Citation Nr: 21040440 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 15-36 184 DATE: July 3, 2021 ORDER A higher 20 percent rating, though no greater, is granted from March 16, 2011 onward for left foot metatarsocuneiform arthritis, status post-fracture of multiple metatarsals with residuals (left foot disability). A higher 20 percent rating, though no greater, is granted from October 5, 2015 onward for consequent left foot scars. Entitlement to a rating in excess of 10 percent for a right knee disability, status post-medial meniscus repair, between March 22, 2010 and May 24, 2011, is denied. A higher 60 percent rating, though no greater, is granted from October 5, 2015 onward for the right knee disability, status post-operative total knee replacement. REMAND Entitlement to a compensable rating for bilateral hearing loss is remanded. FINDINGS OF FACT 1. From March 16, 2011 onward, the Veteran's left foot disability has manifested in moderately-severe symptoms, including pain, swelling, and functional limitations with walking and standing, especially prolonged. 2. Since October 5, 2015, he has had 3 or more painful or unstable scars associated with his left foot disability. 3. Between March 22, 2010 and May 24, 2011, his right knee disability was manifested by flexion to greater than 60 degrees, extension not limited to 5 degrees or greater, without joint effusion, symptomatic removal of semilunar cartilage, impairment of the tibia or fibula, genu recurvatum, instability, or ankylosis. 4. Since October 5, 2015, his right knee disability, status post-operative total right knee replacement, has manifested in chronic residuals consisting of severe painful motion or weakness. CONCLUSIONS OF LAW 1. The criteria are met for entitlement to a higher 20 percent rating, though no greater, for the left foot disability from March 16, 2011 onward. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5003, 5010, 5284. 2. The criteria are met for entitlement to a higher 20 percent rating, though no greater, consequent painful left foot scars from October 5, 2015 onward. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, DC 7804. 3. The criteria are not met for entitlement to a rating greater than10 percent for the right knee disability between March 22, 2010 and May 24, 2011. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5010, 5260, 5261. 4. From October 5, 2015 onward, the criteria are met for a higher 60 percent rating, though no greater, for the right knee disability, status post-operative total right knee replacement. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59. 4.71a, DC 5055. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1981 to February 2003 and was awarded, among other medals and compensation, a Combat Infantryman Badge (CIB). This appeal to the Board of Veterans' Appeals (Board/BVA) originated from a November 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), i.e., Agency of Original Jurisdiction (AOJ) granting service connection for the Veteran's left foot scars, increasing his left foot and right knee disability ratings, and denying a claim to increase his bilateral hearing loss rating. In response, he appealed all claims including for even higher ratings. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (receipt of a higher rating, but less than maximum possible rating, does not abrogate a pending appeal). The Veteran testified in support of these claims during a recent April 2021 "virtual" tele-conference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is of record. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes (DCs). 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. When evaluating the severity of a disability, it is essential the disability is considered in the context of its entire recorded history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). But if the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings and is employed for initial or established ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. In general, 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. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. According to 38 C.F.R. § 3.400(o)(2), the effective date in a claim for an increased rating may be up to one year prior to the date of receipt of the increased rating claim provided the evidence reflects a worsening of the disability during that immediately preceding year. In other words, this entitlement to a higher rating must be factually ascertainable during that immediately preceding year, and if it is the higher rating may be assigned as of that earlier date. See Harper v. Brown, 10 Vet. App. 125 (1997). See also Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010) (explaining that the legislative history of 38 U.S.C. § 5110(b)(2) was to provide Veterans a one-year "grace period" for filing a claim following an increase in severity of a service-connected disability). The law pertaining to the effective date of a VA claim for increase in disability mandates that, unless specifically provided otherwise, the effective date for the increase shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of the application. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Therefore, according to Harper, there are three possible effective dates for an increase in rating: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (the date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (i.e., the date the increase is factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)). Harper, 10 Vet. App. at 126. Thus, determining an appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine: (1) when a claim for an increased rating was received and, if possible, (2) when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2). 1. Entitlement to a rating higher than 10 percent for left foot metatarsocuneiform arthritis, status post-fracture of multiple metatarsals with residuals (left foot disability) The Veteran contends that his left foot disability warrants a rating higher than 10 percent; this rating is effective from March 16, 2011. His left foot disability is rated under hyphenated DC 5010-5284. See 38 C.F.R. § 4.27. DC 5010 is for arthritis due to trauma (i.e., post-traumatic arthritis), which, in turn, indicates to rate it as degenerative arthritis under DC 5003. And, according to DC 5003, the arthritis will be rated based on the extent it causes impairment of the affected joint which, in this instance, is the foot, thereby implicating DC 5284. DC 5284 refers to "other" foot injuries and applies to foot disabilities for which there is not already a specific DC. When a disability is specifically listed in the Rating Schedule, it may not be rated by analogy under DC 5284. See Copeland v. McDonald, 27 Vet. App. 333 (2017). Here, in-service radiology reports and the report of the Veteran's July 2011 VA examination diagnosed fractures of the second, third, and fourth metatarsals. As there is no specific DC for fractures of multiple metatarsals, use of DC 5284 is permitted. According to DC 5284, a 10 percent rating is warranted for moderate injury, a 20 percent rating for moderately severe injury, and a 30 percent rating for severe injury. Actual loss of use of the foot is rated at a maximum 40 percent. 38 C.F.R. § 4.71a, DC 5284. "Moderate," "moderately severe," and "severe," are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "moderate", "moderately severe" or "severe" by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. According to MERRIAM WEBSTER, "moderate" means "tending toward the mean or average amount or dimension." "Severe" means "of a great degree." See www.merriam-webster.com/dictionary. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Since this increased rating claim was filed in March 2011, the review period starts one year earlier so in March 2010. See Harper, 10 Vet. App. at 126. However, there are no medical records or lay statements on record addressing the severity of the Veteran's left foot disability during the several years immediately preceding receipt of his increased rating claim, indeed, at any time between his initial January 2003 VA examination and his March 16, 2011 claim for a higher rating. As such, an increase effective earlier than the date of the claim is not possible. 38 C.F.R. § 3.400. The next relevant records are both from July 2011. The first is a personal statement from the Veteran reporting that he had been advised to consider fusion surgery due to the multiple fractures of this foot. The second piece of relevant evidence is the report of his July 2011 VA examination, when he reported experiencing constant, aching, sharp pain, at a level 7/10, exacerbated by physical activity. He also reported some relief with rest and the ability to function while taking pain killers. On objective physical examination, the examiner noted left foot pain, weakness, stiffness, swelling, and fatigue while walking or standing, with painful motion and tenderness. Functional limitations were identified as only being able to stand or walk less than an hour and being unable to run or jump. That assessment resulted in a November 2011 rating decision increasing the left foot disability rating from 0 to 10 percent as of March 16, 2011, so as of the date of receipt of the claim for a higher rating for this service-connected disability. Notably, neither the rating decision or VA's notification letter to the Veteran explaining this change in rating discuss how or why his symptoms and impairment warranted a 10 percent rating for moderate disability, as opposed to an even higher 20 percent rating for moderately severe disability or an even greater 30 percent rating for severe disability. Regardless, the July 2011 VA examination is grossly consistent with later records. The Veteran's January 2012 Notice of Disagreement (NOD) asserted that shoes caused him severe pain and that he anticipated additional surgeries for his condition. He was treated for pain in December 2014, although those treatment notes reflect that he was running for exercise at the time. His October 2015 hearing request on his VA Form 9, Substantive Appeal to the Board, explained that his pain causes "incapacitating episodes." During his more recent hearing in April 2021, he testified to constant left foot pain causing reduced movement, sleep, and functionality. He was planning to undergo left foot fusion surgery before being assigned to South Korea as a Federal government employee in 2019, putting those plans temporarily on hold. As the Veteran's statements regarding factual matters of which he has first-hand knowledge are internally consistent and externally consistent with the rest of the record, the Board finds them probative (competent and credible) to the claim at hand. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Considering his persistent pain, swelling, impaired movement, functional limitations, and anticipated further corrective surgery, the Board finds that his symptoms are more consistent with a moderately-severe level of impairment and, therefore, a higher 20 percent rating. Evidence shows features of both a moderate foot injury pain controlled with medication and not preventing exercise but also those of a more severe one, including incapacitating episodes, swelling, and impaired functionality. The criteria in DC 5284 do not reference medication, therefore, the disability is to be evaluated without taking the medication treatment into consideration. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012) (if the rating criteria do not identify medication, consider the disability as if without medication, i.e., without any ameliorating effect of it). Certainly, the record supports an impairment level above moderate if the Veteran's symptoms are considered without medication. The Board accordingly finds the record supports a higher 20 percent rating for the Veteran's left foot disability, with symptoms dating back to when he filed his claim for increase, so effective from March 16, 2011. There has not been the required probative indication of entitlement to an even greater 30 percent rating since there is not the required severe symptoms and consequent functional impairment. 2. Entitlement to an initial rating higher than 10 percent for left foot scars The Veteran contends that his scars are numerous and painful enough to warrant a rating higher than 10 percent. The record shows he underwent left foot surgery in 2002, while in service, as well as prior ankle fusion before entering service that conversely is not service-connected. His left foot scar is rated under DC 7804, which evaluates scars as follows: a 10 percent rating for one or two scars that are unstable or painful; a 20 percent rating for three or four scars that are unstable or painful; and a 30 percent rating for five or more scars that are unstable or painful. See 38 C.F.R. § 4.118. Note (1) defines an unstable scar as one for any reason involving frequent loss of covering of skin over the scar. Note (2) provides that, if one or more scars are both unstable and painful, 10 percent should be added to the evaluation based on the total number of unstable or painful scars. Note (3) explains that scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under DC 7804, when applicable. The Veteran's current rating is based on a July 2011 VA examination that found two scars, one related to his 2002 left foot surgery in service and one related to his May 2011 right knee replacement. Only the left foot scar was painful on examination. His disability accordingly was rated for a single, painful scar, at 10 percent under DC 7804. The Veteran first described 3 or more painful scars in a statement with his October 2015 VA Form 9. During his more recent April 2021 hearing, he testified to at least three painful scars, calling one blistered. He provided photographs of his left foot showing 3 scars, consistent with his hearing testimony. One site appears open, red, and irritated, situated at the center of a scar on top of his left foot, with redness extending down this foot to another, parallel scar. The last one wraps around his heel. His testimony and these images are consistent with a March 2011 treatment note describing a left foot lesion on the dorsal aspect of his left foot. Notably, the Veteran also testified regarding his left ankle scar, visible in photographs, from surgical fixation of that joint. He is not service connected for his left ankle or his left ankle scar. Therefore, that injury and consequent scar cannot provide grounds for increasing the rating for his left foot scar since not associated with his service-connected left foot disability. See, e.g., Mittleider v. West, 11 Vet. App. 181, 182 (1998). That notwithstanding, considering his hearing testimony under oath, medical evidence, and the photographs, the Board finds sufficient evidence that the Veteran has three painful or unstable scars on his left foot. However, and despite the March 2011 treatment note mentioning one lesion, the first evidence justifying an increased rating is on his Form 9, received by VA on October 5, 2015. Thus, this marks the effective date of this higher rating. 38 C.F.R. § 3.400(o)(2); Harper, 10 Vet. App. at 126. The Veteran has not alleged, and the record does not reflect, evidence justifying an even higher rating, specifically including 5 or more painful or unstable scars. As such, a rating exceeding 20 percent is not permissible. 3. Entitlement to a rating higher than 30 percent for the right knee disability, status post-repair of medial meniscus tear, post-operative total knee replacement (right knee disability) The Veteran's contends that his right knee disability warrants a higher rating. He initially had a 10 percent rating from February 20, 2003 for limited motion of this knee. He then underwent total right knee replacement surgery (arthroplasty) and resultantly received a temporary 100 percent rating for the ensuing year or so, initially under 38 C.F.R. § 4.30 for his convalescence beginning on May 24, 2011 and continuing until July 1, 2012 since expressly mandated by DC 5055. From that date onwards, his disability has been rated instead as 30-percent disabling based on the residuals. For disabilities evaluated based on limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 pertaining to functional impairment. These determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). Knee disabilities also may be awarded separate ratings for instability (DC 5257) in addition to arthritis with consequent limitation of motion (DCs 5003, 5260 and 5261). VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997); VAOPGCPREC 9-98 (August 14, 1998). As well, separate ratings may be assigned for limitation of flexion (DC 5260) and limitation of extension (DC 5261). VAOPGCPREC 9-2004 (September 17, 2004). When evidence is created is irrelevant compared to when the Veteran actually experienced the symptoms. McGrath v. Gober, 14 Vet. App. 28 (2000). Thus, the Board will consider whether the evidence of record suggests that the severity of pertinent symptoms increased sometime prior to the date of the examination reports noting pertinent findings. VA amended the criteria for rating musculoskeletal disabilities effective as of February 7, 2021. These new regulations apply to all applications for benefits received by VA or that are pending before the AOJ (RO) on or after February 7, 2021. Claims pending prior to the effective date are considered under both old and new rating criteria, and the more favorable criteria are applied. The Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective date of the new regulation if the prior version was in effect during the pendency of the appeal. The evaluation of the same disability under several DCs, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Estban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. As such, as already alluded to, a single knee can be rated under multiple DCs, in accordance with symptoms shown. Limitation of flexion warrants 10, 20, and 30 percent ratings when the limitation is to 45 degrees, 30 degrees, and 15 degrees, respectively. 38 C.F.R. § 4.71a, DC 5260. Limitation of extension warrants 10, 20, 30, 40, and 50 percent ratings when the limitation is to 10 degrees, 15 degrees, 20 degrees, 30 degrees, and 45 degrees, respectively. 38 C.F.R. § 4.71a, DC 5261. Recurrent subluxation or lateral instability warrants a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, DC 5257. Ratings also may be assigned when the knee disability affects the meniscus, with a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain and effusion into the joint and a 10 percent rating for removal of semilunar cartilage (e.g., meniscectomy) and current residual symptoms. 38 C.F.R. § 4.71a, DCs 5258, 5259. Moreover, the Court has explained that ratings under DCs 5257, 5003 and 5260 and/or 5261 do not preclude a separate rating under the meniscal codes, i.e., DCs 5258 or 5259. See Lyles v. Shulkin, 29 Vet. App. 107 (2017). Under DC 5055, status post knee replacement, prosthetic replacement of a knee joint is rated 100 percent for one year following implantation of the prosthesis. Thereafter, the minimum rating following replacement of a knee joint is 30 percent. Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to DCs 5256, 5260, 5261, or 5262. Chronic residuals consisting of severe painful motion or weakness in the affected extremity warrant a 60 percent rating. 38 C.F.R. § 4.71a, DC 5055. While pain may constitute functional loss if it affects some aspect of the normal working movements of the body, its existence does not, itself, constitute functional loss. See Mitchell v. Shinseki, 24 Vet. App. 32, 33, 43 (2011). Pursuant to 38 C.F.R. §§ 4.40 and 4.45, possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Still, pain is just one factor to be considered when evaluating functional impairment. Id. Consequently, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. See Mitchell, supra. Further, 38 C.F.R. § 4.40 does not require a separate rating for pain but provides guidance for assigning ratings under other DCs assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). Evaluation of painful motion as limited motion only applies when limited motion is noncompensable (meaning 0-percent disabling). See Mitchell, supra. Although painful motion is entitled to a minimum 10 percent rating, when read with DC 5003 regarding arthritis, the maximum rating is not warranted under the applicable range of motion DC simply because pain is present throughout the range of motion. Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Ankylosis contemplates total absence of motion due to "fixation" of a joint. For VA compensation purposes, ankylosis is defined as "immobility and consolidation of a joint due to disease, injury or surgical procedure." See Colayong v. West, 12 Vet. App. 524, 528 (1999); Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). Here, however, although the record indicates limited movement, meaning less than normal movement, it does not indicate lack of movement or total immobility as might suggest ankylosis. Thus, DC 5256 is inapplicable. Right knee disability rating from March 2010 through May 2011 In March 2010, the Veteran's disability was rated under DC 5010 for osteoarthritis of this knee, status post meniscal repair. Osteoarthritis under DC 5010 (and, on referral, DC 5003) warrants a 10 percent rating when there is arthritis and limited joint motion, but the limited motion is noncompensable, though painful, under the appropriate DCs for rating limitation of motion. The Veteran's claim for an increased rating was received by VA in March 2011. So, the review period starts one year earlier, in March 2010. See Harper, 10 Vet. App. at 126. But, as already pointed out, the record does not contain medical treatment notes between January 2003 and his March 2011 claim discussing the severity of his right knee disability. It was rated at 10 percent for osteoarthritis of this knee from February 20, 2003, until his replacement surgery on May 24, 2011. At his hearing, he testified that he was unable to walk around with his wife prior to that surgery. This statement, alone, is insufficient to justify a rating greater than 10 percent between March 2010 and May 24, 2011. The evidence does not show his right knee flexion limited to 30 degrees or less, extension to 15 degrees or more, recurrent subluxation or lateral instability, dislocated semilunar cartilage, or ankylosis, favorable or unfavorable, during this earlier time period that might justify any higher rating. Hence, the benefit of the doubt rule is inapplicable because there is not the needed relative balance of evidence for versus against the claim (equipoise), so the claim for a higher rating during this earlier time period must be denied. 38 C.F.R. §§ 4.3, 4.7; Gilbert, 1 Vet. App. at 54-56. Increased rating from July 1, 2012 to the present The Veteran's right knee disability was assigned the maximum 100 percent rating for the period of his convalescence following his total right knee replacement surgery, see 38 C.F.R. § 4.30, and then as expressly mandated by DC 5055. That temporary 100 percent rating was from May 24, 2011 to July 1, 2012. But, as of July 1, 2012, the rating became 30 percent, the minimum permissible after a total knee replacement. 38 C.F.R. § 4.71a, DC 5055. The first thing worth pointing out in this regard is that DC 5055 contains a temporal element for continuance of the 100 percent rating for the total right knee replacement. Therefore, the RO's action upon termination of that temporary 100 percent rating after the prescribed one year was not a "rating reduction," per se, as that term is commonly understood. See Rossiello v. Principi, 3 Vet. App. 430 (1992) (wherein the Court found that a 100 percent rating for mesothelioma ceased to exist by operation of law because the applicable DC involved contained a temporal element for that 100 percent rating). The Veteran's January 2012 NOD requested a higher post-convalescence rating for his right knee disability, but the record is absent details until his October 2015 VA Form 9 and April 2021 pre-hearing filings. He has reported experiencing severely painful motion, weakness, and numbness wrapping around this knee. During his hearing, he testified to constant right knee pain, numbness, clicking, locking, and chronic instability, causing gait problems and loss of balance. The Veteran is competent to testify about his symptoms, including in terms of their severity and when then begin and do versus do not end (so their frequency and duration), and the Board has no reason to question his credibility concerning that. Barr v. Nicholson, 21 Vet. App. 303, 307-308 (2007). As such, the Board finds that the evidence, including his lay statements regarding the severity of his symptoms, is at least in relative equipoise, if not more favorable to the claim, concerning whether, despite his total right knee replacement surgery, he still has the required chronic residuals of severe painful motion or weakness in this knee. Jandreau, 492 F.3d at 1377; 38 C.F.R. §§ 4.3, 4.7. Again, however, the evidence supporting a higher rating is not until his lay statements on his October 2015 VA Form 9. Thus, the Board finds that he is entitled to a higher a 60 percent rating for his right knee disability from October 5, 2015 onwards. The Board finds that assignment of any rating greater than 60 percent not warranted under the applicable rating criteria, as the Veteran has not had any portion of his right lower extremity amputated and, as explained, a 100 percent rating is only warranted under DC 5055 for the one year immediately following implantation of the prosthesis. And, as discussed, he already had this required temporary 100 percent rating from May 24, 2011 until July 1, 2012. That rating was for slightly more than a year because the 100 percent rating under DC 5055 only commences once the temporary 100 percent initial convalescent rating under 38 C.F.R. § 4.30 terminates. There are some exceptional cases where a schedular rating is inadequate and it may be appropriate to assign an extra-schedular rating. 38 C.F.R. § 3.321(b). The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available scheduler evaluations for that service-connected disability are inadequate. Id.; see also Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). So, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe his disability level and symptomatology, then his disability picture is contemplated by the Rating Schedule, the assigned scheduler evaluation is adequate, and no referral is required. Here, the Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render the already assigned ratings inadequate. After July 2012, his service-connected right knee disability is evaluated pursuant to 38 C.F.R. § 4.71a, DC 5055, the criteria of which are found by VA and the Board to apply to his right knee disability and fully contemplate the extent of his symptoms and consequent impairment. These ratings are warranted for knee replacement, and increased ratings are available under the rating criteria if other manifestations of the right knee disability are shown once beyond the convalescence and one-year post-operative regulatory grace period. These diagnostic criteria fully and adequately describe the severity and symptomatology exhibited by his right knee. When comparing his disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that his experiences are congruent with the disability picture represented by the disability ratings assigned. The criteria for 60 and 30 percent ratings, upon termination of the temporary 100 percent rating, reasonably describe his disability levels and symptomatology during the appropriate time periods discussed. Consequently, the Board concludes that the assigned schedular evaluations are adequate and that referral of his right knee claim for extra-schedular consideration is not required. See 38 C.F.R. § 4.71a, DC 5055; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996). REASONS FOR REMAND 1. Entitlement to a compensable rating for bilateral hearing loss The Veteran contends that his bilateral (left and right ear) hearing loss warrants a compensable rating meaning a rating higher than 0 percent. During his hearing, he requested to be reexamined because his last examination was several years ago. Although the "mere passage of time" does not render an old examination inadequate (Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007)), when available evidence is too old for an adequate evaluation of a Veteran's disability, VA's duty to assist includes providing a new examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). The Veteran has consistently asserted that his hearing acuity has worsened appreciably since his July 2015 VA hearing examination. Accordingly, this claim is REMANDED for the following action: Arrange for the Veteran to undergo another VA audiological examination reassessing the severity of his bilateral hearing loss. A copy of this remand and all relevant medical and other records must be made available to the examiner. The examiner must review the pertinent evidence, including the Veteran's lay assertions, and undertake all indicated testing and evaluation needed to rate this disability under the applicable DC. Also, in reassessing the severity of this disability, the examiner is asked to address its functional impact. It is essential the examiner provide rationale for all opinions expressed, whether favorable or unfavorable to this claim, preferably citing to objective findings during the evaluation, other supporting evidence in the file, and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Stearns, Associate 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.