Citation Nr: 1301676 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 06-01 149 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. What initial evaluation is warranted for right patellar fracture residuals? 2. What initial evaluation is warranted for left patellar fracture residuals? 3. What initial evaluation is warranted for hyperextension of the right knee? 4. What initial evaluation is warranted for hyperextension of the left knee? 5. What initial evaluation is warranted for a right knee scar? 6. What initial evaluation is warranted for a scar residual due to a partially severed left testicle? 7. What initial evaluation is warranted for lumbar degenerative disc disease? 8. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran served on active duty from May 2000 to January 2005. This appeal to the Board of Veterans' Appeals (Board) arose from a June 2005 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Columbia, South Carolina, which granted service connection for the disorders listed on the title page. Among other decisions, a decision review officer in a September 2005 rating decision assigned compensable ratings for lumbar degenerative disc disease and severed left testicle residuals. The Veteran only perfected an appeal of the issues noted on the title page. In December 2009, the Board denied entitlement to an initial compensable rating for residuals of a right knee surgical scar, and entitlement to an initial rating higher than 10 percent for residuals of a partially severed left testicle. The Board remanded the questions regarding the initial ratings warranted for bilateral knee disorders, and for lumbar degenerative disc disease to the RO via the Appeals Management Center (AMC), in Washington, DC. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In July 2010, the Secretary of Veterans Affairs submitted a Motion For Remand (Motion). In a July 2010 Order, the Court granted the Motion, vacated the December 2009 Board decision, and remanded the case to the Board for further appellate review consistent with the Motion. In February 2011, the AMC increased the rating for the Veteran's hypertension of the right knee to 20 percent, effective February 11, 2010. In June 2011, the Board remanded all of the Veteran's claims for further development, to include compliance with the Secretary's Motion. In December 2009, the Board referred the issues of entitlement to service connection for an emotional disorder secondary to multiple service connected disorders, and entitlement to a separate rating for a nerve injury due to a left testicle injury, for consideration by the Agency of Original Jurisdiction (AOJ). Despite that referral, those issues have yet to be addressed by the AOJ. Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issues of entitlement to increased initial ratings for the Veteran's various knee disabilities, entitlement to an increased initial rating for a scar of the left testicle, to include whether special monthly compensation is warranted, and entitlement to a total disability evaluation based on individual unemployability due to service connected disorders, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The right knee scar residual is not manifested by either a deep scar, or a scar that is unstable, painful, or limits right knee motion. 2. The Veteran's lumbar degenerative disc disease is not manifested by ankylosis or limitation of flexion to 30 degrees. CONCLUSIONS OF LAW 1. The schedular criteria for an initial compensable rating for a right knee surgical scar residual are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.10, 4.118, Diagnostic Codes 7801-7804 (2008). 2. The schedular criteria for a rating in excess of 20 percent for lumbar degenerative disc disease have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5003, 5235-5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As service connection, an initial rating, and an effective date have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) (2002) have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Consequently, there is no need to discuss VCAA notice compliance in detail. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. Specifically concerning the issue of an increased initial rating for a right knee scar, the Court instructed VA to obtain additional treatment records; VA has obtained treatment records from all treatment providers identified by the Veteran, and has thus complied with the Court's order. Regarding the issue of an increased rating for lumbar degenerative disc disease, the December 2009 remand instructed the RO/AMC to obtain additional private treatment records, and to provide a new examination; the RO/AMC complied with those instructions, obtaining the treatment records identified by the Veteran, and providing the Veteran with a new spine examination in February 2010. The RO also obtained a copy of the January 2010 letter sent to the Veteran and referenced in the June 2011 remand, and indicated consideration in the November 2012 supplemental statement of the case as to whether new evidence obtained following the June 2011 remand warranted a new examination. In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication. See 38 C.F.R. § 3.159(c). Initial Ratings Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7; see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function, however, will be expected in all instances. 38 C.F.R. § 4.21. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (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 v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). 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, 511-12 (1995). Where there is conflicting medical evidence, the Board may not ignore or disregard any medical professional's opinion, but may favor one medical opinion over by providing an adequate statement of reasons or bases. See Willis v. Derwinski, 1 Vet. App. 66, 70 (1991). A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In making all determinations, the Board must also fully consider the lay assertions of record. Buchanan, 451 F.3d at 1335. 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(a). Thus, a layperson is competent to report on the onset and continuity of his symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). For instance, a lay person may speak to etiology in those limited circumstances where a nexus is obvious merely through observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Right Knee Scar Scars are rated under the criteria for skin disorders. The Veteran's claim dates to his separation from service in 2005, and while his claim was pending, the regulations governing the rating of scars changed. Revised provisions for evaluating scars were enacted effective October 23, 2008. The new regulation provides that the revised provisions are applicable only to claims received on or after October 23, 2008, 73 Fed. Reg. 54708 (Sept. 23. 2008), or to those claims pending as of that date, but not yet rated, for which the Veteran has requested review under the revised criteria. See 77 Fed. Reg. 2909 (Jan. 19, 2012) (providing that VA's intention with the October 23, 2008 rating change had been that claims pending as of that date would be rated under the old (pre-October 23, 2008) criteria subject to the right of the claimant to request review under the revised criteria). The Veteran has not requested that the new criteria be applied to his claim. Accordingly, the revisions do not apply in the present case. Rather, the Veteran's claim will be considered solely under the criteria effective as of the date of the January 2005 claim, prior to the October 2008 changes; all citations included below for diagnostic codes applying to scars are to the 2008 regulations. Under the pre-October 2008 rating criteria, scars, other than the head, face, or neck, that are deep or that cause limited motion in an area or areas exceeding 6 square inches (39 sq. cm.) are rated 10 percent disabling. Scars in an area or areas exceeding 12 square inches (77 sq. cm.) are rated 20 percent disabling. Note (2) to Diagnostic Code 7801 provides that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801. Scars, other than the head, face, or neck, that are superficial and nonlinear and in an area or areas exceeding 144 square inches (929 sq. cm.) are rated 10 percent disabling. 38 C.F.R. § 4.118, Diagnostic Code 7802. A superficial scar is one not associated with underlying soft tissue damage. Id. at Note (2). A superficial scar that is unstable warrants a 10 percent rating. 38 C.F.R. § 4.118, Diagnostic Code 7803. An unstable scar is one where there is a frequent loss of covering of skin over the scar. Id. at Note (1). A superficial scar that is painful on examination warrants a 10 percent rating. 38 C.F.R. § 4.118, Diagnostic Code 7804. And finally, Diagnostic Code 7805 applies to scars that cause limitation of function. 38 C.F.R. § 4.118, Diagnostic Code 7805. The April 2005 scars examination report notes that, by way of history, the Veteran underwent surgery in September 2001 for a right patella fracture. The nature of the fracture required the insertion of pins. Physical examination revealed a vertical scar 16 centimeters x 1 centimeter large. There was no pain on examination, no adherence to underlying tissue, and no elevation or depression. The texture was regular and the skin intact. The color of the scar was consistent with the rest of the knee. Examination for edema was negative. The scar was assessed scar as superficial. The diagnosis was right knee scar. At a September 2005 scars examination, the scar was noted to be 13 centimeters in length and linear. There was no pain upon palpitation. The scar was not deep or adherent to underlying tissue. The texture of the scar was smooth, and there was no inflammation, edema, or keloid formation. There was some decreased sensation in this area. As the findings on clinical examination shows the Veteran's right knee scar is superficial, is less than 929 square centimeters in area, does not cause limitation of motion, is not unstable, and is not painful, there is no factual basis for compensable rating. Thus, the Board finds the Veteran's right knee surgical scar residual more nearly approximates a noncompensable rating. 38 C.F.R. §§ 4.1, 4.7, 4.118, Diagnostic Code 7804. The benefit sought on appeal is denied. Lumbar Degenerative Disc Disease 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. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or-as concerns the prior spine rating criteria, may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45. Significantly, however, under the General Rating Formula for Diseases and Injuries of the Spine the criteria are controlling regardless of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 38 C.F.R. § 4.71a. There are higher ratings available under the rating criteria for intervertebral disc syndrome, but the Veteran has never been diagnosed with intervertebral disc syndrome, or been shown to have any incapacitating episodes. 38 C.F.R. § 4.71a, DC 5243. The Veteran has been provided two post-service VA examinations for his spine, the first in April 2005, and the second in February 2010. None of his medical records suggest that he has been diagnosed with ankylosis of the spine. Therefore, the only evidence that could support a higher rating for a lumbar spine disability would be a limitation of flexion to 30 degrees. Neither VA examination report indicated that the Veteran's flexion of the thoracolumbar spine is limited to 30 degrees. The April 2005 examination showed that he had forward flexion to 40 degrees without pain, and to 50 degrees with pain. His range of motion was not affected by repetitive activity, and was not additionally limited by pain, fatigue, weakness, or lack of endurance. At his February 2010 examination, the Veteran stated that he had no radiation of back pain, although at times it affected his ability to walk. He had not been prescribed bed rest. Lumbar flexion was to 74 degrees, without pain throughout until the end of the range. His range of motion was not additionally limited following repetitive movements. Straight leg raises were negative bilaterally, and he had 5/5 strength in his lower extremities, with normal symmetric deep tendon reflexes and a normal gait. The examiner noted that an MRI of the lumbar spine from 2007 revealed degenerative disc disease at L1-L2 with degenerative changes in the L2 vertebral body and L1 vertebral body endplate. There was minimal compression of the thecal sac at L1-L2, but no neuroforaminal stenosis. Private medical treatment records include findings similar to those of the two examinations. A physical therapy note from August 2006 showed that he 75 percent of normal lumbar spine flexion, but did not indicate what the therapist considered to be "normal." An October 2006 therapy summery indicated that his "trunk" flexion was reduced by 30 percent. According to a November 2006 treatment note from Dr. Shallcross, the Veteran's lumbar flexion was limited to 40 degrees. A January 2007 physical therapy note indicated that his forward flexion of the spine was decreased by 25 percent. In February 2007, a private functional capacity evaluation addressing the Veteran's spine disability indicated that he had lumbar flexion to 60 degrees. Thus, the evidence does not demonstrate intervertebral disc syndrome, ankylosis of the spine, or limitation of lumbar flexion to 30 degrees. As such, a rating higher than 20 percent for lumbar degenerative disc disease is not warranted. 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5235-5243. In reaching this decision the Board considered the DeLuca decision. The Board finds that the General Rating Formula for Diseases and Injuries of the Spine applies with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 68 Fed. Reg. 51,454 -51,455 (Aug, 27, 2003). Moreover, it is also evident that during the pendency of the claim, there is no clinical evidence that spinal weakness, fatigue, or incoordination cause any additional functional loss. Therefore, the Board again finds no basis for an increased rating under DeLuca. The Veteran has not alleged any neurological symptoms related to his lumbar spine disability, and without medical evidence showing any such disability, there is no basis to assign separate ratings for any neurological impairment caused by the lumbar spine. The Board acknowledges the private January 2007 evaluation report indicating that the Veteran complained of pain and a sensation of pins and needles radiating from the back to the right thigh, but the objective testing did not suggest any loss of sensation or other neurological impairment. He was diagnosed with back pain without significant radiculopathy. Other than that report, the totality of the evidence shows that the Veteran did not experience radicular symptoms. Both of his VA examinations, in April 2005 and February 2010, were negative for findings of neurological symptoms related to his back. A November 2006 note from Dr. Shallcross provided that the Veteran had shooting pain in his upper lumbar region that did not extend to either lower extremity. Dr. Shallcross found in March 2007 that there was no weakness in the lower extremities. Straight leg raises in March 2008 produced no radicular symptoms. The Board finds that there is no evidence of a radiculopathy disability associated with the lumbar degenerative disc disease. Similarly, there is no evidence of any bowel or bladder disability associated with the back disorder. The Veteran reported some incontinence in October and December 2007, which he noted to have resolved by December 2007. Despite those reports, the objective testing at that time showed that the Veteran did not have any neurologic symptoms related to his spine disability, and there is no evidence to suggest that any incontinence was related to his degenerative disc disease. No medical provider ever suggested that any passing/transient symptoms of incontinence were related to a spine disability. Further, Dr. Shallcross had specifically found in November 2006 and February 2007 that the low back disability did not cause bowel or bladder disability. The Board has considered the benefit of the doubt rule with regard to the claims adjudicated in this decision, but as the preponderance of the evidence is against the claims, the rule is not for application. Gilbert, 1 Vet. App. at 53. Extraschedular Consideration The Board has also considered whether the Veteran's disabilities present an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); see also Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). In this case there are no exceptional or unusual factors with regard to the Veteran's right knee scar or his lumbar degenerative disc disease. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) (providing that the "rating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's lumbar disability level and symptomatology and provides for more severe symptoms than shown by the evidence during the period in question. There is no suggestion that the Veteran has required periods of hospitalization. To the extent that his spine disability has caused interference with his employment, the Veteran's claim for total disability evaluation based on individual unemployability due to service connected disorders is being remanded for development and consideration. In short, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. ORDER Entitlement to an initial compensable rating for right knee surgical scar residual is denied. Entitlement to an initial rating in excess of 20 percent for lumbar degenerative disc disease is denied. REMAND The issues of entitlement to increased initial ratings for the Veteran's knee disabilities, including the bilateral residuals of patellar fractures and bilateral hyperextension disabilities, and entitlement to an increased initial rating for a disability of the left testicle, must be remanded because prior remand instructions have not been complied with by the RO/AMC. The issue of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders must be remanded for development and examination. The Court has held that a remand by the Board confers on the Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The first Stegall violation concerning the Veteran's claim derives from the December 2009 remand. As to his knee disabilities, the remand instructed that, in providing the Veteran an examination, [i]n addition to addressing the range of knee motion, the examiner is to specifically address the extent, if any, of functional loss of use of either or both knees due to pain/painful motion, weakness or premature fatigability, incoordination, limited or excess movement, etc., including at times when the Veteran's symptoms are most prevalent - such as during flare-ups or prolonged use. If possible, these findings should be portrayed in terms of degrees of additional loss of motion. The February 2010 examiner failed to address any impact of weakness, fatigability, incoordination, or limited or excess movement, and did not address the issue of flare-ups of the knee disabilities. As the examination did not comply with the Board's remand order, a new examination is warranted. In the Board's June 2011 remand, following the orders of the Court, the Board instructed that the AOJ "will specifically address whether the appellant is entitled to special monthly compensation for the loss of use of a creative organ," relevant to his in-service testicular injury (emphasis in original). While VA did obtain a new examination sufficient to rate the Veteran's disability, the AMC did not address the issue of special monthly compensation in the November 2012 supplemental statement of the case. As the AMC did not consider that issue, it must be remanded for consideration. The matter is also remanded for consideration of a total rating based on individual unemployability. See 38 C.F.R. § 4.16 (2012). The United States Court of Appeals for Veterans Claims (Court) has held that entitlement to a TDIU is an element of all claims for a higher initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). A claim of entitlement to individual unemployability due to service connected disorders is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for individual unemployability is raised as part of an increased rating claim only when the Roberson requirements are met). In determining whether a Veteran is entitled to a total disability evaluation based on individual unemployability due to service connected disorders, consideration is given to his level of education, special training, and previous work experience, but not to his age or impairment caused by disabilities that are not service connected. See 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2012). For VA purposes, the term unemployability is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2317 (1992). To receive a total disability evaluation based on individual unemployability due to service connected disorders, the Veteran's service-connected disabilities, standing alone, must be sufficiently severe to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Court also clarified in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), that the disability rating, itself, is recognition that industrial capabilities are impaired. Indeed, according to 38 C.F.R. § 4.1, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. So above and beyond this, the record must reflect some factor that takes a particular case outside the norm in order for a claim for individual unemployability benefits to prevail. As the Court further explained in Van Hoose, the mere fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. The Veteran missed months of time from work due to his spine and knee disabilities during the course of this appeal. The April 2005 VA examiner specifically opined that his service-connected knee and spine disabilities affected his ability to obtain and maintain employment in his usual profession. Further, in August 2008, the Veteran stopped working, albeit to return to school. His current employment status is not clear. The Board finds that the facts of this case raise a claim of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders. The Veteran has not been provided with VCAA notice concerning a claim of entitlement to total disability evaluation based on individual unemployability due to service connected disorders claim, or an application for a total disability evaluation based on individual unemployability due to service connected disorders (VA Form 21-8940), and on remand should be provided with appropriate notice and the applicable forms. The Court has held that in a claim of entitlement to total rating based on individual unemployability, the duty to assist requires that VA obtaining an examination which includes an opinion on what effect the appellant's service-connected disability has on his ability to work. Friscia v. Brown, 7 Vet. App. 294, 297 (1994); see also 38 U.S.C.A. § 5107(a); 38 C.F.R. §§ 3.103(a), 3.326, 3.327, 4.16(a) (2012). The record does not currently include an adequate opinion as to whether the service-connected disabilities alone would preclude gainful employment for which the Veteran would otherwise be qualified. Therefore, in conjunction with an examination for the knees that is being ordered, the question of the Veteran's employability must be addressed. The Board notes that even if the Veteran is unsuccessful on his other remanded claims, and thus he would not meet the schedular criteria of 38 C.F.R. § 4.16(a) prior to February 2010, his claim could be considered under 38 C.F.R. § 4.16(b) for that time period if it is established he was indeed incapable of obtaining and maintaining substantially gainful employment on account of his service-connected disabilities alone. The Board also points out that the Veteran's claim for a total disability evaluation based on individual unemployability due to service connected disorders is inextricably intertwined with his claims for increased initial ratings for his knees and his left testicle disability. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review meaningless and a waste of judicial resources, the two claims are inextricably intertwined); see also Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with all applicable VCAA notice with regard to his claims of entitlement to service connection for an emotional disorder secondary to multiple service connected disabilities, entitlement to service connection for residuals of a nerve injury secondary to a left testicle injury, and entitlement to a total disability evaluation based on individual unemployability due to service connected disorders. Thereafter, the appellant must be provided a reasonable period of time within which to respond. 2. Ask the Veteran to complete a formal application of e to of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders. 3. After fulfilling any duty to assist raised by the record, adjudicate the claims of entitlement to an emotional disorder secondary to multiple service connected disabilities, and entitlement to service connection for residuals of a nerve injury secondary to a left testicle injury. The appellant is hereby informed that the Board can only exercise appellate jurisdiction over these issues if he files a timely substantive appeal to any rating decision which may deny these benefits. 4. Thereafter, afford the Veteran a VA examination by an appropriate examiner to determine the current severity of all service connected disorders, and the issue of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders. All indicated diagnostic tests should be conducted. The examiner is to be provided access to the claims folder, a copy of this remand, and Virtual VA. The examiner must specify in the report that the claims file and Virtual VA records have been reviewed. In accordance with the latest worksheets for rating knee disabilities, the examiner is to provide a detailed review of the Veteran's pertinent medical history, his current complaints and the nature and extent of any knee disability. A complete rationale for any opinions expressed must be provided. In addition to addressing the range of knee motion, the examiner is to specifically address the extent, if any, of functional loss of use of either or both knees due to pain/painful motion, weakness or premature fatigability, incoordination, limited or excess movement, etc., including at times when the Veteran's symptoms are most prevalent - such as during flare-ups or prolonged use. If possible, these findings should be portrayed in terms of degrees of additional loss of motion. The examiner must address the nature of any impairment in the appellant's ability to work due to his various service-connected disabilities. If the appellant is unemployed, the examiner must opine whether it is at least as likely as not, i.e., is there a 50 percent or greater probability, that his service-connected disabilities alone preclude the Veteran from obtaining and maintaining substantially gainful employment. 4. The Veteran is to be notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 5. After the development requested has been completed, the RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. The AMC/RO must ensure that the examiner documented his or her consideration of Virtual VA. If any report is deficient in any manner, the RO must implement corrective procedures at once. 6. Then review the Veteran's claims de novo in light of the additional evidence obtained. In readjudicating the claims, the RO will specifically address whether the appellant is entitled to special monthly compensation for the loss of use of a creative organ. If any claim is not granted to his satisfaction, send him and his representative a supplemental statement of the case and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the 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. 2012). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs