Citation Nr: 20007697 Decision Date: 01/30/20 Archive Date: 01/29/20 DOCKET NO. 18-50 063A DATE: January 30, 2020 ORDER New and material evidence having been received, the petition to reopen a claim of service connection for back disability is granted. Service connection for a lumbar spondylosis is granted. Service connection for left hand/wrist disability is denied. Service connection for an acquired psychiatric disability is denied. Service connection for right hip disability is denied. Service connection for left hip disability is denied. Service connection for cellulitis of the right upper extremity is denied. Service connection for gastroesophageal reflux disease (GERD) is denied. An effective date prior to August 29, 2014, for service connection for status post total left knee arthroplasty is denied. A rating higher than 30 percent for status post total left knee arthroplasty is denied. A temporary 100 percent evaluation due to convalescence for left total hip replacement is denied. A total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. Discontinuance of entitlement to special monthly compensation based on housebound criteria effective December 1, 2014, was proper. FINDINGS OF FACT 1. In a November 2008 rating decision, the RO denied service connection for back condition; the Veteran did not timely initiate an appeal of that decision within one year of notification. 2. Evidence added to the record since the November 2008 rating decision denying service connection for back condition, relates to an unestablished fact necessary to substantiate that claim and raises a reasonable possibility of substantiating that claim 3. The Veteran’s lumbar spondylosis is proximately due to his service-connected bilateral knee disabilities. 4. The preponderance of the evidence is against finding that a left hand/wrist disability began during active service, or is otherwise related to an in-service injury or disease. 5. The preponderance of the evidence of record is against finding that the Veteran has had an acquired psychiatric disability at any time during or approximate to the pendency of the claim. 6. The preponderance of the evidence is against finding that a right hip disability began during active service, or is otherwise related to an in-service injury or disease. 7. The preponderance of the evidence is against finding that a left hip disability began during active service, or is otherwise related to an in-service injury or disease. 8. The preponderance of the evidence is against finding that cellulitis of the right upper extremity began during active service, or is otherwise related to an in-service injury or disease. 9. The preponderance of the evidence is against finding that gastroesophageal reflux disease (GERD) began during active service, or is otherwise related to an in-service injury or disease. 10. The Veteran’s claim for convalescence compensation following his total left knee arthroplasty was received August 29, 2014. 11. The December 2014 VA opinion found that the Veteran’s total left knee arthroplasty was at least as likely as not related to knee injury and treatment that occurred in service. 12. The Veteran’s status post total left knee arthroplasty manifests as pain, noncompensable limitation of motion, and subjective complaints of feelings of instability. 13. Service connection is a perquisite for a disability rating, to include a temporary total rating due to convalescence; the Veteran is not service-connected for left total hip replacement or any left hip disability. 14. The Veteran’s service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation. 15. As of December 1, 2014, the Veteran did not have a single service-connected disability rated 100 percent and an additional service-connected disability or disabilities ratable at 60 percent; there is no finding that he was permanently housebound by reason of a service-connected disability or disabilities. CONCLUSIONS OF LAW 1. The November 2008 rating decision that denied service connection for back disability is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 20.1103 (2017). 2. The criteria for reopening a claim of entitlement to service connection for back disability have all been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2018). 3. The criteria for service connection for lumbar spondylosis as secondary to bilateral knee disabilities are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2018). 4. The criteria for service connection for left hand/wrist disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2018). 5. The criteria for service connection for an acquired psychiatric disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 6. The criteria for service connection for right hip disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2018). 7. The criteria for service connection for left hip disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2018). 8. The criteria for service connection for cellulitis of the right upper extremity have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 9. The criteria for service connection for gastroesophageal reflux disease (GERD) have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 10. The criteria for an effective date prior to August 29, 2014, for service connection for status post total left knee arthroplasty have not been met. 38 U.S.C. §§ 5107, 5110(a) (2012); 38 C.F.R. §§ 3.102, 3.400 (2018). 11. The criteria for a rating higher than 30 percent for left knee replacement have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.71a, DC 5055, 5256, 5260, 5261 (2018). 12. The criteria for a temporary 100 percent evaluation due to convalescence for left total hip replacement have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.30 (2018). 13. The criteria for a total disability rating based on individual unemployability due to service-connected disability (TDIU) have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 3.102, 3.340, 3.341, 4.3, 4.16(a) (2018). 14. As of December 1, 2014, the criteria for special monthly compensation based on housebound criteria have not been met; therefore, discontinuance of this award was proper. 38 U.S.C. §§ 1114 (s), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.350(i), 3.352 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1978 to December 1984. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection 1. New and material evidence for a claim of service connection for back condition Prior to the filing of the current claim of entitlement to service connection for a back disability, the AOJ previously denied a claim of service connection for a back disability in November 2008. Generally, a claim which has been denied in an unappealed AOJ decision is final and may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 20.1100 (2018). Once the AOJ makes a determination as to a claim, it must mail to the claimant, and his or her representative if there is one, proper notice of the decision, including notice of the claimant’s procedural due process and appellate rights. 38 U.S.C. § 7105 (b)(1) (2012); 38 C.F.R. §§ 3.103 (b)(1), 19.25, 20.1103 (2018). An appeal of an AOJ decision to the Board is initiated by the filing of a notice of disagreement (NOD) with the decision. 38 U.S.C. § 7105 (a) (2012); 38 C.F.R. § 20.200 (2008). A NOD is a statement, reduced to writing, which can reasonably be construed as expressing dissatisfaction with the AOJ’s decision and a desire to contest the result. 38 U.S.C. § 7105 (b); 38 C.F.R. § 20.201 (2008). Except in the case of simultaneously contested claims (which this is not) the NOD must be filed within one year from the date of mailing of result of the initial determination. See 38 U.S.C. § 7105 (b)(1); see also 38 C.F.R. §§ 20.200, 20.201, 20.302 (2008). If a timely NOD is not filed, the determination becomes final and the claim will not thereafter be reopened or allowed, except as may otherwise be provided by regulations not inconsistent with Title 38 of the U.S. Code. 38 U.S.C. § 7105 (c) (2012). If the claimant files a timely NOD and the disagreement is not resolved, the AOJ must provide the claimant and his or her representative, if there is one, with an SOC. 38 U.S.C. § 7105 (d) (2012); 38 C.F.R. § 19.30 (2018). As a general rule, the appellant must file a substantive appeal within 60 days of the mailing of the SOC or within one year of the notice of the decision being appealed, whichever is later. 38 U.S.C. § 7105 (d)(1); 38 C.F.R. § 20.302 (b) (2018). A substantive appeal consists of a properly completed VA Form 9 or a correspondence containing the necessary information. 38 C.F.R. § 20.200 (2008). If a claimant fails to respond after receipt of the SOC, the AOJ may close the case. 38 U.S.C. § 7105 (d)(3); 38 C.F.R. § 19.32 (2012). Once the AOJ closes the case for failure to complete the appeal to the Board, the AOJ decision is final. 38 U.S.C. § 7105 (c); 38 C.F.R. § 20.1103. The exception to this rule of not reviewing the merits of a finally denied claim is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The regulation that implements 38 U.S.C. § 5108 defines “new and material evidence” as evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of evidence previously of record, and which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2018). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence can be neither cumulative nor redundant of the evidence already of record and must raise a reasonable possibility of substantiating the claim. Id. Of note, under 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. If VA receives new evidence within the appeal period of an AOJ decision, it must make a determination as to whether the evidence is new and material and if it does not do so then the claim does not become final but rather it remains pending. See Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014). In determining whether evidence is “new and material,” the credibility of the evidence in question must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The November 2008 rating decision denied service connection for a back disability because there was no current diagnosis and no evidence of an in-service injury or disease related to the Veteran’s back. The evidence received since the November 2008 rating decision includes medical diagnoses of lumbosacral spondylosis and a January 2019 private opinion linking his current back disability to his service-connected knee disabilities. Thus, the new evidence relates directly to the unestablished fact of whether the Veteran has a current back condition and links this condition to his service-connected disabilities, which raises a reasonable possibility of substantiating that claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, the Board concludes that the criteria for reopening a claim of service connection for a back disability have been met. 2. Service connection for lumbar spondylosis The Veteran contends that his current back disability is causally related to his service-connected knee disabilities. VA treatment records show the Veteran has a current disability of lumbar spondylosis, and a private examiner opined that it is at least as likely as not proximately due to his service-connected bilateral knee disabilities. The rationale was that the Veteran’s knee disabilities resulted in a modified gait, which caused additional wear and tear on his back beyond the natural aging progress. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current back disability is proximately due to his service-connected bilateral knee disabilities. Accordingly, after resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for lumbar spondylosis is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Service connection for left hand/wrist disability The Veteran is seeking service connection for a left hand/wrist disability. Certain chronic diseases will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. The question for the Board is whether the Veteran has a chronic disease that was noted as chronic in service or that manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service. The Board concludes that, while the Veteran reports arthritis of the left hand and wrist, which are chronic diseases under 38 C.F.R. § 3.309(a), neither was shown as chronic in service or within a presumptive period, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. VA treatment records show complaints of left wrist pain, but no diagnosis of arthritis or x-rays showing arthritis. At the time of his May 2015 Tennessee Disability Determination Services examination, the Veteran reported a history of arthritis in his left hand and wrist since 2010, decades after his separation from service. The Veteran’s lay statements alone are insufficient to establish a diagnosis of arthritis as such a diagnosis requires x-ray evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). While a diagnosis arthritis is not confirmed by the medical evidence of record, there is evidence of left wrist pain that limited range of motion. See e.g., August 20, 2015 VA treatment record. As functional loss is shown, the Veteran’s otherwise undiagnosed left wrist pain is sufficient to qualify as a disability. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Service connection for a left hand/wrist disability may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a nexus exists between the Veteran’s left wrist pain and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. VA did not obtain a medical nexus opinion on this issue. VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). Here, the Board finds no evidence beyond the Veteran’s claim suggesting that his current left wrist pain is causally related to his military service or was ever present during his active service. The evidence does not show a relevant in-service disease or injury and he has not identified one. As such, an opinion is not necessary. For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran’s claim of entitlement to service connection for left hand/wrist disability and his appeal must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Service connection for an acquired psychiatric disability The Veteran is seeking service connection for an acquired psychiatric disability. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current psychiatric diagnosis and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Indeed, the Veteran has submitted a private disability determination that included a September 2015 finding that Fluctuations in stress tolerance are normal secondary to physical impairments and do not necessarily constitute a separate and severe psychiatric impairment. No diagnosis of a mental impairment has been made and no psychotropic medications have been prescribed by any [treatment provider] for a mental condition. There is no indication of mental retardation or substance abuse, psychiatric hospitalizations, or treatment/therapy at a mental health facility. The records for this claimant indicate there is no severe psych MDI established and nothing in the file indicates that further psychiatric development is warranted. Furthermore, VA treatment records repeatedly found the Veteran’s mood and affect stable. There is no showing that the Veteran has psychiatric symptoms that reach the level of a functional impairment of earning capacity. Cf. Saunders, 886 F.3d 1356 (holding that “pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability” if it “reaches the level of a functional impairment of earning capacity.”). While the Veteran believes he has a current psychiatric diagnosis, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau, 492 F.3d 1372, 1377, 1377 n.4. Consequently, the Board gives more probative weight to the competent medical evidence. VA did not obtain a medical nexus opinion on this issue. VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. See McLendon, 20 Vet. App. 79, 81-82. Here, the Board finds no indication beyond the Veteran’s claim suggesting that he has a current psychiatric condition that is causally related to his military service, was ever present during his active service, or is causally related to a service-connected disability. This is insufficient to warrant the need to provide a medical examination as this would, contrary to the intent of Congress, result in medical examinations being “routinely and virtually automatically” provided to all veterans claiming service connection. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010); see also Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010). As such, an opinion is not necessary. For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran’s claim of entitlement to service connection for an acquired psychiatric disability and his appeal must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. 5. Service connection for cellulitis of the right upper extremity The Veteran is seeking service connection for cellulitis of the right upper extremity. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden, 381 F.3d 1163, 1166 -67. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. VA did not obtain a medical nexus opinion on this issue. VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. See McLendon, 20 Vet. App. 79, 81-82. Here, the record shows that the Veteran had cellulitis in the right upper extremity in 2011. He underwent surgical debridement and skin grafting. At the time of his May 2015 Tennessee Disability Determination Services examination, he reported a history of right arm cellulitis and fasciitis in 2007 for which he underwent surgery and continued to have pain on range of motion of the right shoulder. Even if the earlier date of 2007 is correct, this is insufficient to warrant the need to provide a medical examination as it was decades after the Veteran’s separation from service. The evidence does not show a relevant in-service disease or injury and the Veteran has not provided lay evidence of one. As such, an opinion is not necessary. While the Veteran believes his cellulitis of the right upper extremity is related to his active duty military service, the Board reiterates that the preponderance of the evidence weighs against findings that any related in-service injury, event, or disease occurred. For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran’s claim of entitlement to service connection for cellulitis of the right upper extremity and his appeal must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. 6. Service connection for gastroesophageal reflux disease (GERD) The Veteran is seeking service connection for gastroesophageal reflux disease (GERD). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden, 381 F.3d 1163, 1166 -67. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. VA did not obtain a medical nexus opinion on this issue. VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. See McLendon, 20 Vet. App. 79, 81-82. Here, the Board finds no indication beyond the Veteran’s claim suggesting that his GERD is causally related to his military service or was ever present during his active service. The evidence does not show a relevant in-service disease or injury and the Veteran has not provided lay evidence of one. As such, an opinion is not necessary. For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran’s claim of entitlement to service connection for GERD and his appeal must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. 7. Service connection for right hip disability 8. Service connection for left hip disability The Veteran is seeking service connection for bilateral hip disabilities. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran had a diagnosis of left hip arthritis as evidenced by the January 2018 VA radiology report. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. There is no medical evidence of right hip arthritis. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. VA radiology records first showed mild degenerative changes of the left hip in June 2016, decades after his separation from service and decades outside of the applicable presumptive period. Service connection for right and left hip disabilities may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between either of the Veteran’s hip disabilities and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. VA did not obtain a medical nexus opinion on these issues. VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). Here, while the Veteran has a diagnosis of left hip arthritis and complaints of right hip pain, the preponderance of the evidence is against finding that either condition began during active service, or is otherwise related to an in-service injury, event, or disease. The Board finds no indication beyond the Veteran’s claim suggesting that he has a current right hip condition is causally related to his military service or was ever present during his active service. This is insufficient to warrant the need to provide a medical examination as this would, contrary to the intent of Congress, result in medical examinations being “routinely and virtually automatically” provided to all veterans claiming service connection. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010); see also Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010). Moreover, the evidence does not show a relevant in-service disease or injury to either hip. To the extent that the Veteran has alleged that his bilateral hip conditions are related to his service-connected knee disabilities, there is no indication linking these conditions beyond the Veteran’s unsupported lay statements. The January 2019 private opinion note that the examiner was asked to provide an opinion as to whether the Veteran’s back and hip disabilities were related to his service-connected knee disabilities. Ultimately, this physician found that the Veteran’s back disability was likely related to his service-connected knee disabilities, but did not provide any such opinion for the claimed hip disabilities. As such, medical nexus opinions are not necessary. For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran’s claim of entitlement to service connection for right hip disability and left hip disability and his appeal must be denied. There is no reasonable doubt to be resolved as to these issues. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. 9. An effective date prior to August 29, 2014 for service connection for status post total left knee arthroplasty the Veteran was originally granted service connection for left total knee arthroplasty in a December 2014 rating decision. At that time a total (100 percent) rating was assigned effective August 29, 2014, and a 30 percent rating was assigned effective December 1, 2014. Unless specifically provided otherwise in Chapter 51 of Title 38 of the U.S. Code, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110 (a). Generally, the effective date of an award of service connection is the date of separation from service if the claim is received within one year of separation; otherwise, the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (b)(2). Additionally, an award made under a liberalizing VA issue may be entitled to an effective date of one year prior to the date of receipt of the veteran’s post-liberalization claim, if the veteran met all the criteria of the liberalizing law as of the effective date of the liberalizing law. 38 C.F.R. § 3.114 (a)(3). The Veteran’s claim for convalescent compensation was received on August 29, 2014. He had undergone left knee replacement surgery on August 11, 2014. As the Veteran was not service connected for any left knee disability at that time, VA sought a medical nexus opinion. In response, a December 2014 opinion linked the Veteran’s current left knee disability to his in-service left knee injuries. The record does not contain any communication or action that could be construed as an informal claim of service connection for a left knee condition until the August 29, 2014, claim. See 38 C.F.R. § 3.1 (2006)(defining informal claims prior to March 24, 2015); 38 C.F.R. § 3.155 (a)(2006); see also 79 Fed. Reg. 57660 (Sept. 25, 2014)(amending VA regulations to eliminate informal claims). Indeed, the earlier communications from the Veteran focused on his right knee disability, a claim for dental treatment, and earlier back claim, and TDIU. Although some left knee symptoms are shown in the medical record prior to this time, the Veteran did not raise the issue of service connection for those symptoms until the August 2014 claim. The question then becomes when entitlement to service connection for a left knee disability arose. Here, the record clearly establishes that the Veteran had left knee symptoms, including some limitation of motion, that predated the August 2014 claim. For example, the June 2013 VA examination noted limitation of left knee flexion to 130 degrees. However, there is no evidence of a link between these symptoms and the Veteran’s in-service knee injuries until the December 2014 opinion. Thus, the evidence supports a finding that the relationship between the Veteran’s left knee symptoms and his in-service knee injuries predated the August 2014 claim. Again, the effective date of an award of service connection is the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (b)(2). As the relationship between the Veteran’s left knee symptoms and his in-service knee injuries predated the August 29, 2014 claim, the date of that claim shall become the effective date of service connection. Therefore, the Board concludes that the preponderance of the evidence is against an effective date earlier than August 29, 2014, for the grant of service connection for left knee disability. 10. A rating higher than 30 percent for status post total left knee arthroplasty As noted above, the Veteran was originally granted service connection for left total knee arthroplasty in a December 2014 rating decision. At that time a total (100 percent) rating was assigned effective August 29, 2014, and a 30 percent rating was assigned effective December 1, 2014. The Veteran is seeking a higher rating for this second stage. Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). DC 5055 provides a 100 percent rating for the first year following implantation of a prosthetic replacement of knee joint and a minimum rating of 30 percent thereafter. 38 C.F.R. § 4.71a. When there are intermediate degrees of residual weakness, pain or limitation of motion, the disability is rated by analogy to Diagnostic Codes 5256, 5261, or 5262. 38 C.F.R. § 4.71a, DC 5055. When there are chronic residuals consisting of severe painful motion or weakness in the affected extremity, a 60 percent rating is warranted. Id. DC 5260 provides rating criteria for limitation of extension of the knee. Under DC 5260, a 10 percent rating will be assigned for limitation of flexion of the knee to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the knee to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the knee to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Additionally, DC 5261 dictates that limitation of extension of the knee to 10 degrees is 10 percent disabling, extension limited to 15 degrees is 20 percent disabling, and extension limited to 20 degrees is 30 percent disabling. 38 C.F.R. § 4.71a, DC 5261. Normal range of motion of the knee is zero degrees of extension to 140 degrees of extension. 38 C.F.R. § 4.71a, Plate II. If the criteria for a compensable rating under both DC 5260 and DC 5261 are met, separate ratings can be assigned. VAOPGCPREC 9-2004 (Sept. 17, 2004). Similarly, a claimant who has both arthritis and instability of the knee may be rated separately under DC 5010 and 5257. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997). DC 5256 provides rating criteria for ankylosis of the knee. 38 C.F.R. § 4.71a. Favorable ankylosis of the knee, in full extension or in slight flexion between 0 degrees and 10 degrees warrants a 30 percent disability rating; ankylosis in flexion between 10 degrees and 20 degrees warrants a 40 percent disability rating; ankylosis in flexion between 20 degrees and 45 degrees warrants a 50 percent disability rating; and extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more warrants a 60 percent disability rating. 38 C.F.R. § 4.71a, DC 5256. VA treatment records from the appeals period show complaints of left knee pain. A November 2014 VA treatment record notes that the Veteran was referred to physical therapy for knee braces due to feelings of instability. He was issued large hinged braces and instructed on their use and care. In December 2015 the Veteran underwent a VA knee disabilities examination. At that time, he reported chronic bilateral knee pain with reduction of motion both knees and flare ups of bilateral knee pain with overuse. He also reported pain with squatting, climbing steps, walking, prolonged standing, and kneeling. Range of motion testing range of motion from zero to 90 degrees bilaterally with pain noted in flexion and extension that caused functional loss. There was evidence of pain with weight bearing. There was no objective evidence of crepitus or localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran was able to perform repetitive use testing without additional functional loss or loss of range of motion. The Veteran was not examined immediately after repetitive use over time and the examiner found that the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. Similarly, the Veteran was not examined during a flare-up and the examiner found that the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss during a flare-up. This examiner was unable to state, without resorting to mere speculation, whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time or during flare-ups because there was insufficient medical evidence on which such an opinion could be based. The Veteran had slightly decreased (4/5) muscle strength in forward flexion and extension bilaterally. He did not have muscle atrophy. There was no ankylosis in either knee. There was no history of lateral instability in either knee and stability testing found no joint instability. There was a history of recurring effusions in both knees with overuse, but this had not required any medical interventions. The Veteran did not have a history of or current symptoms of recurrent patellar dislocation, “shin splints” (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. He had a history of meniscal tear in the right knee. He had no current meniscal condition as he had bilateral total knee replacements. He did not have any other pertinent physical findings, complications, conditions, signs or symptoms related to his knee disabilities. He had associated surgical scars measuring 15 cm by .7 cm on the left knee and 15 cm by .5 com on the right. These scars were not located on the head, face, or neck and were not painful or unstable. He constantly used a cane as a normal mode of locomotion due to his bilateral knee disabilities. Neither of the Veteran’s bilateral knee disabilities resulted in functional impairment of an extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. The Veteran’s bilateral knee disabilities impacted his ability to work in that he was unable to perform duties requiring standing, walking, squatting, kneeling, climbing or descending stairs, crawling, or operating machinery controls that required repetitive flexing and extending of the knees. Based on the above, the Board determines that a rating higher than 30 percent is not warranted. At no point during this period did the Veteran’s left knee demonstrate a compensable degree of limitation of flexion (45 degrees or less) or extension (10 degrees or more). 38 C.F.R. § 4.71a, DC 5260, 5261. Likewise, there is no evidence of ankylosis at any time during this period. 38 C.F.R. § 4.71a, DC 5256. As such, ratings based on his painful limitation of motion would not provide a rating higher than the 30 percent minimum rating already in place. Similarly, the lack of a compensable degree of limitation of motion argues against a finding that the Veteran’s residuals are severe as to warrant a 60 percent rating under DC 5055. Despite the Veteran’s reports of feelings of instability, stability testing found the Veteran’s knee stable. Whether the subjective reports of instability are due to actual instability is not determinable by the Veteran’s reports and the Board finds the objective testing for instability more probative. As such the preponderance of the evidence is against a finding of even slight instability as required for a separate compensable rating under DC 5257. See 38 C.F.R. § 4.71a. The Veteran’s left knee disability has been associated with a surgical scar; however, there is no indication that this scar is painful, unstable, or large (more than six square inches). Thus, a separate compensable rating is not warranted. See 38 C.F.R. § 4.118, DC’s 7801, 7802, 7804, 7805. Therefore, the Board finds that the preponderance of the evidence is against a schedular rating higher than 30 percent for left knee replacement. Hence the appeal as to a higher rating for this disability must be denied. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. 11. A temporary 100 percent evaluation due to convalescence for left total hip replacement The Veteran is seeking a temporary total (100 percent) rating due to convalescence for left total hip replacement. A total disability rating (100 percent) is assigned under 38 C.F.R. § 4.30 when treatment of a service-connected disability results in at least one month convalescence; surgery with severe postoperative residuals; or immobilization by cast, without surgery, of one or more major joint. 38 C.F.R. § 4.30(a). Service connection is a perquisite for a disability rating, to include a temporary total rating due to convalescence. As explained above, the Veteran is not service-connected for a left hip disability. Therefore, his claim of entitlement to a temporary total rating due to convalescence is denied. 12. TDIU Total disability ratings for compensation may be assigned, 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 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 purposes of this schedular threshold, disabilities of the bilateral lower extremities, including the bilateral factor, are a single disability. See id. Here, the Veteran is service connected for right and left knee disabilities, each assigned 30 percent ratings, which combined with the bilateral factor equal a 60 percent rating for a single disability. This is sufficient to meet the schedular criteria for TDIU consideration even without consideration of his service-connected hypertension and lumbar spondylosis. The issue becomes whether the Veteran was unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. The issue is whether the Veteran’s service-connected disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a “living wage”). Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In this case, the Veteran last worked in February 2015. A February 2015 letter to the Veteran from that employer noted that he had taken off work from July 23, 2014, to January 10, 2015 for medical reasons. During that time, his employer continued to pay his health insurance premiums, but the Veteran did not receive a paycheck. In a November 2015 opinion, a vocational specialist noted that the Veteran was of advanced age with a twelfth-grade education. His prior work included truck operator, garbage collector, and security guard. His physical limitations made him unable to return to his past work. There was an insufficient number of jobs to which he would be able to adjust given his reduced functional capacity. As his reduced functional capacity limitations precluded him from returning to work, this vocational specialist directed a decision of disabled. The December 2015 VA examination noted that the Veteran was unable to perform duties requiring standing, walking, squatting, kneeling, climbing or descending stairs, crawling, or operating machinery controls which require repetitive flexing and extending of the knees. His bilateral knee disabilities rendered him unable to lift and carry heavy materials which involve knee lifting or walking; unable to repetitive push and pull with either lower extremity; unable to squat, kneel, or crawl on either knee; unable to squat, kneel, or crawl on either knee; and unable stand to work or climb ladders or stairs. There were no restrictions to sitting, grasping, or gripping. A January 2019 private opinion found that the Veteran’s service-connected impairments more likely than not prevented him from maintaining substantially gainful employment since August 29, 2014. He is entirely precluded from performing any of his previous work as a result of his bilateral knee disabilities as he does not have the ability to stand, walk, or use his lower extremities for push/pulling. His issues with focus due to pain and sleepiness hinder his ability to maintain adequate focus to learn new skills, remain on task for more than a few minutes, work uninterrupted, or refrain from decomposing when presented with even minor or moderate workplace stresses. In an August 2019 opinion, a vocational consultant found that the Veteran was totally occupationally disabled from all competitive employment due to his service-connected bilateral knee disabilities and had been since August 2014. Specifically, she found that the Veteran’s knees limited him to sedentary tasks with postural restrictions, which prevented him from returning to his prior work and he lacked the marketable work skills, education, and training to enable him to enter the sedentary work force. Based on the above, the Veteran’s knee disabilities would prevent manual labor and limit sedentary work. His prior work history, education, and training would further impede his ability to secure and maintain sedentary work. As a result, the Veteran would not be capable of performing gainful employment. Thus, TDIU is granted. 13. Discontinuing entitlement to special monthly compensation based on housebound criteria effective December 1, 2014, is proper In a December 2014 rating decision, the Veteran was awarded special monthly compensation based on housebound status from August 29, 2014, until November 30, 2014. In order to qualify for SMC at the housebound rate, the Veteran must have a single service-connected disability rated 100 percent and either: (1) have an additional service-connected disability or disabilities ratable at 60 percent, separate and distinct from the 100 percent service-connected disability, and involving different anatomical segments or bodily systems; or (2) be permanently housebound by reason of a service-connected disability or disabilities. Permanently housebound means the Veteran is substantially confined, as a direct result of a service-connected disability or disabilities, to his dwelling or the immediate premises (or, if institutionalized, to the ward or clinical areas), and it is reasonably certain that the service-connected disability or disabilities and resultant confinement will continue throughout his lifetime. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). From August 29, 2014, until November 30, 2014, the Veteran was in receipt of total (100 percent) ratings for both his right knee replacement and his left knee replacement. As a result, he met the statutory requirements for SMC at the housebound rate. The total rating for his left knee replacement continued until September 30, 2015, but his remaining service-connected disability at that time, his right knee, was only rated 30 percent. Thus, the statutory requirements for SMC at the housebound rate were not satisfied after November 30, 2014. The record does not contain any finding that the Veteran was permanently housebound due to his service-connected disabilities on or after November 30, 2014. Thus, the requirements for SMC at the housebound rate have not been met since November 30, 2014. Therefore, discontinuance of this award as of November 30, 2014, was proper. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Houbeck The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.