Citation Nr: 1808745 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 11-27 819 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent prior to June 5, 2016 and in excess of 70 percent from that date for Legg-Perthe's disease with degenerative arthritis and right hip replacement. 2. Entitlement to an initial evaluation in excess of 10 percent prior to July 24, 2014 for left knee osteoarthritis with chondromalacia, sprain, and medial meniscus tear. 3. Entitlement to an initial evaluation in excess of 60 percent for a total left knee replacement. 4. Entitlement to an initial evaluation in excess of 10 percent for sensory deficit over the L4 and L5 dermatome of the left lower extremity. 5. Entitlement to an initial evaluation in excess of 40 percent for right lower extremity radiculopathy. 6. Entitlement to an effective date earlier than February 11, 2015, for the grant of service connection for right lower extremity radiculopathy. 7. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) prior to July 29, 2013. REPRESENTATION Appellant represented by: Attorney George Sink ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active service from January 1981 to November 1987. This matter comes before the Board of Veterans' Appeals (Board) from January 2009, May 2009, and July 2016 rating decisions of Department of Veterans Affairs (VA) Regional Offices (ROs). A September 2011 rating decision assigned a temporary 100 percent evaluation due to surgical or other treatment necessitating convalescence for Legg-Perthe's disease with degenerative arthritis and right hip replacement from May 17, 2011. The prior 30 percent evaluation was continued from July 1, 2012. A December 2014 rating decision assigned a temporary 100 evaluation for a total left knee replacement effective July 24, 2014. A 30 percent evaluation was assigned from August 1, 2015. A January 2015 rating decision extended the temporary 100 percent evaluation for the left knee through August 31, 2015. A July 2016 rating decision increased the evaluations for Legg-Perthe's disease with degenerative arthritis and right hip replacement to 70 percent, effective June 5, 2016, and for a total left knee replacement to 60 percent, effective September 1, 2015. A September 2017 rating decision increased the evaluation for right lower extremity radiculopathy to 40 percent. Since a higher evaluation is available, this is not a total grant of the benefits sought on appeal. In addition, an earlier effective date of July 29, 2013, was assigned for the grant of a TDIU. The September 2017 rating decision states that the earlier effective date for the grant of a TDIU was a total grant of the benefits on appeal for that issue. However, the claim for a TDIU predates July 29, 2013. As the increases discussed above did not represent a total grant of the benefits sought on appeal, the claims for increased evaluations and an earlier effective date for a TDIU remain before the Board. AB v. Brown, 6 Vet. App. 35 (1993). In October 2017, the Veteran's representative withdrew the Veteran's request for a hearing before the Board. The issues of entitlement to an increased evaluation for right lower extremity radiculopathy and to an earlier effective date for the grant of service connection for right lower extremity radiculopathy 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 May 17, 2011, the Veteran's Legg-Perthe's Disease was characterized by marked right hip disability with pain, fatigue, and lack of endurance, that significantly limited functional ability with repeated use over time. 2. From July 1, 2012, the Veteran's Legg-Perthe's disease with degenerative arthritis and right hip replacement has been characterized by markedly severe residual weakness, pain, and limitation of motion. 3. Prior to July 24, 2014, the Veteran's left knee osteoarthritis with chondromalacia, sprain, and medial meniscus tear, was characterized by flexion to 90 degrees, extension to 15 degrees, and pain. 4. The Veteran's total left knee replacement is characterized by severe painful motion. 5. Prior to June 5, 2016, the Veteran's sensory deficit over the L4 and L5 dermatome of the left lower extremity was of mild severity. 6. From June 5, 2016, the Veteran's sensory deficit over the L4 and L5 dermatome of the left lower extremity has been of moderately severe severity. 7. Prior to July 29, 2013, the Veteran met the schedular rating criteria for consideration of a TDIU, and the functional impairment from the Veteran's service-connected disabilities, alone, were of such severity as to effectively preclude all forms of substantially gainful employment for which the Veteran's education and occupational experience would otherwise qualify him. CONCLUSIONS OF LAW 1. Prior to May 17, 2011, the criteria for a 60 percent evaluation for Legg-Perthe's disease with degenerative arthritis of the right hip were met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.4, 4.45, 4.7, 4.71a, Diagnostic Code 5255 (2017). 2. From July 1, 2012, through June 4, 2016, the criteria for a 70 percent, but not higher, evaluation for Legg-Perthe's disease with degenerative arthritis and right hip replacement have been met; from June 5, 2016, the criteria for an evaluation in excess of 70 percent have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5054 (2017). 3. Prior to July 24, 2014, the criteria for an initial evaluation of 20 percent for left knee osteoarthritis with chondromalacia, sprain, and medial meniscus tear have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.4, 4.45, 4.7, 4.71a, Diagnostic Code 5261 (2017). 4. The criteria for an initial evaluation in excess of 60 percent for a total left knee replacement have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5055 (2017). 5. Prior to June 5, 2016, the criteria for an initial evaluation in excess of 10 percent for sensory deficit over the L4 and L5 dermatome of the left lower extremity have not been met, and from that date the criteria for an evaluation of 40 percent have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2017). 6. Resolving reasonable doubt in favor of the Veteran, the criteria for a TDIU prior to July 29, 2013, are met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). Proper notice from VA must inform the veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Such notice must advise that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id.; 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.159, 3.326 (2017); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The duty to notify has been met through a letter to the Veteran. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187. The claims for increased evaluations for the left knee and sensory deficit over the L4 and L5 dermatome of the left lower extremity arise from disagreement with the initial disability ratings that were assigned following the grant of service connection. Courts have held that once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). With respect to the duty to assist in this case, the Veteran's service treatment records (STRs), VA treatment records, and private treatment records have been obtained and associated with the claims file. The Veteran was also provided with a VA examinations in conjunction with his claim. Overall, the examiners provided well-reasoned rationales for the opinions. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran and his representative have not made the RO or the Board aware of any additional pertinent evidence that needs to be obtained in order to fairly decide the issues addressed in this decision, and have not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of these issues. As there is no indication that there are additional records that need to be obtained that would assist in the adjudication of the claims, the duty to assist has been fulfilled. II. Increased Ratings Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4 (2017). The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155 (2012). The disability must be viewed in relation to its history. 38 C.F.R. § 4.1 (2017). A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7 (2017). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, consideration also must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14 (2017). A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different diagnostic codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not specifically contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that 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). Instead, the Mitchell Court explained that 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, as well as 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. See 38 C.F.R. §§ 4.40, 4.45. 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. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. A. Legg-Perthe's Disease with Degenerative Arthritis and Right Hip Replacement The Veteran is seeking evaluations for his right hip in excess of 30 percent prior to June 5, 2016, and in excess of 70 percent from that date. An evaluation of 100 percent was in effect from May 17, 2011, when the Veteran underwent a total right hip arthroplasty, through June 30, 2012. Normal ranges of motion of the hip are from hip flexion from 0 degrees to 125 degrees, and hip abduction from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5252 provides ratings based on limitation of flexion of the thigh. A 30 percent rating is assigned for flexion of the thigh that is limited to 20 degrees. A 40 percent rating is assigned for flexion of the thigh that is limited to 10 degrees. Diagnostic Code 5254 provides an 80 percent rating for hip, flail joint. 38 C.F.R. § 4.71a. Under Diagnostic Code 5255, a 30 percent rating is warranted for malunion of the femur with marked knee or hip disability. Fracture of the surgical neck of the femur, with false joint or fracture of the shaft or anatomical neck of the femur with nonunion, without loose motion, and weight bearing preserved with aid of a brace, warrants a 60 percent evaluation. Fracture of the shaft or anatomical neck of the femur with nonunion, with loose motion (spiral or oblique fracture) warrants an 80 percent evaluation. 38 C.F.R. § 4.71a. Under Diagnostic Code 5054, a 100 percent rating is provided for 1 year following implantation of a prosthetic replacement of the head of the femur or of the acetabulum. Following this 1 year period, a 30 percent minimum rating is warranted with the potential for the following higher ratings: a 50 percent rating is warranted for moderately severe residuals of weakness, pain, or limitation of motion; a 70 percent rating is warranted for markedly severe residual weakness, pain, or limitation of motion following implantation of prosthesis; and a 90 percent rating is warranted following implantation of prosthesis with painful motion or weakness such as to require the use of crutches. 38 C.F.R. § 4.71a. The Veteran reported at April 2008 VA treatment his right hip pain was getting progressively worse. At VA treatment in June 2008, right hip internal and external rotation were to 30 degrees each with complaint of pain at the extremes. Flexion was to 110 degrees. X-rays of the right hip showed significant femoral head flattening with shallow acetabulum and cystic changes to the femoral head with sclerotic changes acetabulum. The Veteran had a VA examination in November 2008 at which he had some difficulty standing erect due to the right hip. On examination there was extension of the hip to 0 degrees and no deformity. Abduction was 0 to 22 degrees and adduction was 0 to 17 degrees. Flexion with the knee bent was to 69 degrees, at which point there was significant pain. Total flexion was 0 to 95 degrees. External rotation was 0 to 60 degrees, which was noted to be normal. Internal rotation was 0 to 18 degrees. There was no change on repetitive motion. However, functional ability was additionally limited by pain, fatigue, and lack of endurance following repetitive use, causing major functional impairment. An MRI showed a flattened femoral head and mild osteoarthritis. The examiner opined that the Veteran had serious degenerative changes in the hip with chronic debilitating pain. Flare-ups occurred weekly, lasted 8 to 10 hours before subsiding, and were rated as 10 in intensity. Prolonged standing and using stairs caused flare-ups. The examiner noted that the Veteran was limited in his physical abilities due to the right hip. He needed help with some tasks at home. The examiner felt that the Veteran could bathe and dress himself, and he could undress and dress himself at the examination. The Veteran said at May 2009 VA treatment that that the right hip pain "sometimes woke him up at night." In April 2010 the Veteran underwent another VA examination at which he reported that his right hip condition had gotten progressively worse. Symptoms included pain, stiffness, deformity, limited motion, instability, and swelling, giving way, weakness, and incoordination. There were flare-ups weekly that were mild and lasted for 30 minutes. On examination range of motion was flexion to 125 degrees, extension to 0 degrees, and abduction to 30 degrees. The Veteran could cross his right leg over the left and could put his toes out to more than 15 degrees. There was objective evidence of pain following repetitive motion, and abduction was limited to 25 degrees after three repetitions of motion due to pain. Flexion and extension were not further limited. At VA treatment in August 2010 the Veteran said that he walked with a cane when he went outside the home. The symptoms related to his right hip had become more frequent. The Veteran received a corticosteroid injection in his right hip due to pain. At January 2011 VA treatment, range of motion of the right hip was external rotation to 25 degrees and internal rotation to 20 degrees. The Veteran had a VA examination in May 2011 at which he reported no discrete flare-ups of hip pain. It was noted that he used a cane due to his right hip condition. Range of motion was flexion to 65 degrees, extension to 25 degrees, abduction to 30 degrees, adduction to 15 degrees, internal rotation to 20 degrees, and external rotation to 60 degrees. There was pain at the ends of the ranges of motion. On repetitive testing there was no decrease of motion due to pain or fatigue. At September 2011 private treatment the Veteran had flexion to 150 degrees, internal rotation to 10 degrees, and external rotation to 30 degrees. November 2011 private treatment records state that range of motion of the right hip was flexion to 110 degrees, internal rotation to 10 degrees, and external rotation to 25 degrees. There was no pain with rotation, and there was pain in the groin area with resisted flexion. The Veteran had a VA examination in May 2012. He was using a rolling walker and had difficulty walking for more than a block. Range of motion was flexion to 45 degrees and extension to greater than 5 degrees. There was pain throughout the motions. Abduction was not lost beyond 10 degrees, adduction was limited such that the Veteran could not cross his legs, and rotation was not limited such that the Veteran could not toe out more than 15 degrees. There were no changes in range of motion on repetitive testing. However, the examiner also noted that there was less movement than was normal on repetitive testing. Therefore, the section of the examination report on range of motion on repetitive testing cannot be given significant probative value since it is contradictory. The examiner also noted that on repetitive use there was weakened movement, excess fatigability, pain on movement, instability of station, disturbance of locomotion, and interference with sitting, standing, and/or weight bearing. There was not ankylosis of the hip. It was also noted that post-right hip replacement, there were intermediate degrees of residual weakness, pain, and/or limitation of motion. The Veteran received an injection due to right hip pain at January 2013 VA treatment. At February 2013 VA treatment he said that he could not go to the mall due to lack of endurance in the right hip. VA treatment records show ongoing complaints of pain. The Veteran wrote in August 2014 that he had extreme residual weakness, pain, and limitation of motion in the right hip that necessitated using a walker. At May 2015 VA treatment, the Veteran said that the hip replacement initially alleviated some of the pain, but it returned. A November 2014 bone scan was negative for loosening of the right hip prosthesis. In April 2015 the Veteran said that he did not have pain everyday, but that when it occurred it was the same as before the surgery. At October 2015 VA treatment the Veteran complained of constant pain in his right hip and difficulty moving. The Veteran said at February 2016 private treatment that he had had persistent pain in the right hip since the hip replacement and that it worsened after the left knee replacement. On examination there was pain with right hip internal extra rotation, flexion, abduction, and extension. The Veteran's wife wrote in an April 2016 statement that prior to the 2011 hip replacement surgery, the Veteran sometimes spent entire days in bed because of the pain. In addition, his mobility was limited. There was not a greater level of mobility after the surgery. The Veteran could not stand long enough to help prepare a meal without having a lot of pain. Outside of the home, he needed a walker. The Veteran wrote in April 2016 that his right hip worsened after the 2011 surgery and that he had pain whenever he attempted to move or pick up anything. Certain weather caused his hip to ache and throb regardless of what precautions he took. The Veteran had a VA examination in June 2016 at which time he complained of worsening, constant hip pain. He had been told by two outside doctors that he would need corrective surgery. On examination range of motion was flexion to 45 degrees, extension to 20 degrees, abduction to 30 degrees, and adduction to 20 degrees. Adduction was not limited such that the Veteran could not cross his legs. External rotation was to 45 degrees and internal rotation was to 30 degrees. Pain limited all motion, and there was evidence of pain on weight bearing. On repetitive use testing there was no additional loss of range of motion. The examiner felt that pain, fatigue, and lack of endurance significantly limited functional ability with repeated use over time and during flare-ups. The Veteran said that during flare-ups he had burning and sharp pain in the groin and hip, burning around the previous incision, soreness, and dullness. There was not ankylosis or malunion or nonunion of the femur, flail hip joint, or leg length discrepancy. The examiner opined that the Veteran had markedly severe residuals of weakness, pain, or limitation of motion following implantation of prosthesis. The Veteran used a brace, cane, and walker. At February 2017 VA treatment the Veteran said that he was considering additional right hip surgery due to persistent, worsening pain. Regarding the period prior to May 17, 2011, the record does not show fracture of the surgical neck of the femur with false joint, as is required for a 60 percent evaluation, the next highest available under Diagnostic Code 5255. See 38 C.F.R. § 4.71a. April 2008 VA X-rays of the right hip showed significant femoral head flattening but did not show a fracture. Likewise, a November 2008 MRI showed a flattened femoral head. Flexion of the right hip was to 110 degrees at April 2008 VA treatment, and it was to 95 degrees at the November 2008 VA examination. At the April 2010 VA examination flexion was to 110 degrees, and at the May 2011 VA examination it was to 65 degrees. Therefore, the Veteran does not qualify for a 40 percent evaluation prior to May 17, 2011, based on limitation of flexion because it was not limited to 10 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5254. The record also does not show that the Veteran had right hip joint flail or ankylosis. Therefore Diagnostic Codes 5250 and 5254 are not applicable. See 38 C.F.R. § 4.71a. Ratings greater than 30 percent are not available under Diagnostic Codes 5251 and 5253 for limitation of extension, abduction, adduction, or rotation. See id. Under 38 C.F.R. §§ 4.40 and 4.45, and the decision in DeLuca, the Board is required to consider the Veteran's pain, swelling, weakness, and excess fatigability when determining the appropriate disability evaluation for a disability using the limitation of motion diagnostic codes. The weight of the lay and medical evidence shows that the Veteran had such disabling pain or functional impairment resulting from his right hip disability to warrant a higher ratings under 38 C.F.R. §§ 4.40 and 4.45 prior to May 17, 2011. See also DeLuca, 8 Vet. App. at 202. The November 2008 VA examiner opined that functional ability was additionally limited by pain, fatigue, and lack of endurance following repetitive use, causing major functional impairment. At the April 2010 VA examination there was objective evidence of pain on repetitive motion, and at August 2010 VA treatment the Veteran said that the symptoms related to his right hip had become more frequent. Therefore, giving the Veteran the benefit of the doubt, the Board finds that the evidence demonstrates that the evaluation for the Veteran's right hip disability should be increased to 60 percent prior to May 17, 2011. See DeLuca, 8 Vet. App. at 202; 38 C.F.R. § 4.71a, Diagnostic Codes 5255. The Veteran was not entitled to a rating greater than 60 percent. At the April 2010 VA examination, abduction was limited to by 5 additional degrees after three repetitions of motion, and flexion and extension were not further limited. See id. Regarding the period from July 1, 2012, the May 2012 examiner also noted that on repetitive use there was weakened movement, excess fatigability, pain on movement, instability of station, disturbance of locomotion, and interference with sitting, standing, and/or weight bearing. The Veteran said at February 2013 treatment that he could not go to the mall due to lack of endurance, and he wrote in August 2014 that he had extreme residual weakness, pain, and limitation of motion in the right hip that necessitated using a walker. The Veteran's wife wrote in April 2016 that he could not stand long enough to help prepare a meal without having a lot of pain, and that outside of the home he needed a walker. The Veteran wrote in April 2016 that his right hip worsened after the 2011 surgery and that he had pain whenever he attempted to "move or pick up anything." Certain weather caused his hip to ache and throb regardless of what precautions he took. The June 2016 VA examiner opined that the Veteran had markedly severe residuals of weakness, pain, or limitation of motion following implantation of prosthesis. The Veteran used a brace, cane, and walker. The record shows that the Veteran has had markedly severe residual weakness, pain, or limitation of motion related to his right hip since July 1, 2012. Therefore, he is entitled to a 70 percent rating for that entire period. See 38 C.F.R. § 4.71a, Diagnostic Code 5054. The Veteran is not entitled to a 90 percent rating, the next highest rating, because the record does not show that he has required the use of crutches. See id. The Veteran is not entitled to a higher rating for this period under 38 C.F.R. §§ 4.40 and 4.45 and the decision in DeLuca because the assigned 70 percent rating considers the Veteran's pain, swelling, weakness, and excess fatigability. B. Left Knee Osteoarthritis with Chondromalacia, Sprain, and Medial Meniscus Tear and Total Left Knee Replacement The Veteran is seeking evaluations for his left knee in excess of 10 percent prior to July 24, 2014, and in excess of 60 percent from September 1, 2015. A 100 percent evaluation was in effect from July 24, 2014, at which time the Veteran underwent a total knee replacement, through August 31, 2015. Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5010 provides that arthritis due to trauma that is substantiated by X-ray findings is to be rated as degenerative arthritis. Diagnostic Code 5003 provides that degenerative arthritis that is 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 there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, Diagnostic Code 5003 provides a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent 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. When there is limitation of motion of the specific joint or joints that is considered to be compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. Separate disability ratings are possible for arthritis with limitation of motion under Diagnostic Codes 5003 and instability of a knee under Diagnostic Code 5257. See VAOPGCPREC 23-97. When X-ray findings of arthritis are present and a veteran's knee disability is rated under Diagnostic Code 5257, the veteran would be entitled to a separate compensable rating under Diagnostic Code 5003 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98. Diagnostic Code 5257 provides ratings for other impairment of the knee that includes recurrent subluxation or lateral instability. Slight recurrent subluxation or lateral instability of the knee is rated 10 percent disabling; moderate recurrent subluxation or lateral instability of the knee is rated 20 percent disabling; and severe recurrent subluxation or lateral instability of the knee is rated 30 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. 38 C.F.R. § 4.71a. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint). Diagnostic Code 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. 38 C.F.R. § 4.71a. Under Diagnostic Code 5055, for a total knee replacement with prosthesis, a 100 percent evaluation is assigned for 1 year following implantation of the prosthesis. After that year, a minimum rating of 30 percent disabling is assigned. With intermediate degrees of residual weakness, pain or limitation of motion, the rater is directed to evaluate as analogous to Diagnostic Codes 5256, 5261, or 5262. A 60 percent evaluation is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. See 38 C.F.R. § 4.71a , Diagnostic Code 5055. At June 2008 VA treatment the left knee was essentially normal. The Veteran had a VA examination in November 2008 at which he had pain and normal range of motion. A November 2008 MRI of the knee showed mild meniscal tear, a sprain of the anterior cruciate ligamentous, and medial compartment osteoarthritic changes. At May 2009 VA treatment it was noted that the Veteran had knee patella femoral pain/chondromalacia. He rated the pain as 2 out of 10 in intensity. Lying straight, movement, and stairs were aggravating factors. Gait was antalgic with a cane. There was no obvious joint deformity or swelling, and there was tenderness on palpation of the inferior patellar aspect of the left knee. Range of motion of the left knee was flexion to 90 degrees and extension to 0 degrees. Stability tests were negative. The Veteran received a left knee steroid injection on July 2009. In April 2010 the Veteran underwent another VA examination at which he reported that his left knee condition was getting progressively worse. Symptoms included pain, stiffness, deformity, limited motion, instability, swelling, giving way, and weakness. There were flare-ups weekly that were mild and lasted from seconds to minutes. On examination there was guarding of movement, and there was no crepitation, clicking or snaps, grinding, instability, patellar abnormality, or meniscus abnormality. Range of motion was flexion to 120 degrees and extension to 0 degrees. After three repetitions, flexion was to 110 degrees and extension was to 0 degrees. There was no ankylosis of the left knee. At August 2010 VA treatment it was noted that the Veteran wore a neoprene sleeve on his left knee. At a May 2011 VA examination the Veteran complained of left knee pain with no exacerbating or relieving factors that he rated at 5 out of 10. The knee did not lock, but there was instability and swelling. Two cortisone injections provided temporary relief. Flare-ups occurred every three to four months, during which he had to stay off his feet completely. He used a knee brace. Range of motion was flexion to 120 degrees and extension to 0 degrees. There was mild pain at the ends of the motions. On repetitive use testing there was no decrease of motion due to pain or fatigue. There was no ligamentous laxity in any direction, tenderness to palpation, effusion, or swelling. At September 2013 VA treatment the Veteran reported intermittent pain and swelling in the left knee over the past 10 to 14 days. An October 2013 MRI from VA treatment showed a subsurface tear of the posterior horn of the medial meniscus. April 2014 VA treatment records state that the Veteran's left knee pain increased with activity. On examination range of motion was 15 to 110 degrees. The Veteran wrote in August 2014 that he had severe pain and weakness in the left knee. He wrote in April 2016 that he sometimes had burning left knee pain. There was sharp pain when he bent over or put weight on it. The left knee could not bear the weight of him standing and it became more painful in certain weather. The Veteran had a VA examination in June 2016. It was noted that he wore a brace and used a walker. Flare-ups caused burning, aching pain. Functional loss was limited prolonged sitting, standing, and walking, and difficulty getting in and out of a car and a chair. Range of motion was flexion to 110 degrees and extension to 0 degrees. The examiner noted that there was evidence of pain on weight bearing and that the pain caused functional loss. Range of motion was not reduced on repetitive use. However, pain, fatigue, and lack of endurance significantly limited functional ability with repeated use over time and during flare-ups. There was no ankylosis, history of recurrent subluxation, history of lateral instability, recurrent effusion, or history of a meniscus condition. Regarding the period prior to July 24, 2014, the treatment records and VA examinations show that flexion has been limited to as much as 90 degrees and extension has been limited to as much as 15 degrees. Therefore, the evaluation for the Veteran's knee is increased to 20 percent prior to July 24, 2014, based on extension being limited to 15 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5261. The Veteran is not entitled to a separate compensable evaluation for limitation of flexion because it was not limited to 45 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5261. Under the holding in Correia v. McDonald, 28 Vet. App. 158 (2016), a VA examination of the joints must, wherever possible, include the results of range of motion testing on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint in compliance with 38 C.F.R. § 4.59 (2017). Because the period before the Veteran's surgery in July 2014 is so remote, the Board finds that current testing under Correia would not assist in any assessment of knee impairment for this earlier time period. As such, there is no need to conduct additional development for this period. The Veteran was not entitled to a separate compensable evaluation for recurrent subluxation or lateral instability prior to July 24, 2014, because the record does not show that it was at least slight. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. He reported instability at the April 2010 and May 2010 VA examinations. However. on examination in April 2010 there was no instability, and at the May 2011 VA examination there was no ligamentous laxity. The record does not show left knee ankylosis, dislocated semilunar cartilage, impairment of the tibia and fibula, and genu recurvatum. Therefore, Diagnostic Codes 5256, 5258, 5262, and 5263 are not applicable. Under 38 C.F.R. §§ 4.40 and 4.45, and the decision in DeLuca, the Board is required to consider the Veteran's pain, swelling, weakness, and excess fatigability when determining the appropriate disability evaluation for a disability using the appropriate limitation of motion diagnostic codes. At the April 2010 VA examination, the Veteran reported weekly flare-ups that were mild and lasted from seconds to minutes. On repetitive use testing at the May 2011 VA examination, there was no decrease of motion due to pain or fatigue, and the Veteran reported flare-ups every three to four months, during which he had to stay off his feet completely. While the record shows complaints of pain and some flare-ups, the currently assigned 20 percent evaluation contemplates this. Therefore, the record does not show that the Veteran is entitled to an evaluation in excess of 20 percent for his left knee disability prior to July 24, 2014. Regarding the period from September 1, 2015, the Veteran has the maximum schedular evaluation of 60 percent. See 38 C.F.R. § 4.71a, Diagnostic Code 5055. In addition, 38 C.F.R. §§ 4.40 and 4.45, and the decision in DeLuca are not applicable for this period because the Veteran already has the maximum schedular rating. Since the Veteran has been assigned the maximum schedular rating, the Board will consider whether he is entitled to an extraschedular rating. The rating schedule represent as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b) (2017). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). The Court of Appeals for Veterans Claims (Court) has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating The symptoms associated with the Veteran's left knee, chronic residuals consisting of severe painful motion or weakness, are contemplated by the rating criteria and the assigned ratings, and the medical evidence fails to show anything unique or unusual about this disability that would render the schedular criteria inadequate. As the available schedular criteria for these service-connected disabilities are adequate, referral for consideration of an extraschedular rating is not warranted. The June 2016 VA examiner opined that the Veteran would be limited in walking, standing, and motion due to the service-connected knee disorder. While this would limit the employment, it is not marked interference. In addition, there have not been frequent hospitalizations related to the left knee from June 5, 2016. C. Sensory Deficit over the L4 and L5 Dermatome of the Left Lower Extremity The Veteran is seeking an evaluation in excess of 10 percent for left lower extremity sensory deficit. Diagnostic Code 8520 provides that mild incomplete paralysis of the sciatic nerve is rated 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; moderately severe incomplete paralysis is rated 40 percent disabling; and severe incomplete paralysis, with marked muscular atrophy, is rated 60 percent disabling. Complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, is rated 80 percent disabling. Diagnostic Code 8620 provides a rating for neuritis of the sciatic nerve. Diagnostic Code 8720 provides a rating for neuralgia of the sciatic nerve. The term "incomplete paralysis" with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the particular nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a. At a November 2008 VA examination there was noted to be some sensory deficit over the L4 and L5 dermatome in the left lower extremity. There were no other neurologic abnormalities detected. At May 2009 VA orthopedic treatment, a sensory examination of the lower extremities was normal. The Veteran had a VA examination in April 2010 at which he reported episodes of numbness and no feeling in the left lower extremity that lasted for a few seconds. The last episode was a month and a half before. On examination there was numbness. Light touch, vibration, position sense, and reflexes were normal. Testing showed mild sural nerve neuropathy and normal peroneal and tibial nerves. An EMG was normal. At an April 2011 VA examination there was slightly diminished light touch sensation over the left L4-L5 dermatomal distribution in the left lower extremity. Deep tendon reflexes were normal. The Veteran was diagnosed with mild left sciatic sensory neuropathy. At a July 2013 VA back examination, a sensory examination of the left lower extremity was normal. The Veteran had a VA examination in February 2015 at which he was diagnosed with sciatica. The left lower extremity had severe constant pain, moderate paresthesias and/or dysesthesias, and no numbness. There was full muscle strength and no muscle atrophy. At a June 5, 2016, VA examination there was moderate paresthesias and/or dysesthesias and numbness in the left lower extremity. The Veteran also had a peripheral nerves VA examination in June 2016. Symptoms attributable to peripheral nerve conditions in the left lower extremity were moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness. Muscle strength in the left lower extremity was active movement against some resistance, deep tendon reflexes were hypoactive, and a sensory examination was normal. The examiner felt that there was moderately severe incomplete paralysis of the sciatic nerve. The Veteran is not entitled to an evaluation in excess of 10 percent prior to June 5, 2016, because the record does not show that the sensory deficit over the L4 and L5 dermatome of the left lower extremity was of moderate severity. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. At the April 2010 VA examination, testing showed mild sural nerve neuropathy. He was diagnosed with mild left sciatic sensory neuropathy at the April 2011 VA examination. The overall symptomatology from the February 2015 VA examination was commensurate with a mild level of severity. From June 5, 2016, the Veteran is entitled to a 40 percent evaluation because the sensory deficit over the L4 and L5 dermatome of the left lower extremity was moderately severe. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. The June 5, 2016, VA examiner opined that there was moderately severe incomplete paralysis of the sciatic nerve. The Veteran is not entitled to a 60 percent evaluation because the record does not show severe incomplete paralysis with marked muscular atrophy. See id. III. TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (b (2017). A TDIU will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the purpose of determining whether there is one disability evaluated at 60 percent, or one disability evaluated at 40 percent where the combined rating of all service-connected disabilities is 70 percent or greater, disabilities resulting from a common etiology will be considered as "one disability." Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. See 38 C.F.R. § 4.16 (b) (2017). The Board does not have the authority to assign an extraschedular TDIU in the first instance. See Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but may not be given to his or her age or to any impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). The central inquiry is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Under the present decision of the Board, prior to July 29, 2013, service connection was in effect for Legg-Perthe's disease of the right hip with hip replacement, rated 60 percent; left knee osteoarthritis, rated 20 percent; lumbar spine degenerative disc disease, rated 10 percent; a sensory defect over the L4 and L5 dermatome in the left lower extremity, rated 10 percent; migraine headaches, rated noncompensable; and a right hip surgical scar, rated noncompensable. The combined rating was 70 percent. The Veteran meets the schedular requirement for a TDIU because the one service-connected disability is rated as at least 60 percent disabling. See 38 C.F.R. § 4.16(a). The Veteran wrote in November 2009 that he worked in after service until 1993 as a management assistant, computer assistant, and transcriber. He had not worked full time since 1993, when he received a Federal disability retirement. The Veteran has completed one year of college. The April 2010 VA examiner opined that the Legg-Perth's disease of the right hip and left knee disability caused decreased mobility, problems with lifting and carrying, difficulty reaching, lack of stamina, and weakness or fatigue. The Veteran would have to be assigned different duties and would have increased tardiness and absenteeism. The examiner did not feel that the Veteran could perform manual labor. The May 2012 VA examiner noted that the Veteran was a part time disc jockey and had extreme difficulty standing and moving his equipment. The treatment records show ongoing and consistent reports of pain due to service-connected disabilities. In light of the above, the Board determines that the competent evidence demonstrates that it is at least as likely as not that the Veteran was unemployable prior to July 29, 2013, due solely to his service-connected disabilities. The medical opinions and treatment records discussed above indicate that the Veteran would great difficulty doing any job due decreased mobility, problems with lifting and carrying, difficulty reaching, lack of stamina, and weakness or fatigue. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2014); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Therefore, affording the benefit of the doubt to the Veteran, entitlement to a TDIU rating is granted. ORDER An evaluation of 60 percent, but not higher, for Legg-Perthe's disease with degenerative arthritis of the right hip prior to May 17, 2011, is granted, subject to the law and regulations governing the payment of monetary benefits. An evaluation of 70 percent, but not higher, for Legg-Perthe's disease with degenerative arthritis and right hip replacement from July 1, 2012, through June 4, 2016, is granted, subject to the law and regulations governing the payment of monetary benefits; an evaluation in excess of 70 percent from June 5, 2016, is denied. An initial evaluation of 20 percent, but not higher, for left knee osteoarthritis with chondromalacia, sprain, and medial meniscus tear prior to July 24, 2014, is granted, subject to the law and regulations governing the payment of monetary benefits. An initial evaluation in excess of 60 percent for a left total knee replacement denied. An initial evaluation in excess of 10 percent prior to June 5, 2016, for L4 and L5 dermatome of the left lower extremity is denied; an evaluation of 40 percent, but not higher, from June 5, 2016, is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to a TDIU prior to July 29, 2013, is granted, subject to the law and regulations governing the payment of monetary benefits. REMAND In regards to the claims for entitlement to an initial evaluation in excess of 40 percent for right lower extremity radiculopathy and an effective date earlier than February 11, 2015, for the grant of service connection for right lower extremity radiculopathy, in October 2016 the Veteran submitted a notice of disagreement to the July 2016 rating decision. However, a review of the record shows that the RO has not issued the Veteran a statement of the case (SOC) with respect to these issues. Under the circumstances, the Board has no discretion and is obliged to remand this issue to the RO for the issuance of an SOC to the Veteran. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). VA treatment records to July 2017 have been associated with the claims file. Therefore, the RO should obtain all relevant VA treatment records dated from July 2017 to the present before the remaining issues are decided on the merits. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain VA treatment records from July 2017 to the present. 2. Issue the Veteran a statement of the case on his claims for service connection for entitlement to an initial evaluation in excess of 40 percent for right lower extremity radiculopathy and an effective date earlier than February 11, 2015 for the grant of service connection for right lower extremity radiculopathy, to include notification of the need to timely file a substantive appeal to perfect his appeal on this issue. Allow him an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs