Citation Nr: A21017002 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 181106-1164 DATE: October 20, 2021 ORDER An effective date of January 10, 2011, but no earlier, for the grant of compensation under 38 U.S.C. § 1151 for right knee residuals status post total knee replacement is granted. An effective date prior to October 10, 2012 for the grant of service connection for thoracolumbar intervertebral disc syndrome (IVDS) with degenerative arthritis of the spine and spinal stenosis associated with right knee residuals status post total knee replacement is denied. An effective date prior to April 3, 2014 for the grant of service connection for left knee degenerative joint disease associated with right knee residuals status post total knee replacement is denied. An effective date prior to April 3, 2014 for the grant of service connection for unspecified depressive disorder with unspecified anxiety disorder associated with right knee residuals status post total knee replacement is denied. Service connection for a right hip disability associated with right knee residuals status post total knee replacement is granted. Service connection for a left hip disability associated with left knee residuals status post total knee replacement is granted. A disability rating in excess of 40 percent for the service-connected right knee residuals status post total knee replacement (excluding periods of temporary total disability) is denied. An initial disability rating in excess of 70 percent for the service-connected unspecified depressive disorder with unspecified anxiety disorder associated with right knee residuals status post total knee replacement is denied. REMANDED An initial disability rating in excess of 10 percent for the service-connected thoracolumbar IVDS with degenerative arthritis of the spine and spinal stenosis associated with right knee residuals status post total knee replacement is remanded. An initial disability rating in excess of 10 percent for the service-connected left knee degenerative joint disease associated with right knee residuals status post total knee replacement is remanded. A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities for the period on appeal prior to April 3, 2014 is remanded. Special monthly compensation (SMC) at the housebound rate for the period on appeal prior to April 3, 2014 and for the period on appeal from May 1, 2015 is remanded. FINDINGS OF FACT 1. The Veteran suffered an aggravation of a preexisting right knee disability as a result of VA negligence in the performance of a revision of a right knee total knee replacement on January 10, 2011; the Veteran's formal claim under 38 U.S.C. § 1151 was received within one year of the aggravation on February 25, 2011. 2. The Veteran's informal claim for service connection for a low back disability was received on October 10, 2012. No communication prior to the claim received on October 10, 2012 can be construed as an informal or formal claim of service connection for a low back disability. 3. The Veteran's informal claim for service connection for a left knee disability was received on April 3, 2014. No communication prior to the claim received on April 3, 2014 can be construed as an informal or formal claim of service connection for a left knee disability. 4. The Veteran's informal claim for service connection for a psychiatric disorder was received on April 3, 2014. No communication prior to the claim received on April 3, 2014 can be construed as an informal or formal claim of service connection for a psychiatric disorder. 5. The evidence is at least evenly balanced as to whether the Veteran's right hip disability, which results in functional impairment to earning capacity, is proximately due to the Veteran's service-connected right knee residuals status post total knee replacement. 6. The evidence is at least evenly balanced as to whether the Veteran's left hip disability, which results in functional impairment to earning capacity, is proximately due to the Veteran's service-connected right knee residuals status post total knee replacement. 7. The Veteran's right knee residuals status post total knee replacement results in chronic residuals consisting of severe painful motion or weakness in the affected extremity, with a baseline severity of 20 percent for pre-existing dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 8. For the entire period on appeal, the Veteran's PTSD has not more nearly approximated total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for an effective date of January 10, 2011, but not earlier, for the grant of compensation for right knee residuals status post total knee replacement pursuant to 38 U.S.C. § 1151 have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400. 2. The criteria for an effective date prior to October 10, 2012 for the grant of service connection for IVDS with degenerative arthritis of the spine and spinal stenosis have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400. 3. The criteria for an effective date prior to April 3, 2014 for the grant of service connection for left knee degenerative joint disease have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400. 4. The criteria for an effective date prior to April 3, 2014 for the grant of service connection for unspecified depressive disorder with unspecified anxiety disorder have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400. 5. The criteria for service connection for a right hip disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for a left hip disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 7. The criteria for a disability rating in excess of 40 percent for the service-connected right knee residuals status post total knee replacement have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.310(b) 4.1, 4.2, 4.3, 4.7, 4.10, Diagnostic Codes 5055, 5258. 8. The criteria for an initial disability rating in excess of 70 percent for the service-connected unspecified depressive disorder with unspecified anxiety disorder have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.126, 4.130, Diagnostic Code 9410. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1970 to October 1970. This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2018 Department of Veterans Affairs (VA) Regional Office (RO) Higher-Level Review (HLR) rating decision issued pursuant to the Rapid Appeals Modernization Program (RAMP). In that decision, the RO denied an effective date prior to February 25, 2011 for the grant of compensation under 38 U.S.C. § 1151 for right knee residuals status post total knee replacement; denied an effective date prior to October 10, 2012 for the grant of service connection for a low back disability; and denied an effective date prior to April 3, 2014 for the grants of service connection for a left knee disability, and a psychiatric disorder. Also, in that rating action, the RO denied service connection for right and left hip disabilities; denied an initial disability rating in excess of 40 percent for the service-connected right knee disability; denied an initial disability rating in excess of 10 percent for the service-connected low back disability; denied an initial disability rating in excess of 10 percent for the service-connected left knee disability; denied an initial disability rating in excess of 70 percent for the service-connected psychiatric disability; denied the assignment of a TDIU for the period on appeal prior to April 3, 2014; and denied the ancillary issue of entitlement to SMC at the housebound rate for the period on appeal prior to April 3, 2014 and the period on appeal from May 1, 2015. By way of history, in a February 2013 rating decision, the RO concluded that the Veteran's claim for the award of compensation under 38 U.S.C. § 1151 for right knee residuals status post total knee replacement was not well-grounded. In February 2013, VA received the Veteran's Notice of Disagreement (NOD). In a March 2015 rating decision, the RO denied service connection for a low back disability, left knee disability, psychiatric disability, right hip disability, and left hip disability all claimed as secondary to the right knee residuals status post total knee replacement for which the Veteran sought compensation under 38 U.S.C. § 1151. In April 2015, VA received the Veteran's NOD. Thereafter, in a November 2016 rating decision, the RO granted compensation under 38 U.S.C. § 1151 for the right knee residuals status post total knee replacement, and assigned an initial 40 percent disability rating (with periods of temporary total ratings from February 25, 2011 to March 1, 2012 and from March 4, 2014 to May 1, 2015), granted service connection for a low back disability with an initial disability rating of 10 percent effective from October 10, 2012, granted service connection for a left knee disability with an initial disability rating of 10 percent effective from April 3, 2014, granted service connection for a psychiatric disorder with an initial disability rating of 70 percent effective from April 3, 2014; and, granted a TDIU effective from April 3, 2014, and, granted SMC from April 3, 2015 to May 1, 2015. In January 2017, VA received the Veteran's NOD with the initial evaluations and effective dates assigned for the grants of service connection, the TDIU, and the SMC. Alongside the November 2016 rating decision, the RO issued a Statement of the Case (SOC) for the issues of service-connection for right and left hip disabilities. In January 2017, VA received the Veteran's VA Form 9 appeal to the Board. On May 4, 2018, the Veteran opted into RAMP. He selected the HLR lane. By requesting to participate in the new appeals process, the Veteran effectively withdrew his legacy appeal. In response, the RO issued the September 2018 HLR rating decision currently on appeal. Following the September 2018 decision, in November 2018, VA received the Veteran's RAMP NOD. The Veteran selected the Hearing docket. However, in October 2020, the Veteran withdrew his request for a hearing. Therefore, the Veteran had 90 days from the Board's receipt of the withdrawal to submit additional evidence. That evidentiary window has passed. Given the above, the Board may only consider evidence of record at the time of the May 2018 RAMP election as well as any evidence submitted within 90 days of the withdrawal of the hearing request. See 38 C.F.R. § 20.302(b). Finally, in an April 2018 rating decision, the RO denied service connection for a left elbow disability, service connection for fractured ribs, service connection for left arm cubital tunnel syndrome, service connection for left hand carpal tunnel syndrome, service connection for a punctured lung, and eligibility to permanent and total status for compensation, to include ancillary benefits under the Civilian Health and Medical Program of VA (CHAMPVA). The appellant with regard to the claim for ancillary benefits is the Veteran's spouse. On May 17, 2018, VA received the Veteran's NOD with the April 2018 with an attached RAMP opt-in election. In the opt-in form, the Veteran selected the HLR lane and requested an informal conference. To date, the RO has not recognized the May 17, 2018 opt-in, provided an informal conference with regard to the issues denied by the April 2018 rating decision, or readjudicated the issues denied by the April 2018 in an HLR rating decision. Therefore, the Board lacks jurisdiction over these issues, and the matters are referred to the RO for appropriate action. Effective Date Generally, the effective date for an award based on, inter alia, an original claim of service connection shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C. § 5110(a). Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of the receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. See also 38 U.S.C. § 5110(a); Sears v. Principi, 16 Vet. App. 244 (2002). The effective date of an award of service connection shall be the day following the date of discharge or release if application is received within one year from such date of discharge or release. Otherwise, the effective date is the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). With respect to compensation based upon disability caused by VA medical treatment under 38 U.S.C. § 1151, the effective date will be the date the injury or aggravation was suffered if the claim is received within one year of that date, otherwise the effective date will be the date of the receipt of the claim for such benefits. 38 C.F.R. § 3.400(i)(1). All effective date determinations must be based upon the facts found, unless otherwise specifically provided. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary of VA must be filed for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a). Prior to March 24, 2015, informal claims were recognized. Any communication or action, indicating an intent to apply for one or more VA benefits may be considered an informal claim. 38 C.F.R. § 3.155. An informal claim must identify the benefit sought. An application is defined as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1 (p); Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999). VA must look to all communications from a claimant that may be interpreted as applications or claims, formal and informal, for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). 1. Entitlement to an effective date prior to February 25, 2011 for the grant of compensation under 38 U.S.C. § 1151 for right knee residuals status post total knee replacement. The Veteran contends that an effective date prior to February 25, 2011 is warranted for the award of compensation under 38 U.S.C. § 1151 for right knee residuals status post total knee replacement. At the outset, the Veteran's claim for compensation under 38 U.S.C. § 1151 was received on February 25, 2011. On September 30, 2009, the Veteran underwent a right total knee replacement. However, following this original procedure, the Veteran developed symptoms of right knee instability. On January 10, 2011, the Veteran underwent a revision of the right total knee replacement. It is the January 10, 2011 revision, not the September 30, 2009 total knee replacement, that formed the basis for the Veteran's claim for compensation under 38 U.S.C. § 1151. In this regard, the award of compensation under 38 U.S.C. § 1151 for right knee residuals status post total knee replacement by the November 2016 rating decision was justified principally by a March 2015 private medical opinion by Dr. Stolarski and an October 2016 VA opinion concurring "completely" with the March 2015 private opinion. In the March 2015 private opinion, Dr. Stolarski identified a "deviation of the standard of care" regarding the January 10, 2011 revision. Specifically, Dr. Stolarski noted that, in revising the femoral component of the knee prosthetic, the revisionist placed a 22.5 millimeter polyethylene bearing between the femoral and tibial components of the prosthetic, when the average thickness of the polyethylene bearing used in a primary knee replacement prosthetic is "10-12 [millimeters]." As noted by Dr. Stolarski, this resulted in "patella baja" or an abnormally low-lying patella which caused continued instability and necessitated another knee surgery in March 2014. See Dr. Stolarski, March 2015 private medical opinion; see also October 2016 VA opinion. As noted above, the effective date for an award of compensation under 38 U.S.C. § 1151 is the injury or aggravation was suffered if the claim is received within one year of that date, or otherwise will be the date of claim. 38 C.F.R. § 3.400(i)(1). Here, VA has already concluded that the Veteran suffered an aggravation of a preexisting right knee disability as a result of the January 10, 2011 revision. As the aggravating event is within one year of the Veteran's February 25, 2011 claim for compensation under 38 U.S.C. § 1151, the effective date of the award must be from the January 10, 2011 date of aggravation. Accordingly, an effective date of January 10, 2011 is warranted for the award of compensation under 38 U.S.C. § 1151 for right knee residuals status post total knee replacement. However, an effective date prior to January 10, 2011 is not warranted. Specifically, no formal or informal claim for compensation under 38 U.S.C. § 1151 was received prior to the February 25, 2011 claim. Furthermore, even assuming negligence by VA related to the September 30, 2009 total knee replacement sufficient to warrant compensation under 38 U.S.C. § 1151, the September 30, 2009 procedure occurred more than one year prior to the February 25, 2011 claim, which would result in a date of effective date of February 25, 2011. 38 C.F.R. § 3.400(i)(1). Therefore, January 10, 2011 is the earliest effective date available for the grant of compensation under 38 U.S.C. § 1151. 2. Entitlement to an effective date prior to October 10, 2012 for the grant of service connection for thoracolumbar IVDS with degenerative arthritis of the spine and spinal stenosis associated with right knee residuals status post total knee replacement. The Veteran contends that an effective date prior to October 10, 2012 is warranted for the grant of service connection for his low back disability. On October 10, 2012, VA received an informal claim for service connection for a low back disability as secondary to the Veteran's right knee residuals status post total knee replacement. See Veteran statement dated October 10, 2012. Ultimately, the November 2016 rating decision granted service connection for the low back disability, assigning a 10 percent initial disability rating effective from October 10, 2012, the date that the Veteran's informal claim for service connection for a low back disability was received. There is no formal or informal claim dated prior to October 10, 2012 that evinces intent to apply for service connection for a low back disability. Notably, the initial February 25, 2011 claim for compensation under 38 U.S.C. § 1151 identifies only the right knee disability. Similarly, a December 1, 2011 statement evinces intent to apply for service connection for a left elbow disability, but not for the low back disability. In light of the above, an effective date prior to October 10, 2012 for the award of service connection for the low back disability is not warranted. 3. Entitlement to an effective date prior to April 3, 2014 for the grant of service connection for left knee degenerative joint disease associated with right knee residuals status post total knee replacement. 4. Entitlement to an effective date prior to April 3, 2014 for the grant of service connection for unspecified depressive disorder with unspecified anxiety disorder associated with right knee residuals status post total knee replacement. The Veteran contends that an effective date prior to April 3, 2014 is warranted for the grants of service connection for left knee degenerative joint disease status post total right knee replacement and the unspecified depressive disorder with anxiety disorder. On April 3, 2014, VA received informal claims for service connection for a left knee disability and psychiatric disorders as secondary to the Veteran's right knee residuals status post total knee replacement. See correspondence from Veteran's representative dated April 3, 2014. Ultimately, the November 2016 rating decision granted service connection for the left knee disability and the psychiatric disorders, and assigned initial disability ratings of 10 percent and 70 percent, respectively, both effective from April 3, 2014. There is no formal or informal claim dated prior to April 3, 2014 that that evinces intent to apply for service connection for a left knee disability and/or a psychiatric disorder. None of the documents identified above, to include the February 25, 2011 initial claim for compensation under 38 U.S.C. § 1151, the December 10, 2012 informal claim for service connection for a left elbow disability, or the October 10, 2012 informal claim for a low back and bilateral hip disabilities, evinces intent to apply for service connection for a left knee disability and/or a psychiatric disorder. Accordingly, an effective date prior to April 3, 2014 for the grants of service connection for a left knee disability and a psychiatric disorder is not warranted. Service Connection 5. Entitlement to service connection for a right hip disability associated with right knee residuals status post total knee replacement. 6. Entitlement to service connection for a left hip disability associated with right knee residuals status post total knee replacement. The Veteran seeks service connection for right and left hip disabilities, claimed as proximately due or aggravated by the service-connected right knee residuals status post total knee replacement. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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). An injury or aggravation compensated under 38 U.S.C. § 1151 is treated as service-connected for VA purposes. Service connection for a claimed disability may be established on a secondary basis if that disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection as secondary to a service-connected disability requires a current disability that was either caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a). Regarding aggravation, 38 C.F.R. § 3.310(b) provides that any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service connected. In reaching this determination as to aggravation of a nonservice-connected disability, consideration is required as to the baseline level of severity of the nonservice-connected disease or injury (prior to the onset of aggravation by service-connected condition), in comparison to the current level of severity of the nonservice-connected disease or injury. The Veteran has competently reported bilateral hip pain, and there is no reason to doubt these credible assertions. However, he has not received a diagnosis for either the right or left hip. Nonetheless, during the period on appeal, the Federal Circuit held in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) that "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and moreover, that "pain alone can serve as a functional impairment and therefore qualify as a disability." Saunders, 886 F.3d at 1364. A Veteran-submitted November 2015 disability benefits questionnaire (DBQ) describes right hip pain and functional impairments including an unstable gait and difficulty standing for prolonged periods due to the combined effects of the Veteran's hip and knee disabilities. Furthermore, a September 2016 rehabilitation note recorded decreased right and left hip muscle strength in all directions of ROM. See private rehabilitation note dated September 11, 2016. The Veteran received an initial VA examination of his hips in October 2016. Although the examiner did not provide a diagnosis for either the right or left hips, range of motion (ROM) of both hips was abnormal. Specifically, flexion of the right and left hips was limited to 100 degrees. The examiner noted pain on both flexion and extension of the right and left hips. The October 2016 examiner provided no opinion regarding the etiology of the Veteran's right and left hip pain. However, in the March 2015 private medical opinion, Dr. Stolarski opined that "I am 100% certain that the disabilities [the Veteran] still has were due to the second [right knee] operation being negligently done and that the disabling effects are to right knee, right leg, hips, lower back, and left leg." Notably, all disabilities noted other than the Veteran's right and left hip pain are currently in receipt of service connection. The opinion was based on review of the Veteran's medical history, and in particular, the prognosis of the Veteran's right knee residuals status post total knee replacement. Given the above, the March 2015 private medical opinion is afforded at least some probative value as to secondary nexus. Furthermore, the Veteran's right and left hip pain results in a functional impairment of earning capacity, consistent with Saunders. In this regard, the Veteran experiences pain and decreased ROM and muscle strength in both hips. Significantly, the Veteran's abnormal gait, difficulty with prolonged standing, and need for a cane cannot be satisfactorily disassociated from the functional impairment caused by the Veteran's right and left hip pain. Accordingly, the evidence is at least evenly balanced as to whether the Veteran's right and left hip pain, which results in functional impairment of earning capacity, is proximately due to or aggravated beyond its natural progression by the service-connected right knee residuals status post total knee replacement. When the evidence is in relative equipoise, the Veteran prevails. Accordingly, service connection for right and left hip disabilities is warranted. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C. § 5107(b). When an appeal arises from the initially assigned disability rating, consideration 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). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms or differing levels of severity can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). 7. Entitlement to an initial disability rating in excess of 40 percent for the service-connected right knee residuals status post total knee replacement (excluding periods of temporary total disability). The Veteran is currently in receipt of a 100 percent disability rating from February 25, 2011 to March 1, 2012 following a revision of a right total knee replacement, a 40 percent disability rating from March 1, 2012 to March 4, 2014, a 100 percent disability rating following a right knee arthoplasty from March 4, 2014 to May 1, 2015, and a 40 percent disability rating from May 1, 2014 under 38 C.F.R. § 4.71a, Diagnostic Code 5055. Under this code, a 100 percent evaluation is assigned for one year following the implantation of the prosthesis. Thereafter, a 60 percent evaluation is assigned where there are chronic residuals consisting of severe painful motion or weakness in the affected extremity. Intermediate degrees of residual weakness, pain, or limitation of motion will be rated by analogy to Diagnostic Codes 5256 (ankylosis of the knee), 5261 (limitation of extension), or 5262 (impairment of the tibia and fibula). The minimum rating for a prosthetic replacement of the knee joint is 30 percent. Notably, compensation for the Veteran's right knee residuals status post total knee replacement was granted pursuant to 38 U.S.C. § 1151. The 40 percent disability rating for the right knee residuals status post total knee replacement reflects that the Veteran meets the criteria for the 60 percent disability rating under Diagnostic Code 5055, but the 60 percent evaluation is reduced to 40 as a result of the Veteran's preexisting 20 percent baseline evaluation. In this case, the RO determined that the baseline evaluation for the right knee was 20 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5258 for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. See November 2016 rating decision. There is no reason to disturb this finding. In this regard, VA treatment records show that, prior to his total knee replacement in 2009, the Veteran suffered from chronic pain, frequent effusion, and symptoms including "buckling" and instability in the right knee. Similarly, an October 2015 Veteran-submitted DBQ notes a history of meniscal conditions with frequent episodes of "locking," pain, and effusion into the joint. Thus, these symptoms are consistent with the baseline level of severity identified by the RO. The only disability rating available in excess of the 60 percent rating (reduced by 20 percent to 40 percent for the reasons described above), including under Diagnostic Codes 5055, 5256, 5261, and 5262, is a 100 percent rating under Diagnostic Code 5055 for one year following the implantation of a prosthesis. The Veteran has not had a qualifying surgery since 2014, and the one-year period following this surgery has already been recognized and is assigned a 100 percent rating. Accordingly, a disability rating in excess of 40 percent for the service-connected right knee residuals status post total knee replacement is not warranted. 8. Entitlement to an initial disability rating in excess of 70 percent for the service-connected unspecified depressive disorder with unspecified anxiety disorder. The Veteran seeks an initial disability rating in excess of 70 percent for the service-connected unspecified depressive disorder with unspecified anxiety disorder. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C. § 5107(b). When an appeal arises from the initially assigned disability rating, consideration 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). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms or differing levels of severity can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's unspecified depressive disorder with anxiety disorder is rated under the General Rating Formula for Mental Disorders pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9410. Under the General Rating Formula for Mental Disorders, a 50 percent rating is warranted where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9410. A 70 percent rating is prescribed for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is prescribed for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. The use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the Veteran's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In other words, under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The analysis must include a determination as to whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). Turning first to the lay of evidence of record, in an April 2015 statement, the Veteran's wife stated that "[n]early every day is another day of depression and anger and the slightest thing." In another April 2015 statement, the Veteran reported that lack of sleep due to right knee problem causes him to become "irritable and depressed." He stated further that he "no longer participate[s] in family gatherings due to pain and depression." The Veteran also experienced "stress and anxiety" regarding the possibility of subsequent knee surgeries. During a May 2015 RO hearing before a decision review officer, the Veteran reported unprovoked crying spells. Turning to the medical evidence, of record is a Veteran-submitted November 2015 disability benefits questionnaire (DBQ) completed by Dr. Lowrey, a psychiatrist. The DBQ indicates that the Veteran became "[b]itter" and "distant from others" with "[d]ecreased interactions" following his knee surgeries. The Veteran reported symptoms including anger, depression, "crying bouts ... out of nowhere," "yelling," feeling like he was "in a daze," inability to "pay attention," and sleep impairment. Symptoms noted by the examiner included depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss, flattened affect, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work-like setting, inability to establish and maintain effective relationships, impaired impulse control, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. Overall, Dr. Lowrey opined that the Veteran's unspecified depressive disorder with unspecified anxiety disorder diagnosed by Dr. Lowrey as overlapping major depressive disorder and panic disorder without agoraphobia resulted in total occupational and social impairment. The Veteran received an initial VA examination for his unspecified depressive disorder with unspecified anxiety disorder in November 2016. During the examination, the Veteran reported symptoms of depression, decreased sleep, anhedonia, low energy, low motivation, poor concentration, and feelings of hopelessness and helplessness. He also indicated experiencing "constant worries" about aspects of his repeated surgeries, recovery from those surgeries, and his physical limitations. The Veteran also reported "angry ruminations" and irritability. Following his surgeries, he became "withdrawn," "avoidant," and began to "isolate himself." The examiner recorded symptoms of depressed mood, anxiety, panic attacks that occur weekly or less often, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss, flattened affect, and disturbances of motivation and mood. During the examination, the Veteran was adequately groomed and dressed as well as alert and oriented. Affect was "dysphoric" and the Veteran experienced crying spells during the examination. Thought processes were "goal directed" and there was no evidence of suicidal or homicidal ideation or psychotic features. Overall, the examiner opined that the Veteran's unspecified depressive disorder with unspecified anxiety disorder resulted in occupational and social impairment due to mild or transient symptoms which decreases work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. Notes from the Veteran's VA psychiatric visits indicate that the Veteran has denied suicidal and homicidal ideation, delusions, and hallucinations throughout the period on appeal. Furthermore, mental status examinations have revealed no deficiencies in orientation or judgment, and the Veteran has consistently appeared well-groomed at VA visits. Based on the foregoing, a disability rating in excess of 70 percent for the service-connected unspecified depressive disorder with unspecified anxiety disorder is not warranted. First, the Veteran has consistently denied suicidal and homicidal ideation during the period on appeal. Next, although the Veteran experiences outbursts of anger and problems controlling his emotions, there is no evidence that his impaired impulse control has turned physical and/or resulted in danger to others; as such, the Veteran's impaired impulse control more closely approximates the 70 percent rating criteria. Furthermore, although Dr. Lowrey noted neglect of personal appearance and hygiene and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene, as symptoms of the Veteran's psychiatric disability, there is no further evidence to support these findings and, indeed, the Veteran's consistently well-groomed appearance at VA facilities weighs in the opposite direction. Moreover, with regard to intermittent inability to perform activities of daily living, Dr. Lowrey's report indicates that the Veteran's inability to perform certain activities of daily living due to his physical disabilities is a cause, rather than a symptom, of the Veteran's psychiatric disability. Specifically, Dr. Lowrey listed "lack of ability to do most anything" and inability to maintain the household under the "Sentinel Events (other than stressors)" portion of the DBQ ordinarily used to explain the etiology of a psychiatric disability. In light of the above, and given that the November 2016 examiner did not record intermittent inability to perform activities of daily living as a symptom of the psychiatric disability, the Veteran's symptoms do not more closely approximate intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. Similarly, there is no evidence of any of the following symptoms during the period on appeal: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. Finally, the Veteran's remaining symptoms, which include depressed mood, anxiety, panic attacks that occur weekly or less often, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work-like setting, and inability to establish and maintain effective relationships, more nearly approximate the criteria for the 70 percent rating and below. Notably, the Veteran is married and has conducted himself appropriately throughout VA treatment and during the examinations of record. Treatment providers have found the Veteran to be articulate, logical, and thoughtful in response to questions. He has remained respectful and responsive to treatment providers throughout the course of his treatment. Accordingly, total occupational and social impairment is not demonstrated. There is no evidence received prior to the May 2018 RAMP opt-in election that shows that the Veteran's unspecified depressive disorder with unspecified anxiety disorder worsened following the November 2016 examination. Finally, in a November 2016 correspondence, in light of the differences between the November 2015 DBQ by Dr. Lowrey and the November 2016 VA examination report, the Veteran's representative contended that "if for any reason the VA feels that Dr. Lowrey's DBQ report should be ignored or discounted, we ask the VA to comply with its duty to assist the veteran in proper claim development." The Veteran's representative, citing Savage v. Shinseki, 24 Vet. App. 259 (2011), asserted that VA's duty-to-assist includes seeking "clarification of private or VA exams necessary to proper claim development" or otherwise explain why such clarification is unnecessary. In this case, review of the November 2015 DBQ by Dr. Lowrey reveals no ambiguities requiring further clarification. Similarly, the findings of the November 2015 VA examiner were unequivocal. Furthermore, the VA examination is adequate to support a decision on the claim; specifically, the examiner took extensive statements from the Veteran, reviewed the claims file, and provided all necessary findings in the examination report. Notably, the VA examiner's findings were more consistent with the Veteran's behavior and observations indicated in the outpatient and inpatient treatment records than were the findings of Dr. Lowrey. No clarification or additional development is required simply because the findings of the Dr. Lowrey and the VA examiner diverge. Significantly, the Board is empowered to weigh the probative value of evidence and has done so in this case. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In light of the above, remand for further clarification regarding either the November 2015 DBQ or November 2016 VA examination is unwarranted. REASONS FOR REMAND 1. Entitlement to an initial disability rating in excess of 10 percent for the service-connected thoracolumbar IVDS with degenerative arthritis of the spine and spinal stenosis. The Veteran last received a VA examination for his thoracolumbar IVDS with degenerative arthritis of the spine and spinal stenosis in October 2016. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion (ROM) testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with ROM measurements of the opposite undamaged joint." Initially, the October 2016 VA examination report does not include ROM testing for both active and passive motion, and on both weight-bearing and nonweight-bearing. As such, the October 2016 examination does not comply with Correia. This constitutes a pre-decisional duty-to-assist error requiring remand. Furthermore, with regard to additional functional loss due to repeated use over time as a result of pain, weakness, fatiguability, and/or incoordination, the October 2016 examiner stated that she was unable to estimate additional functional loss following repeated use over time due to inability to observe the Veteran under those conditions. This rationale is insufficient to support the examiner's conclusion of inability to provide an opinion regarding additional functional loss over time. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). As such, this also constitutes a pre-decisional duty-to-assist error requiring remand. 2. Entitlement to an initial disability rating in excess of 10 percent for the service-connected left knee degenerative joint disease. During the period on appeal, the Veteran received an initial VA examination for his left knee in October 2016. However, the October 2016 VA examination does not comply with Correia. Furthermore, with regard to additional functional loss due to repeated use over time as a result of pain, weakness, fatiguability, and/or incoordination, the October 2016 examiner stated that she was unable to estimate additional functional loss following repeated use over time due to inability to observe the Veteran under those conditions. Again, this rationale is insufficient to support the examiner's conclusion of inability to provide an opinion regarding additional functional loss over time. Sharp, 29 Vet. App. at 33. These are pre-decisional duty-to-assists errors requiring remand. Furthermore, the RO appears to have completed an examination for the right and left knees in March 2021. However, given that this evidence was received following the May 2018 opt-in and was not submitted by the Veteran during the relevant 90-day evidentiary window, the Board may not consider the results from this examination. In any case, on remand, the RO should ensure that the pre-decisional duty-to-assist errors identified by this decision have been cured. 3. Entitlement to a TDIU due to service-connected disabilities for the period on appeal prior to April 3, 2014. 4. Entitlement to SMC at the housebound rate for the period on appeal prior to April 3, 2014 and for the period on appeal from May 1, 2015. The issues of entitlement to a TDIU for the period on appeal prior to April 3, 2014 and entitlement to SMC at the housebound rate for the period on appeal prior to April 3, 2014 and for the period on appeal from May 1, 2015 are inextricably intertwined with the issues of increased ratings for the thoracolumbar IVDS with degenerative arthritis of the spine and spinal stenosis and left knee degenerative joint disease. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, adjudicating of the TDIU and SMC claims must be deferred pending development of the increased rating claims on appeal. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA orthopedic examination to determine the current nature and severity of his service-connected thoracolumbar IVDS with degenerative arthritis of the spine and spinal stenosis and left knee degenerative joint disease. The claims file, including a copy of this Remand, should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. Furthermore, the examiner should identify all left knee and low back pathology found to be present. The examiner should conduct all necessary testing to make this assessment, to include imaging studies and range of motion studies. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion; however, in providing the requested opinion, the clinician should consider the Veteran's reported symptoms, including the progression and severity of his reported symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms are inconsistent with the nature of the service-connected disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Small, Attorney Advisor 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.