Citation Nr: 21071641 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 09-18 227 DATE: December 1, 2021 ORDER From October 1, 2010 to April 3, 2019, entitlement to an evaluation in excess of 30 percent for service-connected left total knee replacement is denied. On and after April 3, 2019, entitlement to an evaluation of 60 percent, but no higher, for service-connected left total knee replacement is granted. Entitlement to an evaluation in excess of 10 percent for service-connected cholecystectomy is denied. REMANDED Prior to February 18, 2021, entitlement to an evaluation in excess of 10 percent for service-connected right knee posttraumatic arthritis is remanded. On and after February 18, 2021, entitlement to an evaluation in excess of 30 percent for service-connected right knee posttraumatic arthritis is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. From October 1, 2010 to April 3, 2019, the Veteran's left total knee replacement is not manifested by severe painful motion or weakness. 2. On and after April 3, 2019, the Veteran's left total knee replacement is manifested by severe painful motion or weakness. 3. The Veteran's service-connected cholecystectomy is not manifested by severe symptoms. CONCLUSIONS OF LAW 1. Prior to April 3, 2019, the criteria for a rating in excess of 30 percent for left total knee replacement have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5055. 2. On and after April 3, 2019, the criteria for a rating in excess of 60 percent, but no higher, for left total knee replacement have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5055. 3. The criteria for a disability rating in excess of 10 percent for service-connected cholecystectomy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.114, Diagnostic Code 7318. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1975 to June 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. In July 2012, the Veteran had a hearing with a VLJ who is no longer with the Board. See Hearing Testimony (July 2012). In a December 2018 letter, the Veteran was informed that the VLJ who conducted the July 2012 hearing was no longer available. See Hearing Related (December 2018). He subsequently elected to have an additional hearing before another VLJ. See Hearing Related (January 2019). In April 2019, the Veteran testified before the undersigned VLJ. A hearing transcript is associated with the record. See Hearing Transcript at 3 (April 2019). This appeal has a lengthy procedural history. The claims on appeal were originally addressed in a February 2008 rating decision. See Rating Decision (February 2008). As noted in the prior February 2014 and October 2020 Board remands, several issues were withdrawn and denied. See BVA Decision (February 2014); BVA Decision (October 2020). Notably, the issues of increased evaluations under Diagnostic Code 5257 for service-connected right and left knee instability were withdrawn; thus, those evaluations are not considered herein. See BVA Decision (February 2014). Additionally, in a September 2021 rating decision, the RO awarded service connection for a left knee surgical scar, effective in August 2009 or the entire appeal period. See Rating Decision (September 2021). Thus, the propriety of a separate evaluation for a left knee scar is also not considered herein. See Rating Decision (September 2021). The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. The issues on appeal were remanded in October 2020. See BVA Decision (October 2020). The Board directed that the following actions be taken: request the Veteran's Social Security Administration medical records; obtain VA treatment records dated from 2019 to the present; obtain VA examinations for the knee disabilities, that addressed active motion, passive motion, pain with weight-bearing and non-weight-bearing, and flare-ups; and obtain information from the Veteran regarding his employment and education history and impacts of his knee disabilities on his ability to work; and to obtain retrospective findings regarding prior VA knee examinations. See BVA Decision (October 2020). The Board finds there has been substantial compliance with its prior remand. The SSA notified VA that the records had been destroyed. See Correspondence (December 2020). VA treatment records were obtained in October 2020, February 2021, and August 2021. See CAPRI (October 2020); CAPRI (February 2021); CAPRI (August 2021). Finally, VA examinations and retrospective opinions that met the stated criteria were obtained in February and May 2021. See C&P Exam (February 2021); C&P Exam (May 2021). Accordingly, the Board may proceed to adjudicate the issues on appeal. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 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. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. 1. Prior to April 3, 2019, entitlement to an evaluation in excess of 30 percent for service-connected left total knee replacement is denied; on and after April 3, 2019, an evaluation of 60 percent, but no higher, for service-connected left knee total replacement is granted. The Veteran contends that he is entitled to a higher evaluation for this time period, to include a separate evaluation for Osgood-Schlatter's disease and for a medial meniscus removal. See 21-4138 Statement in Support of Claim (April 2016). He asserted that he has severe pain by the end of the day. See Hearing Transcript (August 2019). He also reported weakness, hyperextension, give-way or instability. See Hearing Transcript (August 2019). The Board finds that prior to April 3, 2019, an evaluation in excess of 30 percent is not warranted as the left total knee replacement was not manifested by intermediate degrees of residual weakness, pain or limitation of motion, or chronic residuals consisting of severe painful motion or weakness. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, Diagnostic Code 5055. The Board also finds that on and after April 3, 2019, a 60 percent evaluation is warranted as the left total knee replacement manifested in severe painful motion. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, Diagnostic Code 5055. Knee disabilities are generally rated under Diagnostic Codes (DCs) 5256 through 5263 for knee symptoms. However, a separate, specific evaluation is assigned where there has been a total knee replacement. Such an evaluation is assigned in this appeal after the Veteran's 2009 surgery. For this time period, the left knee total replacement is evaluated as 30 percent disabling, which is the minimum rating allowed. 38 C.F.R. § 4.71a, DC 5055. Intermediate degrees of residual weakness, pain or limitation of motion are rated by analogy to diagnostic codes 5256, 5261, or 5262. A 60 percent evaluation is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. 38 C.F.R. § 4.71a, Diagnostic Code 5055. For 1 year following implantation of prosthesis, a 100 percent evaluation is assigned. Although this diagnostic code was revised in February 2021, it is not pertinent to this claim. See 38 C.F.R. § 4.71a, DC 5055 Note (2021). For ankylosis of the knee, a 60 percent evaluation is assigned for extremely unfavorable, in flexion at an angle of 45 degrees or more. A 50 percent evaluation is assigned for flexion between 20 and 45 degrees. A 40 percent evaluation is assigned for flexion between 10 and 20 degrees. See 38 C.F.R. § 4.71a, DC 5256. For limitation of extension, 40 and 50 percent evaluations are assigned for extension limited to 30, and 45 degrees, respectively. See 38 C.F.R. § 4.71a, DC 5261. For impairment of the tibia and fibula, a 40 percent evaluation is assigned for nonunion with loose motion, requiring brace. See 38 C.F.R. § 4.71a, DC 5262. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158 (2016). VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In a June 2010 VA examination, there was left knee range of motion from zero to 125 degrees. There was objective evidence of pain with active motion. See VA Examination (June 2010). A February 2021 addendum opinion was provided upon a review of the claims file. The examiner opined that range of motion due to pain with weightbearing would be 120 degrees of flexion and extension remained normal. With non-weight bearing, the examiner opined that there would be no change. See C&P Exam (February 2021). In 2010 VA records, the Veteran reported chronic left knee pain. See CAPRI (May 2012). In February 2010, there was no pain, 5 degrees of extension, and 110 degrees of flexion. Motor strength was 5/5. See CAPRI (May 2012). In February 2011, the Veteran reported constant left knee pain that was dull but turned into a sharp pain. See CAPRI (May 2011). In August 2011, there was mild left knee pain, good walking tolerance, and no swelling, numbness, or tingling. See CAPRI (May 2012). In an August 2011 VA examination, the Veteran reported that after 5 to 30 minutes, he has problems with his knee. See VA Examination (August 2011). He takes prescription pain medication for knee relief. He stated his left knee is much improved after his surgery. The Veteran reported giveway, constant pain, stiffness, weakness, and decreased speed of joint motion, but did not report deformity, instability, incoordination, episodes of dislocation or subluxation, locking, effusion, symptoms or inflammation, or flare-ups. He was able to stand for 15 to 30 minutes and was able to walk 1 to 3 miles. There was intermittent, occasional use of a cane. Upon physical examination, there was pain at rest, crepitation, clicks or snaps, grinding, and tenderness. There was no mass behind the knee, no patellar or meniscus abnormality, and no bumps consistent with Osgood-Schlatter's disease. Flexion was to 120 degrees and extension was to zero degrees, both with pain on active motion. There was no joint ankylosis. The examiner found significant effects on occupational activities due to decreased mobility, problems with lifting and carrying, lack of stamina, weakness or fatigue, decreased strength of the lower extremity, and pain. See VA Examination (August 2011). In a February 2021 addendum opinion, provided upon a review of the claims file, the examiner found that there would be no change of range of motion with weightbearing and non-weight-bearing. See C&P Exam (February 2021). In January 2013 VA records, there was left knee pain and crepitus. See CAPRI (February 2016). In a June 2013 VA record, the left knee was doing well. There was mild occasional aching sensation over the patella tendon. He ambulated with a cane for stability due to back pain. There was zero degrees of extension and 110 degrees of flexion. There was 5/5 muscle strength. See CAPRI (February 2016). An April 2015 VA examination was conducted. There was total knee replacement, still with pain, and worse with weight bearing activities. The Veteran did not report flare-ups. There was flexion to 110 degrees and extension to 10 degrees with pain. There was no pain with weight bearing. There was objective evidence of crepitus. There was no additional functional loss or range of motion after repetitive use. The examiner found that they could not provide an estimate without mere speculation of repetitive use over time. There was 5/5 strength and no atrophy. The examiner found there was no history of recurrent effusion. The examiner also noted there was no other tibial or fibular impairment. The examiner found there was no severe pain or weakness. See C&P Exam (April 2015). A February 2021 addendum opinion was provided upon a review of the claims file. The examiner opined that there would be no additional range of motion lost due to pain with weight-bearing or non-weight-bearing. See C&P Exam (February 2021). In an August 2015 VA treatment record, the left knee was clicking and sometimes grinding. See CAPRI (February 2016). In a July 2019 VA record, a left knee x-ray showed left knee replacement with good positioning of prosthesis, and no findings to indicate loosening or infection. See CAPRI (February 2021). At the April 3, 2019 Board hearing, the Veteran testified that by the end of the day, there was severe pain of the left knee. See Hearing Transcript (August 2019). He also reported weakness of the knee. See Hearing Transcript (August 2019). In a December 2020 statement, the Veteran noted that the more he used the knee, the more pain and swelling increased. See VA 21-4138 Statement in Support of Claim (December 2020). A February 2021 VA examination was conducted. The Veteran reported three series of knee braces to prevent falls. The pain was 4/10 sharp, dull, and swelling. He reported left knee flare-ups and stated that hitting the knee the wrong way will set it off and cause more pain and sometimes more swelling. This will happen twice a week with 6/10 sharp pain and lasts overnight until the swelling goes down. The Veteran also reported weakness by the end of the day with major loss of balance. Upon examination there was zero degrees of extension and 105 degrees of flexion, with pain. There was crepitus and pain to palpation of the inner knee and with weightbearing. There was pain with passive range of motion and with non-weight-bearing. Upon repetitive use testing, there was no additional loss of function or range of motion. With repeated use over time, and with flare-ups, there was pain, weakness, fatigability or incoordination that significantly limited functional ability; flexion was to 100 degrees and extension was to zero degrees. There was 5/5 muscle strength and no ankylosis. There was no other tibial or fibular impairment. The examiner found there were intermediate degrees of residual weakness, pain, or limitation of motion, but not chronic residuals consisting of severe painful motion or weakness. See C&P Exam (February 2021). A May 2021 VA examination was conducted. See C&P Exam (May 2021). The Veteran reported flare-ups with pain and stiffness that can get so bad he has difficulty standing, walking for long distances, walking downstairs, squatting, and difficulty driving and unable to extend knees fully. During flare-ups, his pain was 10/10. The examiner found there was no history of frequent effusion of the knee. There was 5 degrees of extension or 110 degrees of flexion, with pain. Passive range of motion is the same as active range of motion. There was no objective evidence of crepitus, or of tenderness or pain on palpation of the joints. Upon repetitive motion, there was flexion to 105 degrees and extension to 10 degrees with pain. With repetitive use over time and due to pain, there is flexion to 100 degrees and 15 degrees of extension. With flare-ups, there was flexion to 95 degrees and 20 degrees of extension. There were no additional factors contributing to disability, including instability of station, weakened movement, swelling, deformity, etc. There was no ankylosis or muscle atrophy. Upon testing, there was no tibial or fibular impairment. The examiner found there were chronic residuals consisting of severe painful motion or weakness. See C&P Exam (May 2021). Here, prior to April 3, 2019, the Board finds that the evidence of record does not support a finding of severe painful motion or weakness. The Veteran has provided competent and credible lay statements of left knee pain throughout the appeal period. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Additionally, at the June 2010 VA examination, there was objective evidence of pain with active motion. In August 2011 VA treatment records, the pain was characterized as mild. At the August 2011 VA examination, the Veteran reported constant pain, but noted that it was 80% less painful since his knee replacement. He was able to stand for 15 to 30 minutes and was able to walk 1 to 3 miles. At the April 2015 VA examination, the Veteran reported left knee pain was worse with weight-bearing activities and with squatting. The examiner found there was no severe pain. In VA treatment records dated in 2010 and 2013, and at the April 2015 VA examination, there was 5/5 muscle strength. These findings do not more nearly approximate severe painful motion or weakness as full strength was shown throughout and pain, although present, was not noted to be severe. Thus, prior to April 3, 2019, the evidence does not demonstrate severe painful motion or weakness. Also prior to April 3, 2019, Diagnostic Codes 5256, 5261, and 5262 do not provide for higher evaluations. The VA examinations and VA treatment records demonstrate substantial range of motion; thus, there was no ankylosis. See 38 C.F.R. § 4.71a, DC 5256. Additionally, extension was not limited to 30 or 45 degrees and there was no impairment of the tibia and fibula, including nonunion. See 38 C.F.R. § 4.71a, DCs 5261, 5262. Rather, at the 2010, 2011, and 2015 VA examinations, extension was to zero to ten degrees with pain. Even considering additional functional loss, there was full muscle strength, the Veteran did not report flareups, and weightbearing did not further decrease limitation of extension. At the 2015 VA examination, there was no additional limitation of function or range of motion upon repetitive use. At the June 2010 VA examination, weightbearing extension continued to be normal even with evidence of pain on motion. In 2011, the Veteran was able to walk 1 to 3 miles and his extension was to 5 degrees, even with weightbearing. There was intermittent, occasional use of a cane. The 2015 VA examiner found there was no other tibia or fibular impairment. Accordingly, no higher evaluation based on intermediate degrees of impairment is for assignment. However, resolving doubt in favor of the Veteran, as of April 3, 2019, the Board finds that a 60 percent evaluation is for assignment as the evidence of record supports a finding of severe painful motion or weakness. Notably, the May 2021 VA examiner determined that the Veteran's left knee total replacement caused severe painful motion. Although the February 2021 VA examiner found there was no severe painful motion or weakness, the May 2021 finding was made only three months later and was the basis for the increased 60 percent evaluation as of that date. See Rating Decision (September 2021). As no incident appears to have occurred in the three months between the February 2021 and May 2021 VA examinations, and the Veteran's complaints appear similar at the two examinations, the evidence is interpreted to support a finding of severe pain in February 2021. Further, at the April 3, 2019 Board hearing, the Veteran testified that by the end of the day, there was severe pain and weakness of the left knee. This was the first time the Veteran characterized his pain as severe, thus indicating that his knee had worsened since the 2015 VA examination. At the February 2021 VA examination, the Veteran also reported weakness by the end of the day and major loss of balance. The examiner found there was pain with non-weight-bearing, weight-bearing, and passive and active range of motion. There was increased pain with repetitive use, repetitive use over time, and with flare-ups. This lay and objective evidence supports that upon use, but also at rest and without weight-bearing, there was severe pain. Accordingly, and resolving all doubt in favor of the Veteran, a 60 percent evaluation is for assignment as of April 3, 2019. Other than the one-year period of 100 percent, a 60 percent evaluation is the maximum rating permitted for the left knee. Accordingly, no higher evaluation is for assignment. Additionally, although in general, all potentially applicable diagnostic codes must be considered, see Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991), where there is a diagnostic code that addresses the particular service-connected disability, to evaluate that disability under another code would constitute impermissible rating by analogy. Copeland v. McDonald, 27 Vet. App. 333, 338 (2017). In light of Copeland, the Board rates this disability only under the DC for total knee replacement and for the diagnostic codes referenced therein. Thus, although the Veteran requested separate evaluations for Osgood-Schlatter's disease and for a medial meniscus removal, such evaluations are not permissible. Accordingly, no higher or separate evaluation is for assignment under alternative codes. 2. On and after May 24, 2021, entitlement to an evaluation in excess of 60 percent for service-connected left knee total replacement is denied. The Veteran contends that he is entitled to a higher evaluation for this time period, to include a separate evaluation for Osgood-Schlatter's disease and for a medial meniscus removal. See 21-4138 Statement in Support of Claim (April 2016). He asserted that he has severe pain by the end of the day. See Hearing Transcript (August 2019). He also reported weakness, hyperextension, give-way or instability. See Hearing Transcript (August 2019). The Board finds that an increased evaluation is not warranted as this is the maximum permitted for residuals of a total knee replacement. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, Diagnostic Code 5055. For this time period, the left knee total replacement is evaluated as 60 percent disabling, which reflects chronic residuals consisting of severe painful motion or weakness in the affected extremity. 38 C.F.R. § 4.71a, Diagnostic Code 5055. For 1 year following implantation of prosthesis, a 100 percent evaluation is assigned. Although this diagnostic code was revised in February 2021, it is not pertinent to this claim. See DC 5055 Note (2021). Other than the one-year period of 100 percent, a 60 percent evaluation is the maximum rating permitted. Although this diagnostic code was revised in February 2021, it is not pertinent to this claim. See 38 C.F.R. § 4.71a, DC 5055 Note (2021). Accordingly, no higher evaluation is for assignment. Additionally, although in general, all potentially applicable diagnostic codes must be considered, see Schafrath, 1 Vet. App. at 592-93, where there is a diagnostic code that addresses the particular service-connected disability, to evaluate that disability under another code would constitute impermissible rating by analogy. Copeland, 27 Vet. App. at 338. In light of Copeland, the Board rates this disability only under the DC for total knee replacement. Thus, although the Veteran requested separate evaluations for Osgood-Schlatter's disease and for a medial meniscus removal, such evaluations are not permissible. Accordingly, no higher or separate evaluation is for assignment under alternative codes. 3. Entitlement to an evaluation in excess of 10 percent for service-connected cholecystectomy is denied. The Veteran contends that he is entitled to an increased evaluation due to abdominal soreness. See Hearing Transcript (April 2019). He contends that his cholecystectomy has caused sphincter of Oddi malfunction which causes cramping in the area of the absent gallbladder. See VA 21-4138 Statement in Support of Claim (December 2020); VA 21-4138 Statement in Support of Claim (October 2018); VA 21-4138 Statement in Support of Claim (April 2016). The Board finds that the criteria for a rating in excess of 10 percent for service-connected cholecystectomy are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.114, DC 7318. The evidence of record does not demonstrate severe symptoms after removal of the gallbladder. Initially, the Board notes that the diagnoses of gastroesophageal reflux disease (GERD), hernias, and sphincter of Oddi dysfunction are not considered herein as part of the service-connected disability. In May 2019, the RO denied service connection for GERD, hiatal hernia, inguinal hernia, and sphincter of Oddi dysfunction. See Rating Decision (May 2019). A higher-level review reached the same conclusions. See Rating Decision (November 2019). Although the Veteran appealed these denials to the Board, they are not currently part of the service-connected disability and thus are not used to rate the severity thereof. The Veteran's 10 percent evaluation reflects removal of the gall bladder, with mild symptoms. See 38 C.F.R. § 4.114, DC 7318. A maximum 30 percent evaluation is assigned for removal of the gall bladder with severe symptoms. See 38 C.F.R. § 4.114, DC 7318. In a November 2007 VA gall bladder examination, the examiner noted post-operative symptoms. There was colic or other abdominal pain that was daily and moderate. There was no distension, nausea, vomiting, or jaundice. There were zero episodes of colic or other abdominal pain, distention, nausea, or vomiting in the past 12-month period. Upon examination, there was a normal abdominal examination and no evidence of malnutrition. An echogram noted cholecystectomy or absence of the gallbladder. See VA Examination (November 2007). At a June 2010 VA examination, the Veteran reported post-operative symptoms, including weekly, moderate colic or other abdominal pain. There was weekly moderate distension. There was no nausea, vomiting, or jaundice. There had been 3 episodes of colic or other abdominal pain, distension, nausea, or vomiting in the last 12-month period that lasted one day. See VA Examination (June 2010). At an August 2011 VA examination, the Veteran reported that since his last examination, his symptoms were unchanged. He reported postoperative symptoms of chronic tenderness and discomfort in the right upper quadrant. There was daily mild colic or abdominal pain. There was no distension, vomiting, or jaundice. There was mild nausea that lasted 3 to 4 days. There were no episodes of colic or other abdominal pain, distention, nausea, or vomiting in the past 12-month period. The abdominal examination was abnormal, because there was abdominal tenderness of the right mid abdomen. The diagnosis was residuals of cholecystectomy to include abdominal pain and nausea. See VA Examination (August 2011). An April 2015 VA examination was conducted. The Veteran reported persistent right upper quadrant pain. The examiner noted that review of previous physician visits does not show any evidence of complications from this except possibly mild pain and abdominal tenderness. There was no pain with meals. Continuous medication was not required for control of the conditions. There did not appear to be any other gall bladder conditions or residuals of treatment. See C&P Exam (April 2015). An April 2019 VA examination was conducted. The Veteran reported pain in the right upper quadrant and epigastric region. The pain typically lasts for several days to upwards of 1.5 years. He reports occasional associated nausea, and that defecation aggravates the pain. He has had constant right upper quadrant pain for the past 9 months. Continuous medication is not required to control the symptoms. The examiner noted no other symptoms. See C&P Exam (April 2019). In VA treatment records dated from 2007 through 2021, the Veteran reported chronic abdominal pain and right upper quadrant tenderness. There was no nausea, no vomiting, and the abdomen was nontender. See CAPRI (February 2016); CAPRI (March 2019); CAPRI (October 2020). An August 2021 VA record noted that a right upper quadrant ultrasound was normal. See CAPRI (August 2021). In a February 2019 VA record, there was a history of chronic abdominal pain. See CAPRI (April 2019). The Veteran reported right upper quadrant pain of his abdomen that seems to radiate along the right costal margin into his chest. The pain was quite severe at times. See CAPRI (March 2019). A CT scan of the abdomen and pelvis was non-diagnostic. See CAPRI (March 2019). The Board finds that an increased evaluation is not warranted. Here, the Veteran and the objective evidence demonstrate that there is daily or weekly, moderate, abdominal pain as a result of his cholecystectomy. The Veteran reported occasional nausea and distension, but there did not appear to be vomiting or jaundice. Although the Veteran reported severe pain, this was only in 2019, and the remainder of the appeal period, any pain was not characterized as severe. On the whole, the Board finds that these findings do not more nearly approximate severe symptoms. Additionally, although in general, all potentially applicable diagnostic codes must be considered, see Schafrath, 1 Vet. App. at 592-93, where there is a diagnostic code that addresses the particular service-connected disability, to evaluate that disability under another code would constitute impermissible rating by analogy. Copeland, 27 Vet. App. at 338. In light of Copeland, the Board rates this disability only under the DC for removal of the gallbladder. Accordingly, no higher or separate evaluation is for assignment under alternative codes; and the claim is denied. There is no doubt to resolve.38 U.S.C. § 5107(b). REASONS FOR REMAND 1. Prior to February 18, 2021, entitlement to an evaluation in excess of 10 percent, for service-connected right knee posttraumatic arthritis is remanded. 2. On and after February 18, 2021, entitlement to an evaluation in excess of 30 percent for service-connected right knee posttraumatic arthritis is remanded. The Veteran contends he is entitled to higher evaluations for his service-connected right knee posttraumatic arthritis. The Board finds that remand is warranted for the RO to determine the proper ratings prior to the Board adjudicating this issue. Procedurally, in a February 2021 rating decision, the RO assigned an increased 30 percent evaluation under the revised diagnostic code for instability, effective February 18, 2021. See Rating Decision (February 2021); 38 C.F.R. § 4.71a, Diagnostic Code 5010-5257. This was despite the presence of a separate evaluation already assigned for right knee instability. See Rating Decision (February 2021); 38 C.F.R. § 4.71a, Diagnostic Code 5257. In a September 2021 rating decision, the RO noted that it found clear and unmistakable error in the increased 30 percent evaluation and proposed to reduce that evaluation to 10 percent through May 23, 2021; this rating was properly based on limitation of extension. See Rating Decision (September 2021); 38 C.F.R. § 4.71a, Diagnostic Code 5261. The RO also increased the rating for the right knee to 30 percent, effective May 24, 2021; that rating was also based on limitation of extension. See Rating Decision (September 2021). A rating decision finalizing the proposed correction has not yet been issued; thus, the actual ratings assigned to the right knee are not yet clear. This must be done prior to the Board adjudicating the increased rating claim. 3. Entitlement to TDIU is remanded. The Veteran asserts he is unable to work due to his service-connected disabilities, including his significant right and left knee disabilities and the pain from his service-connected gallbladder removal. See Hearing Transcript (August 2019). He has also asserted that the medications he takes for these disabilities affects his ability to work. See VA 21-4138 Statement in Support of Claim (December 2020). The Board finds that remand is warranted for this issue as it is dependent on procedural matters that the RO must undertake prior to an appellate decision. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). First, the RO must determine the actual ratings assigned to right knee disability. Second, the RO must effectuate the partial grant of an increased rating of the left knee disability. When those matters are addressed, the RO must readjudicate entitlement to TDIU, to include whether medications taken for the disabilities cause unemployability. The matters are REMANDED for the following action: 1. Determine whether the change in evaluation proposed in a February 2021 rating decision regarding the right knee evaluation is to be effectuated; issue an appropriate rating decision. (Continued on the next page) 2. Effectuate this Board decision. 3. Readjudicate the issue of entitlement to TDIU, to include the effects of the Veteran's medications taken for his service-connected disabilities. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M., Counsel 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.