Citation Nr: 0628181 Decision Date: 09/08/06 Archive Date: 09/20/06 DOCKET NO. 05-13 095 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease and asbestosis. 2. Entitlement to service connection for a low back disability, claimed as secondary to a service-connected right knee disability. 3. Entitlement to an increased rating for right knee synovitis, status post medial meniscectomy, currently rated as 30 percent disabling. 4. Entitlement to a total rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Veteran represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The veteran served on active duty from June 1940 to September 1945. This matter came to the Board of Veterans' Appeals (Board) on appeal from a rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In a June 2003 rating decision, the RO denied service connection for degenerative joint disease of the lumbar spine, an increased rating for the veteran's service- connected right knee disability, and a total rating based on individual unemployability due to service-connected disability. In a March 2004 rating decision, the RO denied service connection for chronic obstructive pulmonary disease and asbestosis. The veteran duly appealed the RO's decisions, and in June 2006, he testified at a hearing chaired by the undersigned Veterans Law Judge at the RO. At the hearing, the veteran presented additional evidence in support of his appeal, along with a waiver of initial RO consideration of this evidence. See 38 C.F.R. § 20.1304 (2005). The issue of entitlement to a total rating based on individual unemployability due to service-connected disabilities is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The veteran worked as a welder during active service, an occupational specialty consistent with asbestos exposure. 2. The veteran's current chronic obstructive pulmonary disease and asbestosis cannot be disassociated from his in- service exposure to asbestos. 3. The evidence is in equipoise as to whether the veteran's low back disability is causally related to his service- connected right knee disability. 4. The veteran's service-connected right knee disability is manifested by severe arthritic changes, pain, weakness, and limitation of motion, productive of significant functional loss. CONCLUSIONS OF LAW 1. Chronic obstructive pulmonary disease and asbestosis were incurred during active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2005). 2. Degenerative joint disease of the lumbar spine is due to or the result of the service-connected right knee disability. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.310 (2005). 3. The criteria for a rating in excess of 30 percent for right knee synovitis, status post medial meniscectomy, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5020, 5260, 5261 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Duty to Notify Under the VCAA, VA is required to advise a claimant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR § 3.159(b)(1) (2005). As part of that notice, VA must inform the claimant of the information and evidence he is expected to provide, as well as the information and evidence VA will seek to obtain on his behalf. In addition, VA must advise a claimant to provide any additional evidence in his possession that pertains to the claim. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR § 3.159(b)(1) (2005). The United States Court of Appeals for Veterans Claims (Court) has provided additional guidance with respect to VA's VCAA notification obligations. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that under the notice provisions of the VCAA, a claimant must be provided notice of the evidentiary matters specified in statute and regulation before an initial unfavorable decision by the RO. In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the notice requirements of section 5103(a) apply generally to the following five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. In this case, in a December 2003 letter issued prior to the initial rating decision on his claims, the RO notified the veteran of the information and evidence needed to substantiate and complete a claim of service connection and a claim for an increased rating, and of what part of that evidence he was to provide and what part VA would attempt to obtain for him. The letter also generally advised the veteran to submit or identify any additional information that he felt would support his claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2005); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The RO reiterated this information in a subsequent VCAA letter issued in July 2004. In addition, in a June 2006 letter, the RO issued a letter which fulfilled the requirements delineated by the Court in Dingess/Hartman. Duty to Assist Under the VCAA, VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2005). In this case, the RO has obtained the veteran's service medical and personnel records, as well as all relevant post- service clinical records specifically identified by the veteran. 38 U.S.C.A. § 5103A(c) (West 2002); 38 C.F.R. § 3.159(c)(2), (3) (2005). The veteran has also been afforded VA medical examinations in connection with his claims. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2005). The Board finds that there is no indication of outstanding, relevant evidence. For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or development action is necessary. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2005). Factual Background The veteran's service medical records show that in November 1944, he sustained a right knee injury and was thereafter diagnosed as having a dislocation of the semilunar cartilage. The following month, he underwent arthroscopic surgery with excision of the right medial meniscus. The veteran thereafter continued to experience right knee symptoms of pain, swelling, limitation of motion, and weakness. He was medically discharged from service in September 1945 as a result of his right knee disability. The veteran's service medical records are negative for complaints or findings of chronic obstructive pulmonary disease, asbestosis, or a low back disability. The veteran's service personnel records show that he participated in the defense of Pearl Harbor during the Japanese attack on December 7, 1941. He thereafter continued his combat service and his duty stations included Guadalcanal, New Zealand, and New Caledonia. The veteran served as a welder, including repairing and fusing cracked metal parts. His personnel records indicate that he used welding irons and torches, and did soldering work. He was also trained as a pioneer, and his duties included preceding the main body of troops in order to remove road and traffic obstacles by demolition. Following his separation from service, the veteran submitted an application for VA compensation benefits, seeking service connection for a right knee disability. In an October 1945 rating decision, the RO granted service connection for synovitis of the right knee, status post meniscectomy, and assigned a 30 percent rating, effective from September 12, 1945. This 30 percent rating has remained in effect to date; thus, it is protected from reduction. 38 C.F.R. 3.951(b) (2005). In November 2002, the veteran filed a claim for an increased rating for his right knee disability. He also indicated that he had developed a low back disability as a result of his service-connected right knee disability. In connection with his claim, the veteran underwent VA medical examination in June 2003, at which he reported pain, swelling, periodic locking, and difficulty walking. The veteran reported that he wore a knee brace and occasionally used a cane. The examiner also noted that the veteran had a history of low back pain and had been diagnosed as having spinal stenosis. Examination of the right knee showed full extension to 115 degrees with crepitation. There was a well healed scar on the right knee. A Baker's cyst was also observed on the right knee. The diagnoses included post- traumatic degenerative arthritis of the right knee, status post right knee surgery, spinal stenosis, and degenerative joint disease of the lumbar spine. In June 2003, the veteran submitted a claim of service connection for a lung disability as a result of asbestos exposure. In support of his claim, the veteran submitted service personnel records showing that his primary military occupational specialty was welder. He also submitted post- service personnel records showing that he had worked as a welder in the Boston Naval Shipyard from 1951 to 1956. The RO thereafter obtained VA clinical records showing that in May 2003, the veteran underwent a CT scan of the chest which showed upper lobe scarring probably related to prior granulomatous disease, emphysematous changes in both lungs, and additional scattered scarring in both lungs. There were also bilateral pleural plaques, compatible with prior asbestos exposure. At a follow-up examination in November 2003, the veteran reported a history of gradually increasing shortness of breath and new onset hemoptysis. He reported a history of asbestos exposure, stating that he had worked in the navy yard for 5 years after the war, during which time he was required to wear much protective gear. The veteran was afforded a VA medical examination in January 2004, at which he reported a many year history of chronic shortness of breath, becoming worse in the last year and a half. After examining the veteran, the examiner diagnosed chronic obstructive pulmonary disease, history of asbestos exposure, chest CT scan consistent with asbestos exposure. In pertinent part, VA clinical records dated from December 2002 to January 2005 show treatment for various disabilities, including a low back disability and a right knee disability. In February 2003, the veteran reported low back pain, which he indicated had been present for the past three to four years. The examiner indicated that the veteran's pain was correlated with walking. In November 2004, the veteran was treated for right knee pain which he rated as a 7 on a pain scale of 1 to 10. Examination showed right knee range of motion from 8 to 114 degrees. The veteran ambulated with a limp. The impressions included severe right knee arthritis. The veteran thereafter underwent physical therapy. In an August 2004 letter, the veteran's VA physician indicated that the veteran was under treatment for multiple medical conditions, including osteoarthritis, spinal stenosis, and chronic obstructive pulmonary disease. He described the veteran's right knee arthritis as severe. He also noted that a CT scan of the veteran's chest had shown that the veteran had been exposed to asbestos. He also indicated that the combination of right knee, low back pain and shortness of breath from his lung disabilities restricted the veteran from engaging in any type of physical activity and he was only able to walk short distances. The VA physician noted that the veteran had become increasingly disabled over the past year. In an October 2005 letter, the veteran's VA physician indicated that the veteran continued to suffer from advanced osteoarthritis, which was particularly severe in the right knee. At his June 2006 hearing, the veteran described his right knee symptoms, including pain, limitation of motion, and functional loss. In fact, the veteran indicated that the pain in his knee became so severe at times that it led him to swear at his knee on occasion. The veteran also described his in-service asbestos exposure, noting that he had worked as a welder during service. He indicated that he used asbestos blankets and gloves in order to perform his duties. The veteran also testified that he worked in demolitions during service. He indicated that after the explosions, there was often a lot of debris in the air. After service, he indicated that he continued to work as a welder for approximately five years, before resigning from his job due to his knee symptoms. The veteran testified that as a result of his knee pain, he walked with a limp over the years, which eventually resulted in a low back disability. Service connection claims Law and Regulations Service connection may be granted for disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2005). Where a veteran served ninety days or more during a period of war and certain chronic diseases, including arthritis, become manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2005). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has held that where a service-connected disability causes an increase in, but is not the proximate cause of, a nonservice- connected disability, the veteran is entitled to service connection for that incremental increase in severity attributable to the service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Under applicable criteria, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (holding that a claimant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail). Analysis Service connection for chronic obstructive pulmonary disease and asbestosis. There is no specific statutory or regulatory guidance with regard to claims of service connection for asbestosis or other asbestos-related diseases. However, VA has issued guidelines for considering asbestos compensation claims. See VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21. The Court has held that VA must analyze claims of service connection for asbestosis or asbestos-related disabilities under the administrative protocols established by these guidelines. See Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). VA Manual M21-1, Part VI, para. 7.21 provides that inhalation of asbestos fibers can produce fibrosis and tumor, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion and fibrosis, and pleural plaques. See M21-1, Part VI, para 7.21(a). The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VA O.G.C. Prec. Op. No. 04-00. In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. In this case, the veteran's service personnel records clearly establish that the veteran's primary military occupational specialty during his approximately five-year period of active duty was as a welder. At his June 2006 Board hearing, the veteran gave very credible testimony regarding his in-service welding duties, noting that he often used asbestos gloves and blankets while welding. Based on this evidence, the Board finds that the record is sufficient to establish that the veteran was exposed to asbestos during service. The Board also notes that the veteran has been diagnosed as having a lung disability which is consistent with exposure to asbestos. See M21-1, Part VI, para 7.21(a). His VA physicians have also noted a lung disability consistent with exposure to asbestos. See e.g. May 2003 VA CT scan report. The Board notes that the veteran has acknowledged working at a shipyard for approximately five years after his separation from active service, during which time he may also have been exposed to asbestos. The record, however, is devoid of any medical opinion attributing the veteran's current lung disability solely to his post-service asbestos exposure, exclusive of his in-service asbestos exposure. In this case, whether the veteran's current lung disability is due to his in-service asbestos exposure, his post-service asbestos exposure, or a combination of the two may never be known to a certainty. However, certainty is not required. As noted above, under the benefit-of-the-doubt rule, for the veteran to prevail, there need not be a preponderance of the evidence in his favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. See Gilbert, 1 Vet. App. at 54. Given the evidence set forth above, such a conclusion cannot be made in this case. Thus, the Board finds that service- connection for chronic obstructive pulmonary disease and asbestosis is warranted. Service connection for a low back disability, claimed as secondary to a service-connected right knee disability. As set forth above, the veteran's service medical records are entirely negative for notations of a low back disability. Likewise, the post-service record is negative for notations of a low back disability within the first post-service year or for many decades after service separation. In fact, the first diagnosis of a low back disability in the medical evidence of record is not until 2003, more than 50 years after the veteran's separation from service. Moreover, there is no indication in the evidence of record that any medical professional has related the veteran's current low back disability to his active service or any incident therein. In view of the foregoing, the Board finds that service connection for a low back disability on a direct or presumptive basis is not warranted. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309 (2005). The veteran, however, claims that his current low back disability is causally related to his service-connected right knee disability. Specifically, he states that as a result of pain from his service-connected right knee disability, he limped for many decades, which threw off his gait and eventually resulted in a low back disability. As the record does not establish that the veteran possesses a recognized degree of medical knowledge, he lacks the competency to provide evidence that requires specialized knowledge, skill, experience, training or education, such as an opinion on causation. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, the Board observes that the record is entirely negative for any medical evidence attributing the veteran's current low back disability to any other cause. In fact, the record contains VA clinical records noting that the veteran walks with a limp favoring his right knee and that his low back pain was correlated with walking. Again, under the benefit-of-the-doubt rule, for the veteran to prevail, there need not be a preponderance of the evidence in his favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. See Gilbert, 1 Vet. App. at 54. Given the evidence of record, the Board cannot find that the preponderance of the evidence is against the claim. Thus, service connection for a low back disability is warranted. Increased rating claim Law and Regulations Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. 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. 38 C.F.R. § 4.7 (2005). Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2005). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (2005). The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45 (2005). The Court has held that functional loss, supported by adequate pathology and evidenced by visible behavior of the veteran undertaking the motion, is recognized as resulting in disability. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.10, 4.40, 4.45 (2005). The Court held in Francisco v. Brown, 7 Vet. App. 55, 58 (1994), that compensation for service-connected injury is limited to those claims which show present disability, and where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Analysis: The veteran also seeks an increased rating for his service-connected right knee disability. The RO has rated his disability as 30 percent disabling, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5020, pertaining to synovitis. Diagnostic Code 5020 provides that synovitis will be rated as degenerative arthritis on the basis of limitation of motion of the affected parts. Evaluations for limitation of flexion of a knee are assigned as follows: flexion limited to 60 degrees warrants a 0 percent rating, flexion limited to 45 degrees warrants a 10 percent rating, flexion limited to 30 degrees warrants a 20 percent rating, and flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Evaluations for limitation of extension of the knee are assigned as follows: extension limited to 5 degrees warrants a 0 percent rating, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, extension limited to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Normal range of motion for the knee is flexion to 140 degrees and extension to 0 degrees. 38 C.F.R. § 4.71, Plate II (2005). As noted above, the medical evidence of record does not document right knee motion limited to a degree warranting assignment of a rating in excess of 30 percent. For example, on VA medical examination in June 2003, range of motion was from zero to 115 degrees. In November 2004, range of motion of the veteran's knee was from 8 to 114 degrees. These findings do not warrant an increased rating under the criteria for limitation of flexion or extension pursuant to Diagnostic Code 5260 or 5261. In addition, the Board finds that the criteria for separate, compensable ratings under Diagnostic Codes 5260 or 5261 have not been met in the absence of evidence that leg flexion is limited to 45 degrees or more and that leg extension is limited to 10 degrees or more in either the right or left leg. Thus, neither separate, compensable ratings nor a rating higher than 30 percent is warranted under either Diagnostic Code 5260 or 5261. See VA O.G.C. Prec. Op. No. 9- 2004, published at 69 Fed. Reg. 59,990 (2004). The Board also notes that the provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to factors such as weakened movement, excess fatigability, swelling and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.10, 4.40, 4.45 (2005). Indeed, the RO has based the currently-assigned 30 percent rating on medical evidence showing that the veteran's disability is manifested by symptoms such as severe pain, weakness, and functional loss. The Board finds that the evidence of record reveals no additional factors which would restrict motion to such an extent that the criteria for a rating in excess of 30 percent would be justified. The Board notes that there are other diagnostic codes that potentially relate to impairment of the knee; the veteran is entitled to be rated under the diagnostic code which allows the highest possible evaluation for the clinical findings shown on objective examination. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Under Diagnostic Code 5256, pertaining to ankylosis of the knee, a 50 percent rating is assigned for ankylosis in flexion between 20 and 45 degrees. A maximum 60 percent rating is assigned for extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more. In this case, however, the medical evidence shows that the veteran's service-connected right knee disability is not manifested by ankylosis. Thus, a rating in excess of 30 percent is not warranted under this code. Diagnostic Code 5257 pertains to other impairment of the knee. Under this provision, a maximum 30 percent rating is warranted for severe impairment due to recurrent subluxation or lateral instability of the knee. No higher rating is warranted under this provision. Although application of Code 5257 in lieu of the criteria for limitation of motion would therefore not be advantageous to the veteran, the VA General Counsel has determined that a claimant with service-connected arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257 so long as the evaluation of knee dysfunction under both codes does not amount to prohibited pyramiding under 38 C.F.R.§ 4.14. See VA O.G.C. Prec. Op. No. 23-97 (July 1, 1997), 62 Fed. Reg. 63,604 (1997); and VA O.G.C. Prec. Op. No. 9-98 (Aug. 14, 1998), 63 Fed. Reg. 56,704 (1998). In this case, however, although the veteran reports episodes of locking, the record contains no objective indication of instability or subluxation. Absent objective evidence of additional disability due to instability or subluxation; a separate 10 percent rating is not warranted. Id. The Board has also considered the provisions of 38 C.F.R. § 3.321(b)(1), but notes that the veteran has not asserted, nor does the evidence suggest, that the regular schedular criteria are inadequate to evaluate his right knee disability. He has not claimed that his right knee disability, in and of itself, is productive of marked interference with employment, necessitates frequent hospitalization, or that the manifestations associated with this disability are unusual or exceptional. Thus, referral for consideration of extraschedular rating is not warranted. As the preponderance of the evidence is against the claim for a rating in excess of 30 percent for the veteran's right knee disability, the benefit-of-the-doubt doctrine is inapplicable, and an increased rating is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for chronic obstructive pulmonary disease and asbestosis is granted. Entitlement to service connection for degenerative joint disease of the lumbar spine, claimed as secondary to a service-connected right knee disability, is granted. Entitlement to an increased rating for right knee synovitis, status post medial meniscectomy, currently rated as 30 percent disabling, is denied. REMAND The veteran also seeks a total rating based on individual unemployability due to service-connected disabilities. A determination of entitlement to a total rating based on individual unemployability rests on impairment caused by service-connected disability. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a) (2005). In this case, the veteran is currently in receipt of a 30 percent rating for his right knee disability, a 10 percent rating for hemorrhoids, and a zero percent rating for residuals of malaria. These ratings alone do not meet the percentage standards set forth in 38 C.F.R. § 4.16(a). In light of the Board's decision above, however, the RO must now assign initial ratings for the veteran's service- connected low back disability and his service-connected chronic obstructive pulmonary disease with asbestosis. Consideration of the unemployability issue prior to that time is premature. Therefore, this issue is held in abeyance pending completion of the actions discussed below. See Hoyer v. Derwinski, 1 Vet. App. 208, 209-10 (1991). In view of the foregoing, this matter is REMANDED for the following action: After conducting any necessary development, the RO should assign initial disability ratings for the veteran's service-connected low back disability and his service-connected chronic obstructive pulmonary disease with asbestosis. Following the above, the RO should re- adjudicate the issue of entitlement to a total rating based on individual unemployability due to service-connected disabilities. If the benefit sought on appeal remains denied, the veteran and his representative should be furnished a supplemental statement of the case (SSOC) and given the opportunity to respond thereto. An appropriate period of time should be allowed for a response. The case should then be returned to the Board, if in order. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). ______________________________________________ Robert E. Sullivan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs