Case 24024613

MATTHEW W. BLACKWELDER · 2024 · Case ID: 24024613

DENIED

Summary

The veteran, who served from August 1980 to December 1983, appealed the denial of a total disability rating based on individual unemployability (TDIU) and service connection for an acquired psychiatric disorder (depression and insomnia) secondary to his right knee disability. The veteran also appealed the denial of an increased rating for his right knee disability for the period from April 1, 2016, to January 18, 2021. The Board previously remanded the claim for evaluation of the knee disability's severity and initial development of the TDIU claim. The Regional Office (RO) subsequently increased the knee rating to 60 percent effective September 2, 2021, and denied the TDIU and psychiatric claims. The Board then staged the ratings, finding the knee disability intermediate (30 percent) from April 1, 2016, to January 18, 2021, and severe (60 percent) thereafter. The veteran failed to attend a scheduled mental health examination necessary for the TDIU and psychiatric claims, leading to their denial. The Board found no clinically diagnosed mental disorder related to the knee disability, noting the veteran's own reports were not sufficiently corroborated or clinically significant, and that his symptoms were likely normal reactions to stress or unrelated to his knee condition. The Board also found the evidence did not support a rating higher than 30 percent for the knee residuals during the period in question, as the symptoms described were intermediate, not severe, according to the rating schedule. The appeal was denied.

Special Benefit

TDIU

Docket No.

18-12 827

Full Decision Text

Citation Nr: 24024613
Decision Date: 06/26/24 Archive Date: 06/26/24

DOCKET NO. 18-12 827
DATE: June 26, 2024

ORDER

A total disability rating due to individual unemployability (TDIU) rating is denied.

Service connection for an acquired psychiatric disorder, to include depression and insomnia as secondary to a right knee disability, is denied.

A rating in excess of 30 percent for a right knee disability for the period from April 1, 2016, to January 18, 2021, is denied.

FINDINGS OF FACT

1. The Veteran failed to appear for his medical examination necessary to determine his entitlement to a TDIU and has not provided good cause for not appearing for his examination as scheduled.

2. The evidence of record does not establish that the Veteran is unable to obtain or maintain substantially gainful employment on account of service connected disabilities.

3. The evidence of record fails to show any clinically diagnosed mental disorder associated with the Veteran's right knee disability.

4. The evidence of record fails to show that, during the period from April 1, 2016, to January 18, 2021, the Veteran's right knee disability was productive of compensable limitations of motion, or nonunion/malunion of tibia and fibula, or ankylosis, or manifested with residual pain or weakness any greater than of an intermediate degree.

CONCLUSIONS OF LAW

1. The criteria for denial of a TDIU rating have been met. 38 U.S.C. § 501; 38 C.F.R. § 3.655.

2. The criteria for service connection an acquired psychiatric disorder, to include depression and insomnia as secondary to right knee disability, have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.310, 4.125.

3. The criteria for rating the post total right knee replacement residuals in excess of 30 percent for the period from April 1, 2016, to January 18, 2021, have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5055.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from August 1980 to December 1983. In an April 2015 rating decision, the Regional Office (RO) granted a temporary total convalescent rating for a total right knee replacement from February 11, 2015, to March 31, 2016, succeeded by a rating at 30 percent based on the residuals. The Veteran appealed, contending that the total rating should be continued beyond March 31, 2016. In January 2021, the Veteran testified at a Board hearing. The transcript is of record.

In July 2021, upon noting the Veteran's testimony that the severity level of his right knee disability has worsened since the last VA examination in August 2016 and further finding that a TDIU rating has been reasonably raised, the Board remanded the claim to evaluate the more recent severity levels of his right knee disability and to initially develop a TDIU.

In a September 2021 rating decision, the RO increased a rating for his right knee disability from 30 to 60 percent, effectuated from September 2, 2021, the date of the VA examination. Concurrently, the RO issued a supplemental statement of the case, explaining the reasons for denying a rating in excess of 30 percent prior to September 2, 2021, and thereafter in excess of 60 percent, to include a TDIU, and returned the appeal to the Board.

In May 2023, the Board staged the ratings at 30 percent from April 1, 2016, to January 18, 2021, and at 60 percent thereafter, which essentially afforded the Veteran an earlier affective date for a rating at 60 percent as of the date of his reported worsening rather than as of the date of the VA examination which merely confirmed the more severe levels, as reported by the Veteran. The Veteran appealed to the United States Court of Appeals for Veterans' Claims (Court).

The Board further found the Veteran's claim for service connection for an acquired psychiatric disorder other than PTSD as secondary to his right knee disability to be reasonably within the scope of claim and inextricably intertwined with a TIDU, and remanded the remaining issues to the RO to adjudicate service connection for an acquired psychiatric disorder and to readjudicate a TDIU.

In substantial compliance with the Board's remand directives, the RO scheduled the Veteran for a
date for a rating at 60 percent as of the date of his reported worsening rather than as of the date of the VA examination which merely confirmed the more severe levels, as reported by the Veteran. The Veteran appealed to the United States Court of Appeals for Veterans' Claims (Court).

In substantial compliance with the Board's remand directives, the RO scheduled the Veteran for a mental health examination as to the nature and etiology of his claimed depression and insomnia. Upon further noting that the Veteran's medical treatment records list multiple chronic nonservice-connected disabilities, to include coronary arteriosclerosis, hypertension, alcohol dependence, gastritis, dysphagia, reflux disease, epicondylitis, diverticulitis, polyneuropathy, biceps tear residuals, and shoulder pain, the RO determined that parsing out the functional impact of those disabilities and his service-connected disabilities requires medical expertise. As such, the RO scheduled the Veteran for a comprehensive medical examination in January 2024. This much is reflected in a December 2023 internal request for examination and opinion, along with a January 2024 log of pertinent attempts to contact the Veteran via telephone, text, email, and regular mail, to include a copy of a December 2023 mailed notice of examination, informing the Veteran of the date, time, and place of the scheduled examination, explaining the reasons therefor, and emphasizing the importance of his attendance.

Unfortunately, the Veteran has neither appeared for his examination as scheduled nor provided any reason for failure to do so. In these circumstances, as a matter of law, a TDIU claim must be denied, while the original claim for service connection for an acquired psychiatric disorder will be decided based on the evidence of record. See 38 C.F.R. § 3.655(a)-(b).

To that end, the regulation unambiguously states: "When a claimant fails to report for an examination scheduled in conjunction with. . . a claim for increase, the claim shall be denied." A TDIU is merely one type of claim for increased compensation. As discussed, the examination was necessary to determine entitlement to a TDIU and the Veteran failed to report for that examination without providing good cause. Accordingly, the claim for a TDIU rating is denied. Id. § 3.655(b).

In every claim for an acquired mental disorder, among the fundamental legal criteria for establishing entitlement to service connection, the evidence of record must show a mental disorder clinically diagnosed under the DSM-5 (Diagnostic and Statistical Manual of Mental Disorders, 5th ed. (2013), as set forth by the American Psychiatric Association). See Martinez-Bodon v. McDonough, 28 F.4th 1241 (Fed. Cir. 2022). This is where the evidence of record fails.

It is not inconceivable that the Veteran may have experienced difficulties with his mood and sleep due to his right knee disability. To the contrary, it is expected that orthopedic disabilities would be productive of limitations of motion and pain with some discomfort, excessive weakness and fatigability, along with less than normal speed, strength, endurance, and excursion, resulting in limited locomotion and ambulation. Such limitations are not exclusive to daytime and well may occur at night, distracting both sleep and mood, which may over time proximately cause or result in a chronic mental disorder, or aggravate a preexisting mental disorder. A determination as to whether this is actually the Veteran's case requires medical expertise in such fields as psychology, psychiatry, or neuropsychology, which the Veteran does not appear to possess.

While dubbing his own perception of sleep and mood distractions as "depression" and "insomnia," but without any apparent specialized knowledge, training, or experience, the Veteran is said not to possess the requisite expertise to determine the clinical significance of the potentially relevant signs and symptoms, diagnose mental disorders, attribute symptomatology to particular pathology, render any other medical opinions, and establish medical basis for service connection. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).

Upon noting that the Veteran's treatment records reflected several annotations of depression and insomnia, to include one positive depression screening by primary care, the Board also noted several negative depression screenings (with a score of zero) without any clinically diagnosed mental disorder adhering to the DSM-5 diagnostic criteria. Likewise, his medical treatment records were equally devoid of any single complaint or reference
said not to possess the requisite expertise to determine the clinical significance of the potentially relevant signs and symptoms, diagnose mental disorders, attribute symptomatology to particular pathology, render any other medical opinions, and establish medical basis for service connection. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).

For example, in February 2017 following a one-time positive depression screening, the Veteran was referred to Primary Care Psychology for a brief behavioral health assessment to address issues related to his reported depression. He was briefly seen by a psychologist who noted that the Veteran presented with some symptoms of depression due to stress, to include related to the reduction of his VA benefits. As matter of common knowledge, feeling sad is a normal human emotional reaction to stress, to include due to financial strain. Otherwise, the psychologist noted that the Veteran's sleep, energy, interests, appetite, and psychomotor were within normal limits, and his mood was "happy." The psychologist again noted that his stressors include dealing with the disability rating changes (rather than relating to any of his underlying disabilities). The Veteran was briefly seen two more times for followup. His subsequent depression screenings, to include in November 2017, June 2018, and July 2019 (PQ-2+I9), were negative.

That is in addition to multiple apparently no less disabling nonservice-connected disabilities, to include coronary arteriosclerosis, hypertension, alcohol dependence, gastritis, dysphagia, reflux disease, epicondylitis, diverticulitis, polyneuropathy, biceps tear residuals, and shoulder pain. These nonservice-connected disabilities, each of which conceivably may be productive of difficulties with sleep and mood and even more so collectively, also may cause the same manifestations which the Veteran attributed to his right knee disability. However, the Veteran's own belief is unqualified and largely uncorroborated. This is why the Board remanded his claim for evaluation by a qualified mental health professional to determine the nature and etiology of the reported symptomatology.

Per Board's directive, the RO scheduled the Veteran for an examination to that end and notified him of the date, time, and place. Unfortunately, he neither appeared as scheduled nor provided any reason for not attending his examination. Absent good cause for the Veteran's lack of rudimentary cooperation with the VA's efforts to assist him in developing his claim, the VA's duty to assist him had ceased and no further duty has arisen. 38 C.F.R. § 3.159(c)(4). As such, the RO has substantially complied with the Board's remand directive. See Stegall v. West, 11 Vet. App. 268, 271 (1998).

Otherwise, the evidence of record before the Board at this time, to include the Veteran's more recent medical treatment records, still fails to establish the requisite clinical diagnosis of any mental disorder adhering to the mandatory regulatory requirement of demonstrating clinically diagnosed psychiatric disorder under the DSM-5, and without any suggestion that the reported symptoms were any greater than mild and transient, let alone show the resulting chronic mental disorder that was caused by his right knee disability. Rather to the contrary, particularly in light of the multiple negative depression screenings, the evidence of record strongly suggests that those symptoms have resolved. This leaves the Board without any legal basis to award the sought service connection for an acquired psychiatric disorder. To this extent, the appeal is also denied.

In February 2024, the Court granted a Joint Motion for Partial Remand (JMPR), vacating and remanding the Board's May 2023 decision to the extent of denying the Veteran's claim for a rating for this right knee disability at 30 percent from April 1, 2016, to January 18, 2021. The parties to the JMPR have not challenged, and the Court did not disturb, the Board's conclusion that a rating at 60 percent thereafter was not warranted. As such, the remaining issue on appeal is evaluation of the Veteran's right knee disability in excess of 30 percent from April 1, 2016, to January 18, 2021. Of note, the Veteran's secondary postoperative neurological abnormalities and scars are rated separately and are not review in this appeal.

Of further note, at the January 2021 Board hearing, the Veteran raised a contention
Veteran's claim for a rating for this right knee disability at 30 percent from April 1, 2016, to January 18, 2021. The parties to the JMPR have not challenged, and the Court did not disturb, the Board's conclusion that a rating at 60 percent thereafter was not warranted. As such, the remaining issue on appeal is evaluation of the Veteran's right knee disability in excess of 30 percent from April 1, 2016, to January 18, 2021. Of note, the Veteran's secondary postoperative neurological abnormalities and scars are rated separately and are not review in this appeal.

Of further note, at the January 2021 Board hearing, the Veteran raised a contention this a total rating should be continued past March 31, 2016, to include on the basis of 38 C.F.R. § 4.30, providing for convalescent ratings. However, it is clear that a total rating under that section may not be extended beyond 12 months. Likewise, the schedule for rating post total knee replacement is further clear in that a total rating based on the post operative status alone is temporary and may not be continued beyond a period of thirteen months. 38 C.F.R. § 4.71a, DC 5055 (2020).

Thereafter, a rating to be assigned is based on the residuals rather than on the post-surgical status alone which entitles the Veteran to a minimum rating at 30 percent, but not higher. Neither the Veteran, nor the parties to the JMPR, nor the Court, has challenged the Board's substantive factual findings to that end and its ultimate conclusion that rating the Veteran's right knee disability in excess of 30 percent prior to September 2, 2021, is not warranted.

Instead, the parties to the JMPR agreed that the Board did not sufficiently explain its findings "consistent with an intermediate rather than a severe" degree, without defining the regulatory terms "intermediate" and "severe" within the meaning of Diagnostic Code (DC) 5055. The Board will endeavor to do so here.

The total knee replacement residuals are evaluated based on the criteria listed under DC 5055 of the VA schedule for rating musculoskeletal disabilities, on the following bases. 38 C.F.R. § 4.71a, DC 5055. An intermediate degree of residual weakness, pain, or limitation of motion is rated by analogy to DC 5256 providing for ankylosis, DC 5261 providing for range of motion (ROM) loss in extension, or DC 5262 providing for nonunion or malunion of tibia and fibula. Id. Otherwise, a minimum rating at 30 percent is assigned. Id.

To that end, the schedule for rating knee disabilities lists other diagnostic codes, for example, DC 5257 providing for recurrent subluxation or lateral instability, which when requires prescription by a medical provider of both an assistive device such as cane and bracing for ambulation, is ratable at 30 percent. However, DC 5055 specifically excludes evaluations under any diagnostic codes other than DCs 5256, 5261, DC 5262. Moreover, DC 5055 providing for alternative minimum rating at 30 percent, to include knee "weakness" that reasonably accounts for subluxation or instability plainly referring to a lack of stability which under DC 5257, when of the most severe degree, is ratable at the same 30 percent contemplated under DC 5055. As such, DC 5055 that specifically provides for evaluations of the post total knee replacement residuals reasonably encompasses all residuals, be it weakness, pain, and/or ROM loss, and provides for a rating of at least 30 percent.

However, DC 5055 does not permit assigning multiple ratings under multiple diagnostic codes for the same, similar, and/or overlapping symptomatology, which is a prohibited practice known as "pyramiding." See 38 C.F.R. § 4.14. In other words, no sign, symptom, or functional limitation may be counted more than once for VA compensation purposes. This essentially means that, even if evaluations under DCs 5256, 5261, and 5262, are noncompensable, the schedular minimum rating at 30 percent is assigned, but only one rating may be assigned and none of the ratings may not be combined.

Under DC 5262, a rating on the basis of nonunion or malunion of tibia and fibula, which has not been shown, suggested, or even alleged in this case, is inappropriate.

Under DC 5261, a ROM loss in extension shown to 5 degrees is noncompensable. On examination in August 2016, the ROMs in extension (normally measured from
more than once for VA compensation purposes. This essentially means that, even if evaluations under DCs 5256, 5261, and 5262, are noncompensable, the schedular minimum rating at 30 percent is assigned, but only one rating may be assigned and none of the ratings may not be combined.

Under DC 5262, a rating on the basis of nonunion or malunion of tibia and fibula, which has not been shown, suggested, or even alleged in this case, is inappropriate.

Under DC 5261, a ROM loss in extension shown to 5 degrees is noncompensable. On examination in August 2016, the ROMs in extension (normally measured from 140 to 0) was observed from 90 to 5 degrees. The examiner noted and considered the Veteran's report that "sometimes" he has flare-ups manifesting as sharp pain through his knee joint, reported stiffness and crepitus in the mornings, and reported limitations with prolonged standing and walking, sitting with knee flexed to 90 degrees, along with inability to squat, jump, run, climb, kneel, crawl, and heavy lift. He also reported difficulty walking on uneven surfaces or inclines. Upon considering those reports coupled with the objective evidence of pain on weight bearing and nonweight bearing, slightly reduced strength upon repetitive motion, the examiner accounted for factors such as additional weakness and fatigability due to repetitive use over time along with pain exacerbations during flare-ups, and then estimated that the Veteran's ROM in extension is between 85 and 5 degrees rather than 90 to 5 degrees actually demonstrated on examination that was not performed during a flare-up. However, unless knee extension is limited to 30 degrees or more, a rating in excess of 30 percent may not be assigned, whereas the ROM loss in extension to 5 degrees is noncompensable.

Under DC 5256, ankylosis also has not been shown. Particularly given the range of motion between 5 and 85 degrees, it cannot be said that the Veteran's right knee was actually or analogously ankylosed, meaning consolidated and immobilized knee joint essentially locked in a fixed position in flexion or extension and without any residual motion of at least 5 degrees. See Dorland's Illustrated Medical Dictionary (32nd ed.) (2012); see also 38 C.F.R. § 4.71a, Chavis v. McDonough, 34 Vet. App. 1, 23-24 (2021). It follows that rating the Veteran's total right knee replacement residuals under DC 5256 also is inappropriate.

These findings leave the Board with the evaluation of the Veteran's total right knee replacement residuals under DC 5055, providing for the residuals of intermediate degree ratable at 30 percent and residuals productive of severe painful motion or weakness ratable at 60 percent. Id.

The regulation does not specifically define the terms "intermediate" and "severe." It is well settled that, absent expressed regulatory definitions, the undefined terms are given their ordinary meanings at the time the regulations were promulgated. See Nielson v. Shinseki, 607 F.3d 802, 805-06 (Fed. Cir. 2010). "Intermediate" means "at the middle or between extremes" in contrast to "severe" meaning "very painful or harmful or of a great degree." Merriam-Webster Collegiate Dictionary (11th Ed. 2007). These terms also may be understood on a spectrum from 0 to 10, with severe being in a range of 8 to 10, intermediate of somewhat lesser degree tending towards the midrange of 4 to 7, while such terms as "mild" and "slight," meaning "small in amount," refer to a lesser degree than the midrange. Id.

The VA schedule for rating disabilities viewed holistically also provides useful guidance for comparative analysis. It is apparent that the higher rating percentages commensurate with the signs, symptoms, and/or functional limitations that are of somewhat greater degree than the degrees required for lower percentages. It is further apparent that under no circumstances may the combined schedular rating for a knee disability exceed a rating for the amputation, were amputation to be performed, at the middle or lower third of the thigh capped at 60 percent. See 38 C.F.R. §§ 4.68, 4.71a, DC 5162. Similarly, a knee ankylosed in "extremely unfavorable" position in flexion at 45 degrees or more is ratable at 60 percent. Id. at § 4.71, DC 5256.

It follows that the "severe" residuals of total knee replacement within the meaning of DC 5055 refer to the highest
the degrees required for lower percentages. It is further apparent that under no circumstances may the combined schedular rating for a knee disability exceed a rating for the amputation, were amputation to be performed, at the middle or lower third of the thigh capped at 60 percent. See 38 C.F.R. §§ 4.68, 4.71a, DC 5162. Similarly, a knee ankylosed in "extremely unfavorable" position in flexion at 45 degrees or more is ratable at 60 percent. Id. at § 4.71, DC 5256.

It follows that the "severe" residuals of total knee replacement within the meaning of DC 5055 refer to the highest and most extreme degree of impairment. Although the regulations do permit approximations in cases when the disability picture on review approximates the rating criteria for a higher rating more closely than the criteria for a lower rating, the Board may neither deflate the foundational legal criteria nor overinflate the evidence of record necessary to satisfy those criteria. 38 C.F.R. § 4.7.

The August 2016 examination report reflects that the Veteran underwent a total knee replacement in February 2015. The examiner indicated that, per orthopedic postoperative progress notes, the prosthesis was in good position. At that time, the Veteran reported residual infrapatellar knee pain, chronic pain in anterior knee, localized to lower medial aspect and upper lateral aspect, with constant swelling and occasional instability "sideways." Upon further noting the Veteran's report of history of slight lateral knee instability, the examiner performed the right knee joint stability testing, to include anterior (Lachman test), posterior (posterior drawer test), medial, and lateral instability, all of which turned out normal.

Of note, at that time, the Veteran also reported occasional sharp pains shooting through the joint along with the recent onset of right footdrop, which an orthopedic specialist attributed to peroneal nerve palsy secondary to the knee surgery. This secondary neurological impairment along with the post-surgical scars has been rated separately. Beyond the separately rated neurological and skin abnormalities, the evidence of record fails to show that the Veteran's musculoskeletal functions of his right knee resulted in ankylosis, caused a compensable loss of knee motion, or manifested with residual weakness or pain any more severe than the intermediate degrees ratable at no higher than at 30 percent under DC 5055.

Under DC 5055, a rating at 60 percent may be assigned only for severe degrees of residual pain or weakness. Although the Veteran and his wife have described the Veteran's symptomatology, which consists of pain, discomfort, stiffness, and swelling, and functional limitations, which are not in dispute, the mere presence of those signs, symptoms, and limitations does not automatically translate into the "severe" levels. At no time have they relayed that the Veteran's right knee has been fixed in a certain position or that he is altogether unable to move his knee, that his pain or weakness have been severe, very harmful, or of great degree.

To that end, for example, a February 2015 orthopedic preoperative notes reflect the Veteran's report of pain 5-6 out of 10. After surgery, a May 2016 orthopedic note reflects that the Veteran believes his knee is improved as compared to preoperative condition. He does have constant suprapatellar knee discomfort which, however, is relatively mild. He has jets of pain in the in feromedial leg and the lateral thigh, which are intermittent and fleeting, and unrelated to use. Right knee shows no tenderness, no erythema, no warmth, and no reduced VMO tone (vastus medialis oblique, a quadriceps muscle on the inside front of the thigh just above the knee). His ROM in flexion was noted from 0 to 90 degrees with a fairly firm endpoint on flexion. Stable in extension with expected stability in mid flexion. He does have constant suprapatellar pain that is mild. X-rays imaging studies report reflects an impression of status post removal of hardware and right total knee arthroplasty, showing the right total knee in very good position.

The August 2016 VA assessment is largely consistent with the May 2016 post-operative progress report, both of which are further consistent the Veteran's VA treatment records. For example, a July 2016 orthopedic note reflects the Veteran's report that he exercises every morning to try to maintain what ROM he does have in his knee and his "Pain: 0 - No pain." An August 2016 note reflects that he still does exercise every morning but reported pain at 3 out of 10. In September 2016, it was noted that he is now retired and does handyman work around the house. Knee pain increased with walking, but decreased with rest. At that time, he reported that his pain at worst is at 3 out of 10. An October 2016 note reflects pain at 4 out of 10. In November 2016, the Veteran reported pain at 3 out of 10, while he denied any weakness. In December 2016, he denied any pain noted as "Pain 0 - No pain." In January 2017, he reported current pain at 4 out of 10, noting more constant than usual, but walking better than before. In February, March, and June 2017, his pain was noted at 3 out of 10, and at 2 out of 10 in November 2017. In June/December 2018, and July 2019, he reported pain at 4 out of 10. In September 2019, his pain was noted at 3 out of 10. In December 2019, he reported pain at 5 out of 10. And in February 2020, he reported pain at 3 out of 10.

Further, in February 2020, in response to the question about his pain history with "usual level of pain" (i.e., how pain feels most of the time), the Veteran responded with a "4." As compared to his September 2016 report of worst pain at 3 out of 10, the February 2020 response does show a progressive worsening but still within the lower midrange.

To this end, his VA treatment record reflect that the Veteran consistently exercised every morning, while doing handyman work around the house and tinkering in his garage. As such, the discussed evidence fails to show or even suggest the severity level of pain or weakness any greater than of an intermediate degree and well below, let alone most closely approximating, the most extreme disability picture comparable with an amputation or ankylosis in extremely unfavorable position.

The parties to the JMPR further reference the August 2016 VA examination "noting 'intermediate degrees of residual weakness, pain, or limitation of motion'" and the September 2021 VA examination "highlighting 'chronic residuals consisting of severe painful motion or weakness.'" With that, the parties to the JMPR further agreed that the Board must address "the inconsistent conclusions" presented in the 2016 and 2021 examinations. The Board will endeavor to do so.

Both the August 2016 and September 2021 VA examination reports were submitted on the standardized VA Disability Benefits Questionnaire (DBQ), reflecting the examiners' review of the Veteran's statements, medical history, treatment records, results of physical examinations, clinical impressions, findings, and conclusions. Upon examining the Veteran in August 2016, one examiner concluded at the time of that examination that the Veteran's total knee joint replacement residuals manifested with intermediate residual weakness, pain, or limitation of motion. Upon examination in September 2021, another examiner at the time concluded that the Veteran's total knee joint replacement residuals manifested with chronic residuals consisting of severe painful motion or weakness.

Notwithstanding the JMPR's characterizations of the August 2016 report as "noting" the conclusion and the September 2021 report as "highlighting" its conclusion, the copies of the examination reports before the Board plainly reflect the regular "x" marks in the corresponding blocks in both DBQs. Without any explanation of the rhetoric, the Board fails to see how exactly characterizing one report as "noting" and another as "highlighting" renders "the inconsistent conclusions."

Absent any other explanation, the Board also fails to see how the lone fact that the examination reports reflecting different conclusions as to the severity levels of the disability upon examinations more than five years apart may translate into "the inconsistent conclusion." As a matter of common knowledge, the clinical course of many disabilities is dynamic, which changes over time. Such a progression in the Veteran's case is apparent from comparing his September 2016 report of worst pain at 3 out of 10 to the February 2020 report of the usual
the corresponding blocks in both DBQs. Without any explanation of the rhetoric, the Board fails to see how exactly characterizing one report as "noting" and another as "highlighting" renders "the inconsistent conclusions."

Absent any other explanation, the Board also fails to see how the lone fact that the examination reports reflecting different conclusions as to the severity levels of the disability upon examinations more than five years apart may translate into "the inconsistent conclusion." As a matter of common knowledge, the clinical course of many disabilities is dynamic, which changes over time. Such a progression in the Veteran's case is apparent from comparing his September 2016 report of worst pain at 3 out of 10 to the February 2020 report of the usual levels of pain at 4 out of 10. This gradual progression is further apparent in light of the January 2021 Veteran's very own statement that his right knee "got worse" since the last examination in August 2016. However, the record is devoid of any persuasive evidence showing that such a worsening was beyond the intermediate degree prior to January 2021. By implication, there are no apparent discrepancies between intermediate levels as assessed in 2016 and severe levels as assessed in 2021.

The conclusion that the Veteran's right knee residuals are intermediate in August 2016 is wholly consistent with the discussed evidence of record. The conclusion that the residuals are severe over five years later is wholly consistent with the Veteran's report at the Board hearing that his right knee "got worse" since the last examination. This is the reason why the Board requested an evaluation of the more recent severity levels of his right knee in the first place.

In contrast to cases where the examination reports are inadequate or inaccurately reflect the severity levels of disability on examination, and the Board specifically requests retrospective evaluations, this case is devoid of any indicia that may place into doubt the conclusion that the severity of the Veteran's right knee was intermediate in August 2016, has progressively worsened over the next five years, and became severe by January 2021.

In cases, like this, where the evidence of record persuasively shows the dynamic rather than static nature of the disability on review, the same rating percentage is not assigned throughout the rating period on appeal. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). Instead, the Board must consider assigning different rating percentages for the different distinct stages during the rating period on appeal, a practice known as "staging" the ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999).

To that end, as discussed, per Veteran's very own report in February 2020, his usual levels of pain have been no greater than 4 out of 10, particularly given the actually documented reports over time reflecting pain fluctuation between 0 and 4. Likewise, the objectively evaluated clinical signs and symptoms, as assessed by his orthopedist and the VA examiner, to include weakness that has been determined to be no greater than slight, knee discomfort no greater than relatively mild, constant suprapatellar pain that is mild, jets of feromedial leg and the lateral thigh pain that are intermittent and fleeting, while endpoint on flexion is fairly firm with expected stability in mid flexion, stable in extension, negative instability testing, and the ROMs in flexion and extension between 5 and 85 degrees, are inconsistent with the very painful, harmful, or of great degree in 8-10 range of severity levels.

Based on this evidence, the Board has previously found, and continues to hold, that the evidence of record fails to support the legal basis for rating the Veteran's right knee disability in excess of 30 percent during the stage from April 1, 2016, to January 18, 2021. This conclusion is unaffected by the amended VA schedule for rating musculoskeletal disabilities, effective as of February 7, 2021, which is not for retroactive application.

No other material issues have been expressly raised by the parties to the JMPR, the Court, the Veteran, and his representative, or reasonably raised by the evidence of record. By implication, the Board has nothing else to address, apart offering a few closing remarks.

Again, rather unfortunately, the Veteran failed to attend his medical examination that potentially may have provided a more favorable disposition of his appeal, to include the award of a TDIU rating. If the Veteran wishes to pursue this claim and is willing to attend VA examinations, he is encouraged to contact VA to explore his options, as well as to consult with his representative.

Otherwise, although the Board did not initially explain the difference between the "intermediate" and "severe" levels of pain or weakness, the Board felt that it was readily apparent then as it should be
the Veteran, and his representative, or reasonably raised by the evidence of record. By implication, the Board has nothing else to address, apart offering a few closing remarks.

Otherwise, although the Board did not initially explain the difference between the "intermediate" and "severe" levels of pain or weakness, the Board felt that it was readily apparent then as it should be vividly apparent now that the Veteran's usual levels of pain at 3-4 out 10 during this stage fall within the lower the midrange of 4-7 and well below 8, 9, or 10. Further absent any objective clinical evidence of weakness any greater than slight, no objective evidence of instability upon clinical evaluations, noncompensable ROMs between 5 and 85 degrees, neurological and skin abnormalities rated separately and not on review here, and no other clinical signs or symptoms attributable to the Veteran's right knee disability, are below the extreme levels commensurate with an amputated or ankylosed limb, which left the Board without any legal basis to assign a rating for the total right knee replacement residuals in excess of 30 percent.

Of final note, the Court has consistently held that "the parties [to the JMPR] must give clear direction to the Board of the errors that they agree are raised by the record and specify what further action the Board must take with respect to the claim." Carter v. Shinseki, 26 Vet. App. 534, 547 (2014). To that end, the Court also instructed attorneys, for both the Secretary and appellants, to "say what [they] mean and mean what [they] say." Robinson v. Mansfield, 21 Vet. App. 545, 554 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009).

Unfortunately, beyond pointing out two different medical opinions and dubbing them, as if mutually exclusive, "the inconsistent conclusions," the parties to the JMPR offered no explanation as to what exactly is inconsistent between those conclusions and what inconsistencies the Board must address and resolve, which ultimately left the Board with the directive to address those conclusions, as the Board has done but found no inconsistences between the two examinations. Rather, both are largely consistent with the evidence of record viewed as a whole, which persuasively shows that the Veteran's total right knee replacement residuals have gradually progressed from intermediate in August 2016 to severe in January 2021.

Accordingly, the appeal is denied.

MATTHEW W. BLACKWELDER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Alex Bardin, 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.

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