Citation Nr: 18132323
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 11-23 750A
DATE:	September 6, 2018
ORDER
Entitlement to service connection for left shin splints is denied.
Entitlement to service connection for right shin splints is denied.
Entitlement to an effective date prior to August 2, 2010 for the grant of service connection for right knee osteoarthritis is denied.
Entitlement to an effective date prior to August 2, 2010 for the grant of service connection for left knee osteoarthritis is denied.
Prior to July 31, 2013, entitlement to a rating in excess of 10 percent for right knee status post total knee arthroplasty (previously evaluated as right knee osteoarthritis) is denied.
Prior to March 30, 2016, entitlement to a rating in excess of 10 percent for left knee status post total arthroplasty (previously evaluated as left knee osteoarthritis) is denied.
Prior to July 31, 2013, entitlement to an extraschedular rating for right knee osteoarthritis is denied.
Prior to March 30, 2016, entitlement to an extraschedular rating for left knee osteoarthritis is denied.

REMANDED
Since October 1, 2014, entitlement to a rating in excess of 30 percent for right knee status post total knee arthroplasty is remanded.
Since June 1, 2017, entitlement to a rating in excess of 30 percent for left knee status post total arthroplasty is denied.
FINDINGS OF FACT
1. The Veteran does not have current symptoms of left shin splints. 
2. The Veteran does not have current symptoms of right shin splints. 
3. The Veteran’s claim of entitlement to service connection for swelling of the legs and pain in the knees was denied in an August 19, 1981 rating decision that became final because he did not appeal or submit new and material evidence within the appeal period. 
4.  The correct facts, as known at the time, were before the VA adjudicators in August 1981 and the statutory and regulatory provisions extant at the time were correctly applied. 
5.  The Veteran’s application to reopen his previously denied claim of entitlement to service connection for bilateral knee conditions was received by VA on August 2, 2010. 
6. Prior to July 31, 2013, the Veteran’s right knee osteoarthritis is manifested by no more than painful motion.
7. Prior to March 30, 2016, the Veteran’s left knee osteoarthritis is manifested by no more than painful motion.
CONCLUSIONS OF LAW
1. The criteria for entitlement to service connection for left shin splints have not been met.  38 U.S.C. 1131, 5107; 38 C.F.R. 3.303, 3.304.
2. The criteria for entitlement to service connection for right shin splints have not been met.  38 U.S.C. 1131, 5107; 38 C.F.R. 3.303, 3.304.
3. The criteria for entitlement to an effective date prior to August 2, 2010 for the grant of service connection for right knee osteoarthritis have not been met.  38 U.S.C. § 5110; 38 C.F.R. §§ 3.1, 3.102, 3.104, 3.151, 3.155, 3.156, 3.400.
4. The criteria for entitlement to an effective date prior to August 2, 2010 for the grant of service connection for left knee osteoarthritis have not been met.  38 U.S.C. § 5110; 38 C.F.R. §§ 3.1, 3.102, 3.104, 3.151, 3.155, 3.156, 3.400. 
5. Prior to July 31, 2013, the criteria for entitlement to a rating in excess of 10 percent for right knee status post total knee arthroplasty (previously evaluated as right knee osteoarthritis) have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, DCs 5256-5263.
6. Prior to March 30, 2016, the criteria for entitlement to a rating in excess of 10 percent for left knee status post total arthroplasty (previously evaluated as left knee osteoarthritis) have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, DCs 5256-5263.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty in the United States Marine Corps from September 1975 to December 1976.  
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in November 2010, March 2012, and June 2013 by the Department of Veterans Affairs (VA) Regional Office (RO).  The November 2010 rating decision denied service connection for a low back condition, sinusitis, and left and right shin splints.  The March 2012 granted service connection for left knee ostearthritis and right knee osteoarthritis and assigned an evaluation of 10 percent for each knee effective August 10, 2010.  A June 2013 rating decision found clear and unmistakable error in the effective date for right and left knee osteoarthritis and established an effective date of August 2, 2010 for each knee.  In a February 2014 rating decision, the RO increased the Veteran’s service-connected right knee osteoarthritis (currently evaluated as right knee status post total knee arthroplasty) to 100 percent effective July 31, 2013 based on surgical and other treatment necessitating convalescence, and assigned an evaluation of 30 percent from October 1, 2014.  In an August 2016 rating decision, the RO increased the Veteran’s service-connected left knee osteoarthritis (currently evaluated as left knee status post total knee arthroplasty) to 100 percent effective March 30, 2016 based on surgical and other treatment necessitating convalescence, and assigned an evaluation of 30 percent from June 1, 2017.
In February 2016, these issues were previously before the Board and remanded for additional development.  In a September 2016 statement, prior to the promulgation of a Board decision, the Veteran requested to withdraw his appeal as to the issue of entitlement to TDIU.  Accordingly, the Board does not have jurisdiction to review the appeal of this issue and it is dismissed.  38 U.S.C. 7105; 38 C.F.R. 20.204.
Service Connection Claims
The Veteran contends that he has a bilateral shin condition that is related to service and began in 1975.  See August 2010 Veteran’s Application for Compensation and Pension; November 2010 notice of disagreement.  He contends that he had problems while marching in service and the weight from his rucksack caused his shin conditions.  See January 2016 Appellant’s Brief; Scott v. McDonald,789 F.3d 1375 (Fed. Cir. 2015).
Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).
The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. 1131; see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  It has been held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary’s adjudication of the claim.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  This can also be in close proximity to the date of claim.  See Romanowsky v. Shinseki, 26 Vet. App. 289, 293-94 (2013).  Even in the absence of a diagnosed disability, evidence of functional limitations due to symptoms can meet this requirement.  Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). 
A September 1975 service treatment record shows tender lateral aspect of the left tibia and fibula.  In October 1982 treatment records, the Veteran reported that he experienced swelling in his shins after vigorous exercise in service, which first manifested after he completed forced marches in the Marines.  Post-service VA treatment records note that the Veteran’s past medical history included surgery for bilateral shin splints.  See May 2000, March 2003, April 2013 VA treatment records.  The February 2012 and June 2016 VA examinations of the knees and lower legs noted the Veteran did not currently have and had never had shin splints.  At the June 2016 VA examination, the Veteran stated he had no complaints of lower leg pain.  The June 2016 VA examiner provided a negative nexus opinion.  His rationale was that the service treatment records did not show a diagnosis of shin splints, the September 1975 service treatment record did not fit the diagnosis of shin splints, and the Veteran had no shin splint symptoms at the June 2016 VA examination.  Further, VA treatment records do not show a diagnosis of shin splints.
As a result, the Board concludes that there is no current diagnosis or functional impairment relating to shin splints.  Service connection is in effect for radiculopathy of the right and left lower extremities, right knee status post total knee replacement, left knee arthroplasty, and scars of the right and left knees.  To the extent that the VA treatment records show reports of leg pain, his pain is contemplated by the rating criteria for his other service-connected conditions.  A review of the record reveals that there is no function limitation not accounted for by another service-connected disability.  See Saunders.  As such, the preponderance of the evidence is against the Veteran’s claims for service connection for left and right shin splints.  Therefore, the benefit-of-the-doubt doctrine does not apply and service connection is not warranted.  38 U.S.C. 5107(b); 38 C.F.R. 3.102.
Earlier Effective Date Claims
The Veteran seeks an effective date earlier than August 2, 2010 for the grant of service connection for osteoarthritis of the right and left knees.  He contends that there is clear and unmistakable error (CUE) in the August 19, 1981 rating decision that denied his earlier claim for service connection for swelling of legs and pain in the knees.  See June 2013 notice of disagreement.  Specifically, he contends that the effective date of his right and left knee osteoarthritis should be August 19, 1981 as the same records were used to deny his claim in 1981 and to grant his claim in 2010.  See May 2016 statement; Scott v. McDonald,789 F.3d 1375 (Fed. Cir. 2015).
In June 1981, the Veteran filed his initial claim of service connection for swelling of legs and pain in knees.  In an August 1981 rating decision, the RO denied service connection as there was no evidence of recurrence, continuity, or chronicity of his knee conditions.  In August 1981, the RO notified him of the determination and of his appellate rights.  The Veteran did not file a timely notice of disagreement within one year of receiving notice of the determination; therefore, the decision became final.  38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103.  
On August 2, 2010, the Veteran filed an application to reopen his claim of service connection for left and right knee conditions, which was granted by the RO in March 2012.  A June 2013 rating decision found clear and unmistakable error and granted an effective date of August 2, 2010.  
Under the law, the effective date for a grant of service connection on the basis of the receipt of new and material evidence following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later.  38 U.S.C. § 5110; 38 C.F.R. § 3.400(q)(1)(ii).  For VA compensation purposes, a “claim” 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).  The essential elements for any claim, whether formal or informal, are (1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009).  VA must look to all communications from a claimant that may be interpreted as an application or claim for benefits and is required to identify and act on informal claims for benefits.  See Servello v. Derwinski, 3 Vet. App. 196, 198 (1992).
An effective date earlier than August 2, 2010 is not warranted because this was the first date that VA received a written communication from the Veteran seeking to reopen his previously denied claims of service connection for right and left knee conditions.  See Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005); Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003).  Because the Veteran’s right and left knee conditions had their onsets in service, service connection was established.  It does not follow, however, that because service connection is warranted that the effective date of service connection be the day following service or the date he filed his original claim because doing so would render meaningless many of the provisions of 38 U.S.C. § 5110 and 38 C.F.R. § 3.400.  Indeed, in Sears, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that pursuant to 38 C.F.R. § 3.400(q), which it declared was a valid gap-filling regulation, there was no conflict between 38 U.S.C. §§ 5108 and 5110, and thus the earliest possible effective date of service connection for a reopened claim was the date the reopened claim was received.  Id. at 1332.  
Further, the Board finds that the August 1981 rating decision did not contain CUE.  CUE is a very specific and rare kind of error.  It is the kind of error of fact or of law that, when called to the attention of later reviewers, compels the conclusion, to which reasonable minds could not differ, that the results would have been manifestly different but for the error.  Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999); Hines v. Principi, 18 Vet. App. 227, 235 (2004).  Where evidence establishes CUE, the prior decision will be reversed or amended.  38 C.F.R. 3.105(a). 
CUE is established when the following conditions are met: (1) either (a) the correct facts in the record were not before the adjudicator, or (b) the statutory or regulatory provisions in existence at the time were incorrectly applied; (2) the alleged error must be “undebatable,” not merely “a disagreement as to how the facts were weighed or evaluated”; and (3) the commission of the alleged error must have “manifestly changed the outcome” of the decision being attacked on the basis of CUE at the time that decision was rendered.  Evans v. McDonald, 27 Vet. App. 180, 185 (2014), aff’d, 642 F. App’x 982 (Fed. Cir. 2016); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). 
The error must be of a type that is outcome-determinative, and subsequently developed evidence may not be considered in determining whether an error existed in the prior decision.  See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993); Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999).  A manifest change in the outcome of an adjudication means that, absent the alleged CUE, the benefit sought would have been granted at the outset.  King v. Shinseki, 26 Vet. App. 433, 441 (2014).  A manifest change is not, for example, whether the RO would have been required to send a medical report back for clarification.  Id.  The standard is not whether it is reasonable to conclude that the outcome would have been different.  Id. at 442.
The Board finds no CUE in the August 1981 rating decision as the correct facts were before the adjudicator and the relevant statutory and regulatory provisions were correctly applied.  Here, the RO denied the Veteran’s claim because the record at that time did not contain evidence of recurrence, continuity, or chronicity of a right or left knee disability.  The August 1981 rating decision noted that a September 30, 1975 service treatment record showed a complaint of left knee pain for two weeks in duration without a pathological basis for the complaints and that from October 31, 1975 through November 5, 1975, he was treated for strain of the right lateral collateral ligament.  The rating decision notes, however, that complaints of joint pain were denied on the separation physical examination and there is no evidence of recurrence, continuity, or chronicity of the conditions.  Based on the evidence of record, the RO denied service connection for swelling of legs and pain in the knees.
The Veteran’s argument is essentially a disagreement as to how the facts were weighed or evaluated by the adjudicator.  A disagreement as to how the facts were weighed does not support a finding of CUE.  Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993).  At the time of the August 1981 rating action, the rating board was permitted to rely on its own medical judgment to support its conclusions.  Cf. Colvin v. Derwinski, 1 Vet. App. 171 (1991) (holding that the rating board cannot substitute its own medical judgment for that of medical professionals).  A medical member of the rating board participated in the August 1981 determination and, as a signatory to the determination, affirmed his agreement with the finding that the Veteran did not have a current disability.  MacKlem v. Shinseki, 24 Vet. App. 63, 70 (2010) (affirmed No. 2011-7034 (Fed. Cir. Jan. 11, 2012)); Bowyer v. Brown, 7 Vet. App. 549, 552-53 (1995) (holding that the VA’s position was substantially justified in a pre-Colvin decision relying on its own medical judgment).  To the extent that the August 1981 determination is alleged to be contrary to the medical evidence of record, the Board finds that the rating board relied upon the medical judgment of the medical member, among other things, in deciding the claim. 
As the correct facts were before the adjudicator and the applicable law was correctly applied, the Board finds no CUE in the August 1981 rating decision.  Accordingly, an effective date prior to August 2, 2010 for the grant of service connection for right knee osteoarthritis and left knee osteoarthritis is not warranted.
Higher Rating Claims
The Veteran contends that higher ratings, to include extraschedular ratings, are warranted for his right and left knee conditions due to arthritis, pain on motion, and instability.  See April 2012 notice of disagreement; August 2018 Appellant’s Post-Remand Brief; Scott v. McDonald,789 F.3d 1375 (Fed. Cir. 2015).
Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R., Part 4.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7.  The Veteran’s entire history is reviewed when making disability evaluations.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  
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 required for that rating.  Otherwise, the lower rating will be assigned.  See 38 C.F.R. 4.7.  Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate.  See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).
The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  Thus, with or without degenerative arthritis, it is the intention to recognize actually painful, unstable, or misaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. 4.59; see also Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that the provisions of 38 C.F.R. 4.59 are not limited to disabilities involving arthritis).  Moreover, when evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria.  See 38 C.F.R. 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Burton, 25 Vet. App. at 5.
Prior to the Veteran’s right total knee replacement on July 31, 2013 and prior to the Veteran’s left total knee replacement on March 30, 2016, the Veteran’s right and left knee osteoarthritis was each evaluated as 10 percent disabling under DC 5010-5260 for painful limitation of motion.
DC 5010 provides that arthritis due to trauma that is substantiated by X-ray findings is to be rated as degenerative arthritis.  DC 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 
When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, DC 5003 provides a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations; and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. 
When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, DC 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 
When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved.  38 C.F.R. § 4.71a.
Under DC 5260, which evaluates limitation of flexion, a 10 percent rating is assigned when flexion is limited to 45 degrees; a 20 percent rating is assigned when flexion is limited to 30 degrees; and a 30 percent rating is assigned when flexion is limited to 15 degrees.  38 C.F.R. 4.71a, DC 5260. 
Other diagnostic codes applicable to a knee disability include DCs 5256, 5257, 5258, 5259, 5261, 5262, and 5263.  DC 5256, which evaluates ankylosis of the knee, provides for a 30 percent rating for favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees.  A 40 percent rating is assigned when there is ankylosis of the knee in flexion between 10 and 20 degrees.  A 50 percent rating is assigned when there is ankylosis of the knee in flexion between 20 and 45 degrees.  A 60 percent rating is assigned for extremely unfavorable ankylosis in flexion at the angle of 45 degrees or more.  38 C.F.R. 4.71a, DC 5256. 
Under DC 5257, knee impairment with recurrent subluxation or lateral instability is rated 10 percent when slight, 20 percent when moderate, and 30 percent when severe.  38 C.F.R. 4.71a, DC 5257.
Under DC 5258, when semilunar cartilage is dislocated with frequent episodes of locking, pain and effusion into the joint, a 20 percent rating is assigned.  38 C.F.R. 4.71a, DC 5258. 
Under DC 5259, when semilunar cartilage has been removed, but remains symptomatic, a 10 percent rating is assigned.  38 C.F.R. 4.71a, DC 5259. 
Under DC 5261, which evaluates limitation of extension, a 10 percent rating is assigned when extension is limited to 10 degrees; a 20 percent rating is assigned when extension is limited to 15 degrees; a 30 percent rating is assigned when extension is limited to 20 degrees; a 40 percent rating is assigned when extension limited to 30 degrees; and a 50 percent rating is assigned when extension is limited to 45 degrees.  38 C.F.R. 4.71a, DC 5261. 
Separate ratings under DC 5260 and DC 5261 may be assigned for disability of the same knee joint.  See VAOPGCPREC 9-2004.  Additionally, VAOPGCPREC 23-97 held that a claimant who has both arthritis and instability of the knee may receive two separate disability ratings under DCs 5003-5010 and DC 5257 (or under DCs 5258-9) without violating the prohibition of pyramiding of ratings.  It was specified that, for a knee disorder already rated under DC 5257, a claimant would have additional disability justifying a separate rating if there is limitation of motion under DC 5260 or DC 5261.
Diagnostic Codes 5262 and 5263 provide ratings for impairment of tibia and fibula and genu recurvatum, respectively.
1. Prior to July 31, 2013, entitlement to a rating in excess of 10 percent for right knee status post total knee arthroplasty (previously evaluated as right knee osteoarthritis) is denied.
A March 2011 private treatment record shows crepitus of the knees, flexion to 90 degrees, and normal extension.  A December 2011 VA treatment record shows range of motion from zero to 110 degrees.  A January 2012 VA treatment record shows bilateral knee range of motion from zero to 110 degrees with no instability.  The February 2012 VA examination shows a diagnosis of osteoarthritis.  No flare-ups were reported.  Right knee range of motion was zero to 120, with painful motion at 100.  The Veteran was unable to perform repetitive use testing due to pain.  Joint stability testing was normal.  It was noted that the Veteran did not have shin splints, stress fracture, chronic exertional compartment syndrome, or any other tibial or fibular impairment.  The Veteran reported that he used a cane all the time due to arthritis in both knees and constant pain and that he was unable to be on his feet for a significant amount of time due to knee pain and unable to ambulate without pain.  The Veteran had a right total knee replacement on July 31, 2013.  The private treatment pre-operative examination on July 31, 2013 shows range of motion 12 to 50 degrees.
A higher rating is not warranted for the under DC 5260 or 5261 as the Veteran’s flexion has been no less than 50 degrees and the Veteran’ extension has been no less than 12 degrees throughout the appeal period.  The Board has also considered whether it may be appropriate to rate the Veteran’s left knee disability under other diagnostic codes, but finds that no higher or additional evaluations are warranted.  DCs 5256, 5257, 5262, and 5263, which provide ratings for ankylosis, recurrent subluxation or lateral instability; impairment of tibia and fibula, and genu recurvatum, respectively, are not applicable as there is no evidence of such impairments.  Although the Veteran reported instability, there is no evidence of instability in the medical records.  Therefore, a higher rating or separate rating is not available under these DCs.
2. Prior to March 30, 2016, entitlement to a rating in excess of 10 percent for left knee status post total arthroplasty (previously evaluated as left knee osteoarthritis) is denied.
A March 2011 private treatment record shows crepitus of the knees, flexion to 90 degrees, and normal extension.  A December 2011 VA treatment record shows range of motion from zero to 110 degrees.  A January 2012 VA treatment record shows bilateral knee range of motion from zero to 110 degrees with no instability.  February 2012 VA examination shows a diagnosis of osteoarthritis.  No flare-ups were reported.  Left knee range of motion was zero to 115, with painful motion at 90.  The Veteran was unable to perform repetitive use testing due to pain.  Joint stability testing was normal.  It was noted that the Veteran did not have shin splints, stress fracture, chronic exertional compartment syndrome, or any other tibial or fibular impairment.  The Veteran reported that he used a cane all the time due to arthritis in both knees and constant pain and that he was unable to be on his feet for a significant amount of time due to knee pain and unable to ambulate without pain.
A November 2015 VA treatment record shows range of motion of the left knee zero to 120 degrees.  A February 2016 VA treatment record shows range of motion zero to 130 degrees.  A March 2016 VA treatment record shows active range of motion 10 to 82.  A higher rating is not warranted for the under DC 5260 or 5261 as the Veteran’s flexion has been no less than 82 degrees with pain and the Veteran’ extension has not been less than 10 degrees throughout the appeal period.
The Board has also considered whether it may be appropriate to rate the Veteran’s left knee disability under other diagnostic codes, but finds that no higher or additional evaluations are warranted.  DCs 5256, 5257, 5262, and 5263, which provide ratings for ankylosis, recurrent subluxation or lateral instability; impairment of tibia and fibula, and genu recurvatum, respectively, are not applicable as there is no evidence of such impairments.  Although the Veteran reported instability, there is no evidence of instability in the medical records.  Therefore, a higher rating or separate rating is not available under these DCs.
REASONS FOR REMAND
A remand is warranted for entitlement to a rating in excess of 30 percent for right knee status post total knee arthroplasty, to include an extraschedular rating, since October 1, 2014 and entitlement to a rating in excess of 30 percent for left knee status post total arthroplasty, to include an extraschedular rating, since June 1, 2017.  
At the June 2016 VA examination, the Veteran reported flare-ups.  The examiner determined that he was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability with flare-ups as the examination was not conducted during a flare-up.  In Sharp, the Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must “elicit relevant information as to the Veteran’s flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the Veteran’s functional loss due to flares based on all the evidence of record, including the Veteran’s lay information, or explain why she could not do so.”  In light of this decision, the Board finds that new VA examination is warranted to address the Veteran’s right and left knee conditions.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).
The matters are REMANDED for the following action:
1. Request that the Veteran identify any additional outstanding VA or private treatment records pertaining to his claims and take appropriate measures to obtain these records.
2. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his right and left knee disabilities.  The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed.  
The examiner should conduct all indicated tests and studies, to include range of motion studies.  The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint (in the case of the right shoulder).  If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.
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.  
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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).
 
STEVEN D. REISS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	C. Samuelson, Counsel 

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