Citation Nr: 1300952 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 09-08 237 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for chondromalacia of the right knee patella. 2. Entitlement to a total disability rating based on individual unemployability due to a service-connected disability (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from August 2003 to August 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama. Jurisdiction of this case was subsequently transferred to the VA Regional Office in Boise, Idaho (RO). The Veteran's substantive appeal contains a request for a travel board hearing. The claims file reflects that the RO notified the Veteran that he had been scheduled in April 2012 for a hearing before a Veterans Law Judge. The claims file notes that the Veteran failed to report for the hearing, and the notification letter has not been returned as undeliverable. The Veteran has not explained his failure to report or requested rescheduling of the hearing. The request for a travel board hearing is therefore considered to be withdrawn pursuant to 38 C.F.R. § 20.702(d) (2012). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that VA must address the issue of entitlement to a TDIU in a claim for a higher rating when the issue of unemployability is raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In the Veteran's March 2008 notice of disagreement, he reported that he had been unable to work because of his service-connected right knee disability. In addition, the January 2008 VA examiner noted that the Veteran was unemployed at the time of the examination. As such, the Board finds the issue of entitlement to a TDIU has been raised by the record. Thus, under Rice, the Board has jurisdiction over the TDIU claim and for the purpose of clarity has separately captioned the issue on the title page. The issue of entitlement to service connection for a left knee disability, claimed as secondary to service-connected chondromalacia of the right knee patella, has been raised by the record but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT The competent evidence of record does not demonstrate that, at any time during the rating period on appeal, the Veteran had moderate recurrent subluxation or lateral instability of the right knee; compensable flexion or extension of the right knee, ankylosis of the right knee; dislocated or removal of semilunar cartilage of the right knee; or impairment of the right tibia and fibula. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 10 percent for chondromalacia of the right knee patella have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5257 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable AOJ decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In March 2006, the Court issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (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 of the disability. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and/or an effective date will be assigned if service connection is awarded. Here, the Veteran is appealing the initial rating assignment. In this regard, because the February 2008 rating decision granted the Veteran's claim of entitlement to service connection, said claim is now substantiated. The Veteran's filing of a notice of disagreement as to the initial rating assigned does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). 38 C.F.R. § 3.159(b)(3). Rather, the Veteran's appeal as to the initial rating assigned triggers VA's statutory duties under 38 U.S.C.A. § 5104 and § 7105 (West 2002), as well as regulatory duties under 38 C.F.R. § 3.103 (2012). Under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," a January 2009 statement of the case set forth the relevant diagnostic codes for rating the disability at issue and included a description of the rating formulas for the current evaluation and for all other higher evaluations. The Veteran was thus informed of what was needed not only to achieve the next higher schedular rating but also to obtain all schedular ratings above that assigned. Therefore, the Board finds that the Veteran has been informed of what was necessary to achieve a higher rating for the service-connected disability at issue. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). Duty to Assist With regard to the duty to assist, the Veteran's claims file contains the service treatment records, VA examination reports, and the Veteran's statements. The Board has carefully reviewed the record and concludes that there has been no identification of further available evidence not already of record. VA examinations with respect to the Veteran's claim were conducted in January 2008 and May 2010. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this case, the Board finds that the May 2010 VA examination was adequate as it was predicated on the results of an adequate and complete physical examination. Although the examination did not include a review of the Veteran's claims file, his medical records were reviewed. Additionally, clinical findings pertinent to the applicable criteria for rating the Veteran's increased evaluation claim were provided. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). Accordingly, the Board finds that VA's duty to assist with respect to obtaining an examination or opinion on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board finds that all relevant facts have been properly and sufficiently developed in this appeal, and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Legal Analysis With respect to the Veteran's claim, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). In addition, a disability rating may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. 38 C.F.R. § 4.1 (2012). Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected right knee disability, characterized as chondromalacia patella, has been rated by the RO pursuant to Diagnostic Code 5257 for recurrent subluxation or instability. See 38 C.F.R. § 4.71a. Under this diagnostic code, slight recurrent subluxation or instability of the knee is rated as 10 percent disabling; moderate recurrent subluxation or instability of the knee is rated as 20 percent disabling; and severe recurrent subluxation or instability of the knee is rated as 30 percent disabling. Diagnostic Code 5257. As x-ray findings do not establish degenerative arthritis, Diagnostic Code 5003 is not applicable. 38 C.F.R. § 4.71a. Ankylosis, i.e., the fixation of the right knee, is neither alleged, nor shown; consequently, 38 C.F.R. § 4.71a, Diagnostic Code 5256 does not apply. As x-ray findings of record do not show evidence of dislocated semilunar cartilage or impairment of either the right tibia or fibula, a higher rating under Diagnostic Code 5258 or Diagnostic Code 5262 cannot be awarded. Diagnostic Code 5258 is not applicable as the Veteran is not demonstrated to have dislocated semilunar cartilage, with frequent episodes of "locking," pain, and effusion into the joint. Likewise, 38 C.F.R. § 4.71a, Diagnostic Code 5262 is not for application in the absence of service-connected tibia and fibula impairment. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. Id.; Esteban v. Brown, 6 Vet. App. 259 (1994). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr, 21 Vet. App. at 303 (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Pertinent to a claim for an increased rating, lay testimony is competent when it describes symptoms, which supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (holding that, in general, for the need for a VA examination to arise, a claimant would only need submit his competent testimony that symptoms, reasonably construed as related to the service-connected disability, have increased in severity since the last evaluation). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995); see Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). In this case, the Board finds no reason to doubt the competency and credibility of the medical evidence collected in the course of the VA examinations, discussed below, and provides it significant weight in determining the Veteran's level of disability. On the Veteran's June 2007 VA Form 21-526, he stated that he injured his right knee while working out in the gym on Fairchild Air Force Base in 2006. The Veteran reported that eight months after the injury he was only able to run for approximately one minute without knee pain. In an October 2007 written statement, the Veteran asserted that his knee had never healed because of his work duties, which included climbing stairs and putting stress and pressure on his knee. He stated that he still had some of the same pains and symptoms as when he first injured his knee. The Veteran asserted that he had tried to jog within the last month but that his left knee gave out; in this respect, he reported that because he was unable to distribute his weight correctly, his right knee was causing problems with his left knee. The Veteran asserted that he had been unable to run or jog since the injury and that walking for long periods of time caused pain to both of his knees. He stated his right knee still felt very unstable. In December 2007, the Veteran wrote that both of his knees ached at night while he was sleeping if he had placed a lot of pressure on his knees during the day. He reported that he still could not run or jog without his knees giving out or aching. On VA examination in January 2008, the Veteran denied a history of hospitalization or surgery, trauma to the joints, and neoplasm. Assistive aids were not needed for walking, and there were no constitutional symptoms of arthritis or incapacitating episodes of arthritis. The Veteran reported being able to stand for up to one hour and being able to walk more than a quarter of a mile but less than one mile. The Veteran denied any deformity, episodes of dislocation or subluxation, locking episodes, and inflammation. He reported giving way, instability, stiffness, and weakness, with moderate flare-ups of joint disease occurring weekly and lasting three to seven days. The Veteran felt that the extent of the effects of the flare-ups on his limitation of motion was 55 to 65 percent. On physical examination, the Veteran's gait was normal, and there was no evidence of abnormal weight bearing. Range of motion of the right knee was zero to 130 degrees; passive range of motion was zero to 130 degrees; range of motion against strong resistance was zero to 130 degrees; and there was no pain or additional limitation of motion on repetitive use. There was no loss of a bone or part of a bone, no inflammatory arthritis, and no joint ankylosis. The Veteran's right knee was productive of tenderness but no crepitation, no mass behind the knee, no clicks or snaps, no grinding, no instability, no patellar abnormality, and no meniscus abnormality. There were no bumps consistent with Osgood-Schlatter's disease. On x-ray examination, no acute osseous abnormalities were identified. The VA examiner diagnosed chondromalacia patella right knee. The Veteran was not employed at the time of the examination. The Veteran's right knee disability had a moderate effect on exercise and sports but did not affect chores, shopping, recreation, traveling, feeding, bathing, dressing, toileting, or grooming. In his March 2008 notice of disagreement, the Veteran repeated his assertions that he was unable to run or jog because his knee would become very sore or give out. He stated that he was only able to stand for an hour by putting all of his body weight and pressure on his left knee. The Veteran asserted he was unable to work due to the stress it placed on his right knee and the pain it caused. He stated that when his right knee started to swell and feel sore, the only thing that he could do was sit down. The Veteran reported that on a good day, he had zero to 130 degrees of extension without pain; good days were noted as those during which he did nothing more than rest his knee. He reported that due to the pain, he dragged his knee while walking. The Veteran also noted that his original claim had included symptoms of tendonitis as his knee was always inflamed and irritated. On his March 2009 Form 9, the Veteran reported that his right knee was still weak, somewhat unstable, and that differences in the weather caused additional discomfort. He stated that these symptoms had caused him to change his gait and place the majority of his weight on his left knee. The Veteran underwent an additional VA examination in May 2010. The Veteran reported that he was still unable to run or jog for more than a few minutes until the onset of pain in the medial aspect of the right knee. He reported that his knee felt unstable and became stiff after prolonged walking or sitting. Current treatment included intermittently wearing an elastic sleeve knee brace. The Veteran denied a history of hospitalization, surgery, and neoplasm. There was a history of trauma to the right knee in 2006. The Veteran denied any deformity; giving way; weakness; incoordination; decreased speed of joint motion; episodes of dislocation or subluxation; locking episodes; effusions; symptoms of inflammation; and flare-ups of joint disease. The Veteran reported symptoms of instability, pain, and stiffness and asserted that his condition affected the motion of the joint. There were no constitutional symptoms of arthritis and no incapacitating episodes of arthritis. The Veteran was able to stand for 15 to 30 minutes and walk one to three miles. On physical examination, the Veteran's gait was normal, and there was no evidence of abnormal weight bearing, loss of a bone or part of a bone, or inflammatory arthritis. There was evidence of tenderness, crepitation, and patellar abnormality. The VA examiner found no bumps consistent with Osgood-Schlatter's disease; no mass behind the knee; no clicks or snaps; no grinding; no instability; no meniscus abnormality; no abnormal tendons or bursae; and no other knee abnormalities. There was objective evidence of pain with active motion; flexion was zero to 140 degrees; and extension was normal. There was objective evidence of pain following repetitive motion but no additional limitations after three repetitions of range of motion. At the time of the examination, the Veteran had been employed full-time as a technical assistant for one to two years and had not missed any work in the past year. The VA examiner diagnosed patellofemoral syndrome right knee and stated the disability had significant effects on the Veteran's usual occupation, which involved stiffness with prolonged sitting. The VA examiner found the Veteran's right knee had a severe effect on sports; a moderate effect on exercise; a mild effect on chores, shopping, recreation, traveling, and driving; and no effect on feeding, bathing, dressing, toileting, and grooming. In a November 2012 informal hearing presentation, the Veteran's representative repeated the Veteran's assertions that he had symptoms of pain with movement, weakness, and instability and that the Veteran's knee disability had altered his gait. The representative also presented the Veteran's complaints of supporting most of his weight on his left leg and being physically affected by climate changes. Based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim for an initial evaluation in excess of 10 percent for chondromalacia of the right knee patella. In order to receive a rating higher than 10 percent for the service-connected chondromalacia of the right knee patella based on recurrent subluxation or lateral instability, the evidence must show more than slight recurrent subluxation or lateral instability (Diagnostic Code 5257). As previously mentioned, the application of Diagnostic Codes 5003, 5256, 5258, and 5262 on these facts is not warranted. A careful review of the evidence in this case fails to show the presence of a disability picture that more closely resembles one of moderate recurrent subluxation or lateral instability. In January 2008, the Veteran denied any episodes of dislocation or subluxation. Although he reported giving way, instability, stiffness, and weakness, on physical examination there was no instability, no evidence of abnormal weight bearing, and range of motion was normal. In May 2010, the Veteran denied any deformity, giving way, weakness, incoordination, episodes of dislocation or subluxation, locking episodes, and effusions. Although the Veteran reported symptoms of instability, pain and stiffness, on physical examination there was no instability. Here, the Board finds probative the VA clinical examination findings that showed no instability as well as the Veteran's own denial of episodes of dislocation or subluxation. Additionally, the right knee range of motion noted on VA examinations in January 2008 and May 2010 does not reflect leg flexion limited to 45 degrees, or limitation of leg extension to 10 degrees, so as to warrant separate compensable ratings based on limitation of motion. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261 (2012). Thus, on these facts, an initial evaluation in excess of 10 percent is not warranted for the Veteran's service-connected chondromalacia of the right knee patella. Also, there is no evidence of record that would warrant a rating in excess of that assigned at any time during the period pertinent to this appeal. 38 U.S.C.A. § 5110 (West 2002); see also Hart, 21 Vet. App. at 509. While there have been day-to-day fluctuations in the manifestations of the Veteran's service-connected disability, the evidence shows no distinct periods during which this disability has varied to such an extent that a rating greater or less than the current evaluation would be warranted. Cf. 38 C.F.R. § 3.344 (2012) (VA will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations). The Board recognizes the Veteran's statements attesting to his symptoms of pain, weakness, and instability and the effects of pain on his daily life. The Board notes that lay persons can attest to observable symptomatology. In addition, the Veteran's statements describing his symptoms are considered to be competent evidence. Jandreau, 492 F.3d at 1377; Layno v. Brown, 6 Vet. App. 465, 469 (1994), see also Buchanan, 451 F.3d 1331. However, these statements must be viewed in conjunction with the objective medical evidence as required by the rating criteria. In this regard, the objective medical evidence demonstrate consideration of the Veteran's statements and the information necessary to rate the Veteran's disability under the rating criteria. Additionally, the Veteran's statements are often contradicted by the medical evidence of record and his own statements. For example, in March 2008, the Veteran asserted that he experienced persistent inflammation and irritation. However, the Veteran denied any inflammation on VA examination in January 2008. Further, on physical examination there was no crepitation, no mass behind the knee, no patellar abnormality, and no meniscus abnormality. Additionally, despite his repeated assertions that his symptoms had caused him to alter his gait, the Veteran's gait was deemed normal by both VA examiners in January 2008 and May 2010. Again, although he reported giving way, instability, stiffness, and weakness in January 2008, on physical examination there was no instability. Furthermore, although the Veteran reported symptoms of instability, pain, and stiffness in May 2010, on physical examination there was no instability or other abnormalities. Consequently, when considering the overall evidence of record, including the Veteran's statements and medical evidence, the Board finds that the Veteran's service-connected chondromalacia of the right knee patella does not warrant an initial evaluation in excess of 10 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012); see also Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the Rating Schedule is inadequate to evaluate a veteran's disability picture that has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, concerning the Veteran's service-connected right knee disability now on appeal, the evidence in this case does not show such an exceptional disability picture that the available respective schedular evaluation is inadequate. The Board further observes that there is no evidence in the medical records of an exceptional or unusual clinical picture. The record does not show that the Veteran required frequent hospitalization for problems associated with his right knee. Also, while observing that the record raises the issue of entitlement to a TDIU (see Remand portion of this decision below), the evidence does not demonstrate that the Veteran's service-connected right knee disability has markedly interfered with employment. Therefore, the Board finds the threshold determination for a referral for extraschedular consideration was not met and, consequently, the Veteran is not entitled to a referral for extraschedular ratings pursuant to 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against an evaluation in excess of that already assigned throughout the pendency of this appeal, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An initial evaluation in excess of 10 percent for chondromalacia of the right knee patella is denied. REMAND The Court has held that a TDIU claim is part and parcel of an increased rating claim when raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). As a result, the Board has jurisdiction to consider the Veteran's possible entitlement to a TDIU when the issue is raised by assertion or reasonably indicated by the evidence and is predicated, at least in part, on the severity of the service-connected disability in question, regardless of whether the RO has expressly addressed this additional issue. See VAOPGCPREC 6-96 (Aug. 16, 1996); see also Caffrey v. Brown, 6 Vet. App. 377 (1994); Fanning v. Brown, 4 Vet. App. 225, 229 (1993); EF v. Derwinski, 1 Vet. App. 324 (1991). In this case, the Veteran has not filed a formal claim for a TDIU; however, in March 2008, the Veteran reported that he had been unable to work because of his service-connected right knee, and the January 2008 VA examiner noted that the Veteran was unemployed at the time of the examination. Additionally, the May 2010 VA examiner found the Veteran's right knee pain had significant effects on his usual occupation. Therefore, the Board finds the issue of entitlement to a TDIU has been reasonably raised by the evidence of record and should be adjudicated as part of the claim on appeal. Id.; see also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Bowling v. Principi, 15 Vet. App. 1 (2001). Accordingly, the issue of entitlement to a TDIU rating is remanded for appropriate action. Accordingly, the case is REMANDED for the following actions: 1. The RO should send the Veteran VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, for him to complete with instructions to return the form to the RO. 2. The RO should complete any additional evidentiary development necessary to adjudicate a claim for a TDIU, to specifically include collecting and verifying information concerning the Veteran's complete educational and occupational history. 3. When the development requested has been completed, adjudicate entitlement to a TDIU. If the benefit sought is not granted to the fullest extent, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter 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. 2012). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs