moderate," and "severe" are not defined in the 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.  It should also be noted that use of terminology such as "mild" or "moderate" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6. 

The diagnostic criteria applicable to semilunar cartilage are found at 38 C.F.R. § 4.71a, Diagnostic Code 5258 (2016).   Under that code, a maximum 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint.  

Symptoms due to the removal of the semilunar cartilage of either knee warrant a 10 percent rating, which is the maximum rating under the diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code 5259.

Significantly, VA General Counsel has also held that a rating under Diagnostic Code 5259, cartilage, semilunar, removal (see also Diagnostic Code 5258, dislocated semilunar cartilage) already contemplates limitation of motion, such that separate ratings for limitation of motion (e.g., Diagnostic Codes 5003, 5260, or 5261) would violate the regulatory prohibition against pyramiding under 38 C.F.R. § 4.14.  See VAOPGCPREC 9-98 (August 14, 1998).  

The diagnostic criteria applicable to impairment of the tibia and fibula are found at 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2016).  Under that code, a 10 percent evaluation is warranted when malunion of the tibia and fibula is productive of slight knee or ankle disability.  A 20 percent evaluation is warranted when malunion of the tibia and fibula is productive of moderate knee or ankle disability, and a 30 percent evaluation is warranted when such disability is marked.  A 40 percent evaluation is warranted for nonunion of the tibia and fibula, with loose motion, requiring a brace.  38 C.F.R. § 4.71a, Diagnostic Code 5262. 
 
Finally, the diagnostic criteria applicable to knee replacement (prosthesis) are found at 38 C.F.R. § 4.71a, Diagnostic Code 5055 (2016). Under that code, prosthetic replacement of a knee joint is rated 100 percent for one year following implantation of the prosthesis. (The one-year total rating commences after a one-month convalescent rating under 38 C.F.R. § 4.30.)  Thereafter, chronic residuals consisting of severe painful motion or weakness in the affected extremity warrant a 60 percent rating.  Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to Diagnostic Codes 5256, 5260, 5261, or 5262. The minimum rating following replacement of a knee joint is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5055.

Factual Background

VA records show complaints of right knee joint pain in the patellofemoral region in May 2006, which was worse with weight-bearing; and indicate that the knee would catch during movement on the right. On examination, the Veteran was able to tip-toe and heel walk without any difficulty.  Previous X-rays taken in January 2006 had revealed changes of mild osteoarthritis of the right knee.  Current assessment was right knee pain of five months duration with worsening symptoms.  Medications were prescribed.  

During a May 2007 VA examination, the Veteran reported no history of injury to the right knee; and that his right knee had given him problems from undue pressure due to left knee impairment.  The Veteran described pain at rest as a Level 6 to 7, on a scale of 10.  His knee felt weak and stiff, and occasionally swelled; it did not get hot or red.  The right knee gave way at times, locked at times, and had fatigability.  Flare-ups of right knee pain occurred every two days, and lasted up to one hour and then receded.  Causes for the flare-ups were overuse, pivoting, prolonged standing, or walking; and impact on his life was major.  The Veteran could not stand up for more than five minutes in one place at attention before his knee gave him increased pain.  Walking was limited to approximately 30 yards, at which time the Veteran needed to stop to rest and sit down.  He was unable to run.

On examination in May 2007, the Veteran was able to extend the right knee fully.  There was no joint effusion present.  Flexion of the right knee was to 124 degrees, with increased pain from 110 degrees.  There was tenderness in the medial joint margin over the medial meniscus area; and the medial collateral ligament was slightly lax, which would be a normal event from walking with a shortened left leg and always putting strain and stress on that ligament.  Lachman's test was negative.  McMurray's test was positive.  Repetitive movement of the right knee caused no change in the loss of motion, which was already limited.  Right knee function was additionally limited by pain following repetitive use.      

MRI scans conducted of the right knee in June 2007 revealed significant degenerative joint disease and evidence of medial meniscus damage.  There was some change in the anterior cruciate ligament but no disruption of the ligament.

The report of a May 2010 VA examination reflects fluctuating pain with intensity varying worse from one knee to the other with constant pain bilaterally.  Current right knee joint symptoms included giving way, instability, pain, stiffness, and weakness.  There were also weekly episodes of dislocation or subluxation, weekly locking episodes, and repeated effusions, as well as symptoms of inflammation to include warmth and swelling and tenderness.  These symptoms affected motion of the right knee joint.  The Veteran reportedly was unable to stand for more than a few minutes, and he was unable to walk for more than a few yards.  He used a cane intermittently, but frequently.  

Examination in May 2010 revealed that the Veteran's gait was antalgic, with poor propulsion.  There were findings of crepitus, tenderness, pain at rest, and weakness.  A scar on the right patellar was C-shaped and measured 3.5 centimeters by 1 centimeter wide.  Ranges of motion of the right knee were to 122 degrees on flexion, with pain from 80 degrees; and to 0 degrees on extension, with pain from 40 (minus) degrees.  X-rays revealed mild narrowing of patellofemoral and medial joint space.  

VA records show that the Veteran underwent an injection in his right knee in May 2010.  He was fitted for a knee brace, and underwent another injection in January 2011.

MRI scans conducted of the right knee in January 2011 revealed chondromalacia patella, mild degenerative changes, and possible incomplete radial tear of medial meniscus.

In May 2011, the Veteran testified that the right knee was put in a brace at the time of the left total knee replacement; and that he now permanently wore the brace and received injections in his right knee every six months, and will eventually have the knee replaced.  The Veteran also testified that he had difficulty going up stairs and eventually used a cane.

During an October 2012 VA examination, the Veteran reported constant right knee pain; and reported that the right knee popped, gave way, and lacked adequate flexion.  He also reported flare-ups.

On examination, ranges of motion of the right knee were to 80 degrees on flexion, with pain from 5 degrees; and to 10 degrees on extension.  Pain was noted at the extreme of extension.  There was no additional limitation in ranges of motion of the right knee following repetitive-use testing.  The right knee locked during attempted extension, with audible pop during active motion.  Contributing factors of functional loss included less movement than normal, weakened movement, pain on movement, disturbance of locomotion, and interference with sitting and standing and weightbearing.  The examiner also noted tenderness or pain to palpation for joint line or soft tissues.  Muscle strength testing was 4/5, described as active movement against some resistance.  The examiner was unable to test joint stability, due to guarding; and noted the leg length discrepancy.  The examiner also noted a meniscal tear, and frequent episodes of locking and joint pain.  The examiner also indicated that the scar on the right knee was neither painful nor unstable, and measured less than 39 square centimeters (6 square inches).  The Veteran constantly used a brace and cane due to balance irregularities from an altered gait with leg length discrepancy.

Limited Motion

As previously noted, arthritis due to trauma be rated as degenerative arthritis.  38 C.F.R. § 4.71a, Diagnostic Code 5010.  

In this case, the RO assigned a 10 percent disability evaluation based on degenerative joint disease and limited motion under Diagnostic Code 5260, pertaining to limitation of flexion. 

Separate evaluations may be assigned for compensable limitation of flexion or extension.

Here, throughout the rating period, the evidence reveals that the Veteran was able to achieve predominantly 80 degrees of right knee flexion.  The evidence reveals that the Veteran has "painful motion" of the right knee, which warrants at least a minimum compensable rating for the right knee joint pursuant to provisions of 38 C.F.R. § 4.59.  In this regard, the VA examiners appropriately evaluated range of motion, pain, additional limitation of motion and functional loss upon repetitive testing, limitation on standing and walking, and instability where feasible.  Here, the Veteran has a bilateral knee disability; neither knee is considered undamaged for comparison purposes.  See Correia, 28 Vet. App. at 170.

For an even higher evaluation, pursuant to Diagnostic Code 5260, flexion must be functionally limited to 30 degrees or less.  See 38 C.F.R. § 4.7.  Functional loss has been noted by examiners in terms of the Veteran's difficulties walking, standing, and climbing stairs as a result of pain and weakness in the right knee joint.  Examiners also noted increased pain following repetitive movement.  In this regard, none of the lay or medical evidence suggests that flexion is functionally less than 45 degrees at any time, due to the DeLuca factors.  All range of motion testing reflects that the Veteran retains flexion far better than 45 degrees.  Hence, analysis under Diagnostic Code 5260 provides no more than the currently assigned 10 percent disability rating.   Stated differently, despite all of the subjective complaints, his remaining functional flexion is better than 30 degrees.

Alternatively, Diagnostic Code 5258 provides a maximum 20 percent disability rating for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint, which, as applied in this case, is the greater benefit for assigning a separate rating for limitation of motion of the Veteran's right knee joint.  Here, examination reports in May 2010 and in October 2012 document weekly locking episodes, repeated effusions, and meniscal tear-so as to warrant analysis as dislocated semilunar cartilage.  Specifically, limitation of motion is contemplated through functional impairment with use-namely, pain and locking.  Here, given the findings of worsening symptoms in 2006, evidence of medial meniscus damage in 2007, repeated effusions in the joint in 2010, and the Veteran's complaints of locking throughout the rating period, the Board finds that the Veteran's right knee disability is best evaluated separately as 20 percent disabling under Diagnostic Code 5258.  The criteria are met throughout the rating period.

In order to afford the Veteran this greater benefit, the assignment of a separate rating for painful and limited flexion under Diagnostic Code 5260 would amount to pyramiding and is strictly prohibited.  

Lastly, referable to Diagnostic Code 5261, the extension of the right knee was normal at 0 degrees upon examinations in May 2007 and in May 2010; and no further decrease in extension on repetitive use was demonstrated, although pain was noted.  As of the October 2012 VA examination, the Veteran's extension of the right knee was limited by pain to 10 degrees.  Even with consideration of pain and other Deluca factors, there is no showing of limitation of extension of the right knee to 20 degrees or more at any time, to warrant a disability rating in excess of 20 percent based on limited motion. 

As noted above, the maximum 20 percent disability rating under Diagnostic Code 5258 takes into consideration limitation of motion; hence, a compensable rating under Diagnostic Code 5261 would amount to pyramiding and is strictly prohibited.  

There is no evidence of malunion or non-union of the tibia and fibula to warrant evaluation under Diagnostic Code 5262.  The remaining codes for knee disabilities are not applicable.

The preponderance of the evidence, therefore, supports the assignment of one separate 20 percent initial disability rating under Diagnostic Code 5258 throughout the rating period, based on findings of frequent episodes of locking, pain, and effusion into the right knee joint resulting in functional impairment.


Instability or Subluxation

In this case, throughout the rating period, there has been objective evidence of slight laxity of the medial collateral ligament.  The May 2007 examiner explained that this was expected from walking with a shortened left leg and always putting strain on the ligament.  The Board notes that the October 2012 examiner was unable to test joint stability due to guarding, and also noted the leg length discrepancy.  Here, given the Veteran's lay reports of giving way, his using a brace and cane due to balance irregularities, and findings of slight laxity of the medial collateral ligament throughout the rating period, the Board finds that the criteria for a separate 10 percent disability rating under Diagnostic Code 5257 are met.  

The objective evidence does not demonstrate moderate or severe instability at any time.  The Board has considered the Veteran's lay reports of weekly dislocation or subluxation; however, in determining whether a higher disability rating is warranted under Diagnostic Code 5257, the Board places the most probative weight on the results of objective physical examination by health care specialists, which failed to show any evidence of recurrent subluxation or patellar dislocation.  The evidence reveals a history of no more than slight lateral instability.  Here, the Board finds the medical evidence, prepared by skilled professionals, is far more probative and more credible than the lay evidence.

The preponderance of the evidence, therefore, supports a separate 10 percent, but no higher, disability rating throughout the rating period based on findings equivalent to slight knee impairment under Diagnostic Code 5257.

The remaining codes for knee disabilities are not applicable.

Scars

No examiner has found that the surgical scars on either knee were tender or painful, or caused any functional impairment to warrant a separate, compensable disability rating on the basis of scars under 38 C.F.R. § 4.118, Diagnostic Codes 7804 or 7805.  

B.  Left Knee Disability

Service connection has been established for a left knee disability, effective July 2003.  Records show that the Veteran underwent a left partial knee replacement in March 2004, and underwent a left total knee replacement in March 2008.  He later underwent a revision of the left total knee replacement in June 2010.  The RO assigned a 100 percent evaluation for the left partial knee replacement, effective March 2004; and then decreased the rating to 20 percent, effective May 2004.  Subsequently, a 30 percent rating was awarded from July 2006 to March 2008.

Pertinent to this appeal, the RO then assigned a 100 percent evaluation for the left total knee replacement, effective March 11, 2008; and then decreased the rating to 30 percent, effective May 1, 2009.  Effective June 15, 2010, the RO increased the evaluation to 100 percent, under the provisions of 38 C.F.R. § 4.30 based on surgery and convalescence for this condition, and then resumed the evaluation of 30 percent, effective August 1, 2011.  This appeal followed for an increased disability rating for the period of time from May 1, 2009, to June 14, 2010, when a 100 percent disability rating was no longer in effect between the left total knee replacement and the its revision; and for the period of time from August 1, 2011, to the present date.
  
As noted above, pursuant to Diagnostic Code 5055, prosthetic replacement of a knee joint is rated 100 percent for one year following implantation of the prosthesis.  (The one-year total rating commences after a one-month convalescent rating under 38 C.F.R. § 4.30). Thereafter, chronic residuals consisting of severe painful motion or weakness in the affected extremity warrant a 60 percent rating.  Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to Diagnostic Codes 5256, 5260, 5261, or 5262.  The minimum rating following replacement of a knee joint is 30 percent.  38 C.F.R. § 4.71a, Diagnostic Code 5055.  

For the Rating Period from March 11, 2008, through June 14, 2010 (excluding those periods when a temporary total rating is in effect)

The Veteran underwent a VA examination in May 2010. A summary of left knee joint symptoms includes deformity, instability, pain, stiffness, weakness, decreased speed of joint motion, numbness in knee, locking episodes, symptoms of inflammation, and severe flare-ups.  The Veteran reportedly limited weight-bearing and ranges of motion secondary to pain during flare-ups.

Examination in May 2010 revealed that the Veteran's gait was antalgic with poor propulsion.  There was increased wear on the outside edge of his left shoe heel.  The examiner noted crepitus, deformity, edema, tenderness, pain at rest, and weakness.  The examiner also noted the meniscus abnormality, and that McMurray's test was positive.  Regarding the left joint prosthesis, mild weakness was noted.  Ranges of motion of the left knee were to 110 degrees on flexion, and to 0 degrees on extension.  Pain was noted with active motion, and following repetitive motion.  Left knee flexion was limited to 105 degrees after repetitive motion, with pain from 75 degrees; and pain was noted on extension from 30 (minus) degrees.  X-rays taken in May 2010 revealed no evidence of loosening of the prosthesis.  In addition to the underlying leg length discrepancy, the May 2010 examiner noted left thigh atrophy.

In this case, there is no evidence of ankylosis or of nonunion of the tibia and fibula to warrant a disability rating in excess of 30 percent under Diagnostic Codes 5256 or 5262.  Hence, each of those diagnostic codes is inapplicable.

The maximum rating for limited flexion of the knee does not exceed 30 percent.  Hence, Diagnostic Code 5260 is inapplicable.

Here, during the applicable period, the evidence reflects that the Veteran has painful motion on extension of the left knee from 30 degrees.  Given the Veteran's complaints of pain, the May 2010 examiner's findings of pain at rest and weakness, and with consideration of the DeLuca factors, the Board finds that a 40 percent disability rating is warranted under Diagnostic Code 5055-5261 based on functional impairment with limited extension of the left knee to 30 degrees or more.  There is no indication that the Veteran has ever had extension of the left knee limited to 45 degrees or more to warrant a disability rating in excess of 40 percent under Diagnostic Code 5055-5261. 

While the Board recognizes that there might have been exacerbations of pain and weakness prior to the June 2010 revision surgery, such exacerbations do not justify a higher rating.  "Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability."  38 C.F.R. § 4.1.  The months preceding the surgery were just such a time period, but the Veteran's general level of disability due solely to his left total knee replacement had been much less severe.  In essence, no examiner had described the Veteran's residuals as severe.

For the foregoing reasons, the Board grants a 40 percent, but no higher, disability evaluation for the Veteran's left total knee replacement, from March 11, 2008, through June 14, 2010 (excluding those periods when a temporary total rating is in effect), pursuant to Diagnostic Code 5055-5061.

For the Rating Period from June 15, 2010 (excluding those periods when a temporary total rating is in effect)

Records show that the Veteran underwent a revision of the left total knee replacement on June 15, 2010.

The report of an October 11, 2012 VA examination reflects generalized left knee pain, which was constant.  The Veteran reported that the left knee was worse with weather changes and occurred seasonally, during which time there was less weightbearing due to pain.  Ranges of motion of the left knee were to 70 degrees on flexion, with pain from 5 degrees; and to 20 degrees on extension, with pain at the extreme of extension.  There was no additional limitation of motion following repetitive testing.  Contributing factors of disability included less movement than normal, weakened movement, pain on movement, swelling, deformity, disturbance of locomotion, and interference with sitting and standing and weightbearing.  The examiner noted tenderness or pain to palpation for left knee joint line or soft tissues. Muscle strength testing was 4/5.  The examiner was unable to perform joint stability testing due to guarding, and noted the leg length discrepancy.

The October 2012 examiner noted the dates of the left total knee replacement and its revision, and found that the Veteran has chronic residuals consisting of severe painful motion or weakness.  Additional findings included posterior thigh vascular calcification; however, no fracture or effusion was demonstrated.  

Here, during the applicable period, the evidence shows chronic severe painful motion, or weakness in the left lower extremity.  Objective manifestations of pain and swelling (see 38 C.F.R. §§ 4.40, 4.45, 4.59) are demonstrated.  While the RO had increased the disability evaluation to 60 percent for revision of left total knee replacement effective from the date of examination in October 2012, the Board finds that the criteria for a 60 percent evaluation are met throughout the rating period from June 15, 2010 (excluding those periods when a temporary total rating is in effect), to the present date.  

Essentially, following the revision of the Veteran's left total knee replacement in June 2010, the evidence reflects at least an intermittent degree of painful motion or weakness of the left lower extremity, so as to warrant a 60 percent disability rating.  See 38 C.F.R. § 4.71a, Diagnostic Code 5055.  There are additional limitations of degrees in both flexion and extension.  Such findings have been corroborated by the October 2012 examiner, and described as severe chronic residuals.  Pain on motion was objectively confirmed on VA examination.  Thus, resolving all doubt in favor of the Veteran, a 60 percent rating is allowed for revision of left total knee replacement, for the period from June 15, 2010 (excluding those periods when a temporary total rating is in effect).

There is no evidence showing that more than a 60 percent disability rating is warranted for revision of left total knee replacement during the applicable period.  Thigh amputation of the left lower extremity is not shown.  

The Board notes that the current 60 percent rating is the maximum allowed for chronic residuals of severe painful motion or weakness under Diagnostic Code 5055.  Here, there is no clinical evidence of loosening or instability of the prosthetic joint of the left knee, following the June 2010 revision of left total knee replacement, to warrant an increased rating under any other code.

Lastly, assigning a separate rating under Diagnostic Code 5275, pertaining to shortening of the bones of a lower extremity, should be avoided as it would constitute pyramiding-i.e., functional impairment resulting from the leg length discrepancy, which already has been considered as chronic residuals of the left total knee replacement. 

For the foregoing reasons, the Board grants a 60 percent, but no higher, disability evaluation for the Veteran's revision of left total knee replacement, from June 15, 2010, forward (excluding those periods when a temporary total rating is in effect).  See 38 C.F.R. § 4.71a, Diagnostic Code 5055.

C.  Extraschedular Consideration

Finally, the potential application of 38 C.F.R. § 3.321(b)(1) has also been considered.  See Thun v. Peake, 22 Vet. App. 111 (2008); Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991).  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 the service-connected disabilities are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disabilities with the established criteria found in the rating schedule for each disability.  Thun v. Peake, 22 Vet. App. 111 (2008). 

If the criteria reasonably describe the Veteran's disability level and symptoms, then the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluations are, therefore, adequate, and no referral is required.  In the second step of the inquiry, however, if the schedular evaluations do not contemplate the Veteran's level of disability and symptomatology and are found inadequate, VA must determine whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has 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 for completion of the third step-i.e., a determination of whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. Id.  

Here, the symptomatology and impairment caused by the Veteran's service-connected disabilities are specifically contemplated by the rating criteria.  Specifically, he has functional impairment due to bilateral knee pain.  In this case, as shown above, any functional impairment is contemplated in the applicable rating criteria.  There are no other ratable symptoms stemming from the disabilities.  Thus, the Board finds that the rating criteria adequately cover his symptoms.

In the absence of exceptional factors associated with the disabilities (i.e., no frequent hospitalizations, no interference with work), the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met.  As such, referral for consideration for an extraschedular evaluation is not warranted.  See 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008); Bagwell v. Brown, 8 Vet. App. 337, 339 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). 

Finally, a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced.  Johnson v. McDonald, 762 F.3d 1362 (2014).  In this case, the Veteran has not alleged that his currently service-connected disabilities combine to result in additional disability or symptomatology that is not already contemplated by the rating criteria for each individual disability.

Further, there is no medical evidence indicating that the Veteran's service-connected disabilities combine or interact in such a way as to result in further disabilities, functional impairment, or additional symptomatology not accounted for by the rating criteria applicable to each disability individually.  Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions.


ORDER

Service connection for degenerative disc disease of the lumbar spine is granted.

An initial 20 percent disability rating for degenerative joint disease of the right knee is allowed, subject to the regulations governing the award of monetary benefits.

A separate 10 percent disability rating for instability of the right knee is allowed, subject to the regulations governing the award of monetary benefits.

For the period from March 11, 2008, through June 14, 2010, a 40 percent, but no higher, disability rating for left total knee replacement is allowed (excluding those periods when a temporary total rating is in effect), subject to the regulations governing the award of monetary benefits.

For the period from June 15, 2010, a 60 percent, but no higher, disability rating for revision of left total knee replacement is allowed (excluding those periods when a temporary total rating is in effect), subject to the regulations governing the award of monetary benefits.


REMAND

As noted above, a claim for TDIU is considered part and parcel of an increased rating claim, when such a claim is raised by the record.  Rice, 22 Vet. App. at 453-454.  On August 31, 2006, the Veteran filed a claim for higher disability ratings.  In May 2011, the Veteran testified that he was unable to work due to his service-connected knee disabilities.  Here, the date applicable to the Veteran's inferred claim for TDIU benefits is, in essence, the date VA received his claim for higher disability ratings-i.e., August 31, 2006.

Moreover, as the Board has granted service connection for degenerative disc disease of the lumbar spine which has yet to be rated; and has awarded higher ratings for disabilities of the right knee as well as for the left knee which will change the combined rating, the TDIU issue is inextricably intertwined and must be deferred on remand for re-adjudication.

Lastly, the Court held that a TDIU rating could serve as the "total" service-connected disability, if TDIU entitlement was solely predicated upon a single disability for the purpose of considering entitlement to special monthly compensation as provided in § 1114(s).  Accordingly, the Veteran may be entitled to special monthly compensation as provided in § 1114(s), if he is found to be unemployable due solely to one of his service-connected disabilities and there is additional service-connected disability or disabilities that are independently ratable at 60 percent, which are separate and distinct from the 100 percent service-connected disability and involve different anatomical segments or bodily systems.  See Bradley v. Peake, 22 Vet. App. 280, 292-94 (2008).

Accordingly, the case is REMANDED for the following action:

1.  Provide the Veteran with appropriate notice of VA's duties to notify and to assist with regard to substantiating a claim for entitlement to SMC, pursuant to 38 U.S.C.A. § 1114(s).

2. Obtain the Veteran's outstanding VA treatment records, from August 2016 forward; and associate them with the Veteran's claims file.

3.  After ensuring that the requested actions are completed, re-adjudicate the claim on appeal-to include consideration of whether the Veteran may be entitled to SMC as provided in § 1114(s).  If the benefit sought is not fully granted, furnish a supplemental statement of the case (SSOC) and then return the appeal to the Board, if otherwise in order.

No action is required of the Veteran and his representative until they are notified by the RO or VA's Appeals Management Office (AMO).

The Veteran 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).




______________________________________________
H. N. SCHWARTZ
 Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs