Citation Nr: 1304940 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 08-28 327 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to a rating higher than 30 percent for a left knee disability. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from September 1961 to September 1982. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which confirmed and continued a 30 percent rating for the Veteran's left knee disability that had been in effect since August 1, 2007, upon termination of a temporary 100 percent rating for this disability on account of a total knee replacement (arthroplasty). In support of his claim for a rating higher than 30 percent for this disability, he testified at a hearing at the RO in April 2010 before a Veterans Law Judge (VLJ) of the Board. This type of hearing is often and more commonly referred to as a Travel Board hearing. The VLJ of the Board that presided over that hearing subsequently, in March 2011, remanded the claim to the RO via the Appeals Management Center (AMC) to obtain all outstanding VA and private treatment records and to have the Veteran reexamined to reassess the severity of his left knee disability. The VLJ that presided over that hearing and who authored that remand since has retired from the Board, however. Because, by law, the VLJ that conducts a hearing must participate in any decision rendered in that appeal, the Veteran was informed of this in a September 2011 letter and given the opportunity to have another hearing before a different VLJ that would ultimately decide his appeal. See 38 U.S.C.A. § 7107(c); 38 C.F.R. §§ 20.707, 20.717. The letter indicated that, if he did not respond within 30 days from the date of the letter, the Board would assume he did not want another hearing and proceed accordingly. He did not respond within the next 30 days, at least as concerning whether he wanted another hearing. The statement he prepared and submitted in September 2011, instead, was in response to another letter and Supplemental Statement of the Case (SSOC) that the AMC had issued on remand in August 2011. His representative's more recent December 2012 statement (Informal Hearing Presentation (IHP)) also did not request another hearing. The Board therefore concludes the Veteran does not want another hearing. It further deserves mentioning that, during his hearing, the Veteran presented evidence of his unemployability on account of his left knee disability. He reiterated this in the statement he more recently submitted in September 2011, indicating he had been laid off from his job and that he believes they selected him because he had to sit down often while repairing system problems and since he requested help moving heavy objects. He added that now, while looking for work, he cannot apply if they want heaving lifting or extended standing. His hearing testimony and statement are tantamount to a claim of entitlement to a TDIU. In Roberson v. Principi, 251 F.3d 1378, 1384 (2001), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) held that once a claimant: (1)submits evidence of a medical disability, (2) makes a claim for the highest possible rating, and (3) submits evidence of unemployability, an informal TDIU claim is raised under 38 C.F.R. § 3.155(a). Similarly, in Rice v. Shinseki, 22 Vet. App. 447, 452-53(2009), the U. S. Court of Appeals for Veterans Claims (Court/CAVC) held that a request for a TDIU, whether expressly raised by a Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to a TDIU is based already has been found to be service connected, as part of a claim for increased compensation. And as the Court also explained in Rice, if the Board determines the derivative TDIU claim requires further development before being adjudicated, the appropriate disposition is to remand the TDIU claim. VA's Office of General Counsel also has indicated that remanding the derivative TDIU claim does not preclude the Board from going ahead and deciding the claim for a higher rating for the disability that formed the basis of the TDIU claim. See VAOPGCPREC 6-96 (Aug. 16, 1996) and VAOGCPREC 12-2001 (July 6, 2001). So this is what will occur here since the Board is deciding the claim for a higher rating for the left knee disability, but instead remanding the derivative TDIU claim. FINDING OF FACT The Veteran's left knee disability is manifested by chronic pain, decreased range of motion, and mild instability. CONCLUSION OF LAW The criteria are met for a higher 60 percent rating for this left knee disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5055 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act (VCAA) The VCAA provides that VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of the evidence (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist him in obtaining; and, (3) that he is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(b) (2012). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Ideally, this notice should be provided prior to an initial decision on the claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case (SOC) or supplemental SOC (SSOC), is sufficient to "cure" the timing defect in the provision of this notice. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370 (2006). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (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. See also 38 U.S.C. § 5103(a) (West 2002 & Supp. 2011). So compliance with the first Quartuccio element requires notice of all five of these elements of the claim, including the "downstream" disability rating and effective date elements. See id., at 486. But a VCAA notice error is not presumptively prejudicial, even when shown to have occurred, rather, must be judged on a case-by-case basis. And as the pleading party attacking the agency's decision, the Veteran, not VA, bears this evidentiary burden of proof of not only establishing error, but, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In a claim for an increased disability rating, the VCAA requires VA to notify the claimant that to substantiate the claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect the worsening has on employment. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(b) (2012); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1278 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes (DCs), which typically provide for a range in severity of a particular disability from 0 percent, i.e., noncompensable, to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the claimant may submit (or ask the VA to obtain) that are relevant to establishing his or her entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular claimant's circumstances; that is, VA need not notify a claimant of alternative DCs that may be considered or notify him of any need for evidence demonstrating the effect that the worsening of the disability has on the particular claimant's daily life. Vazquez-Flores, 580 F.3d at 1278. The Veteran's left knee disability has been service connected effectively since October 1, 1982. In years past, he has had a 10 percent rating for it, then a higher 20 percent rating, and eventually even higher 100 percent ratings, albeit just temporarily, initially as of June 29, 2006, under the provisions of 38 C.F.R. § 4.30 ("Paragraph 30") to compensate him for convalesce, and again as of August 1, 2006, and continuing for the next year, so until August 1, 2007, as expressly mandated by 38 C.F.R. § 4.71a, DC 5055, since he had a total left knee replacement (i.e., implantation of a prosthesis). His current 30 percent rating at issue took effect on August 1, 2007, followed by an examination to determine the postoperative status of this knee to, in turn, assess the severity of the postoperative residuals. Therefore, he was not provided notice required by Vasquez-Flores until after this 30 percent rating was assigned; the notice was sent in July 2008. But the RO since has readjudicated his claim for an increase in the rating for this disability, including in the SOC issued in August 2008. The claim also since has been readjudicated in SSOCs issued in September 2009 and August 2011. So his claim has been reconsidered, indeed several times, since providing all required VCAA notice. The timing defect in the provision of the notice therefore has been rectified ("cured"). Consider also that an examination is not necessary to reduce a total disability rating (i.e., a 100 percent rating) that was assigned only for a limited period as part of a retrospective staged rating. See Reizenstein v. Shinseki, 583 F.3d 1331 (Fed. Cir. 2009). The VCAA further provides that VA has a duty to assist the Veteran in the development of the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). This duty includes assistance in obtaining pertinent medical records, as well as the provision of an examination in some cases when necessary to make a decision on the claim. Id. Here, the Veteran's private and VA treatment records have been obtained and associated with the file for consideration. He also has been provided two VA compensation examinations, and the reports of these examinations contain the findings needed to address the applicable rating criteria. Hence, these examinations are adequate for rating purposes such that the Veteran does not need to be reexamined. 38 C.F.R. §§ 3.327(a), 4.2 Indeed, as already alluded to, the reasons the Board previously remanded this claim in March 2011 was to obtain all outstanding VA and private treatment records and to have the Veteran reexamined to reassess the severity of his left knee disability. All additional records that are relevant to the claim, but not on file, were obtained on remand, and the Veteran as mentioned was provided the necessary VA compensation examination reassessing the severity of his left knee disability. Thus, there was compliance with the Board's March 2011 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon the Board a concomitant duty to ensure compliance with the terms of the remand); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Accordingly, the Board is proceeding to addressing this claim on its merits. Increased Rating Service connection has been in effect for the Veteran's left knee disability since October 1, 1982, so since the day following his discharge from service, because he has chronic residuals of an injury to the meniscus cartilage of this knee that in the short term required a meniscectomy but ultimately a total left knee replacement. In 2006, the RO received an operation report detailing his total knee replacement and treated it as an informal claim for an increased rating. 38 C.F.R. § 3.157. In a July 2006 rating decision, the RO assigned temporary 100 percents rating for his left knee disability from June 29, 2006, until July 31, 2007. The authority for assigning those temporary total ratings were 38 C.F.R. §§ 4.30 and 4.71a, DC 5055. Section 4.30 permits the awarding of a temporary 100 percent disability rating to compensate a Veteran while he convalesces, such as from the type of surgery this Veteran had, whereas DC 5055 mandates the assigning of a 100 percent rating for one year following a knee replacement. Also in that July 2006 rating decision, which was not appealed, the RO indicated a lesser 30 percent rating for this left knee disability would take effective prospectively as of August 1, 2007, upon termination of those temporary 100 percent ratings. In September 2007, after having the Veteran's left knee examined to assess the severity of the postoperative residuals, the RO issued the decision at issue confirming and continuing the 30 percent disability rating. In response, he appealed to the Board. Therefore, the issue under consideration is whether he has been entitled to a rating higher than 30 percent for this disability since August 1, 2007. Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate DCs. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.20 (2012). When a question arises as to which of two ratings applies under a particular DC, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. In deciding what rating is appropriate, consideration must be given to the history of the disability and all potentially applicable DCs. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Where, as here, entitlement to compensation already has been established, and an increase in the disability rating is at issue, the present level of disability is the primary concern. Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). But the Court also has explained that, in determining the present level of disability, it may be necessary to "stage" the rating if the factual findings show distinct time periods where the service-connected disability has exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from one year before the claim for a higher rating was filed until VA makes a final decision on the claim. See 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition, else, this would violate VA's anti-pyramiding regulation - 38 C.F.R. § 4.14. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The assignment of a particular DC is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One DC may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in DC by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). As already indicated, the Veteran's left knee disability is currently rated as 30-percent disabling under DC 5055 (knee replacement (prosthesis)). Under this DC, following the termination of the temporary 100 percent rating that is to remain in effect for one year, a 60 percent rating is warranted if there are chronic residuals consisting of severe painful motion or weakness in the affected extremity. Otherwise, with intermediate degrees of residual weakness, pain, or limitation of motion, the disability will be rated by analogy to DCs 5256, 5261, or 5262. However, the minimum rating is 30 percent. 38 C.F.R. § 4.71a, DC 5055. DC 5256 pertains to ankylosis of the knee. 38 C.F.R. § 4.71a, DC 5256. Ankylosis is "[s]tiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint." Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (quoting from Stedman's Medical Dictionary 87 (25th ed. 1990)). According to Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988), ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure." See also Coyalong v. West, 12 Vet. App. 524, 528 (1999). See, too, Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. Under DC 5256, a 30 percent rating is assigned if the knee is ankylosed at a favorable angle in full extension or in slight flexion between 0 and 10 degrees; a 40 percent rating is assigned if the knee is ankylosed in flexion between 10 and 20 degrees; a 50 percent rating is assigned if the knee is ankylosed between 20 and 45 degrees; and a 60 percent rating is assigned for extremely unfavorable ankylosis of the knee at an angle of 45 degrees or more. 38 C.F.R. § 4.71a, DC 5256. DC 5261 pertains to limitation of extension of the knee. This code provides that extension limited to 45 degrees warrants a 50 percent rating; extension limited to 30 degrees warrants a 40 percent rating; extension limited to 20 degrees warrants a 30 percent rating; extension limited to 15 degrees warrants a 20 percent rating; extension limited to 10 degrees warrants a 10 percent rating; extension limited to 5 degrees warrants a zero percent (noncompensable) rating. 38 C.F.R. § 4.71a, DC 5261. DC 5260, on the other hand, considers knee motion in the opposite direction and provides that flexion limited to 15 degrees warrants a 30 percent rating; flexion limited to 30 degrees warrants a 20 percent rating; flexion limited to 45 degrees warrants a 10 percent rating; and flexion limited to 60 degrees warrants a 0 percent (noncompensable) rating. Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II. When evaluating musculoskeletal disabilities that are based on limitation of motion, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). 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. Pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to a healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Functional loss due to pain is rated at the same level as functional loss where motion is impeded. Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). Indeed, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups. DeLuca v. Brown, 8 Vet. App. 202 (1995). A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). And although VA is required to apply 38 C.F.R. §§ 4.40 and 4.45, pertaining to functional impairment for disabilities evaluated on the basis of limitation of motion, where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, these regulations are not for application. Johnston, 10 Vet. App. at 84-85. Moreover, although pain may cause functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id.; see 38 C.F.R. § 4.40 . DC 5262 pertains to impairment of the tibia and fibula. This code provides a 30 percent rating for malunion of the tibia and fibula with marked knee or ankle disability. A 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion, requiring a brace. 38 C.F.R. § 4.71a, DC 5262. "Other" impairment of the knee, namely, if due to recurrent subluxation or lateral instability, is rated under DC 5257 as 10-percent disabling if "slight", as 20-percent disabling if "moderate", and as 30-percent disabling if "severe". If a Veteran has arthritis due to trauma (i.e., post-traumatic arthritis), substantiated by X-ray findings, then the rating is under DC 5010, which indicates to rate the disability as degenerative arthritis (hypertrophic or osteoarthritis) under DC 5003. With any form of arthritis, painful motion is an important factor of disability. The intent of the Rating Schedule is to recognize painful motion with joint or particular pathology as productive of disability. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. 38 C.F.R. § 4.59. DC 5003 indicates the disability will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved - which, here, as mentioned are DC 5260 for limitation of leg and knee flexion and DC 5261 for limitation of leg and knee extension. When, however, the limitation of motion of the specific joints involved is noncompensable (i.e., 0-percent disabling) under the appropriate DCs, a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is warranted if there is X- ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and a 20 percent rating is authorized if there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a , DC 5003. For the purpose of rating disability from arthritis, the knee is considered a major joint. See 38 C.F.R. § 4.45(f). VA's General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257, respectively. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (July 1, 1997; revised July 24, 1997). The General Counsel subsequently clarified in VAOPGCPREC 9-98 (August 14, 1998) that for a knee disability rated under DC 5257 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under DC 5260 or DC 5261 need not be compensable but must at least meet the criteria for a zero-percent rating. VA's General Counsel further explained that, if a Veteran has a disability rating under DC 5257 for instability of the knee, a separate rating for arthritis also could be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. This is because, read together, DC 5003 and 38 C.F.R. § 4.59 provide that painful motion due to degenerative arthritis, which is established by X-ray, is deemed to be limitation of motion and warrants the minimum rating for a joint, even if there is no actual limitation of motion. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). VA's General Counsel has additionally held that separate ratings may be assigned, as well, for limitation of knee extension and flexion. VAOPGCPREC 9-2004; 69 Fed. Reg. 59, 990 (2004). Specifically, where a Veteran has both a compensable level of limitation of flexion and a compensable level of limitation of extension of the same knee, the limitations must be rated separately to adequately compensate him for functional loss associated with injury to his leg and knee. Id. The Veteran had a total left knee replacement on June 29, 2006. DC 5055 is the code that is specifically applicable to this circumstance, so is the express means of rating his disability after this type of surgery. And assuming he has the type of post-operative impairment contemplated by this DC, there is not then need to rate his disability under any of the other DCs mentioned, that is, other than by analogy under DC 5055. This is especially true since DC 5055 accepts that he will have chronic residuals consisting of post-operative painful motion or weakness in the affected extremity, so contemplates the very same type of symptoms and impairment that are mentioned, as examples, in DCs 5003 and 5260 and 5261 (for arthritis causing limitation of motion on flexion and extension) and DC 5257 (inasmuch as instability is akin to weakness). During his August 2007 VA compensation examination, so the one the year after his knee replacement surgery, the Veteran reported that he was working as an electronic banking machine repairman, and that he had missed four days of work in the previous three months due to left knee pain. He complained of pain, stiffness, and swelling in this knee. He estimated his daily pain measured a 2 out of 10, however, once weekly flare ups increased the pain to a 6 out of 10, and these lasted between 6 and 8 hours. Prolonged standing or walking also brought on knee pain. He said he could walk and stand for about 15 minutes before having to take a seat, and he could climb two flights of stairs. During the examination, the VA examiner observed the Veteran used his hands to push himself out of his chair, so needed this form of assistance to get up out of the chair, presumably because he could not put pressure or weight on his left knee to otherwise assist in getting up. His left knee was swollen with effusion laterally. His range of motion was from 0 to 110 degrees, with pain from 90 to 110 degrees. He was able to repeat the range of motion tests three times without additional limitation shown. He had mild instability and a slight limp. See VA examination report dated August 24, 2007. The Veteran's private physician noted complaints that the left knee hurt for the previous seven months, without precipitating injury. Upon examination, there was tenderness in the left knee on movement. The physician referred him to an orthopedist. See Dr. G. G. dated January 17, 2008. A bone scintigraphy showed mildly increased blood pool activity around the left knee replacement. Moderately increased uptake in the left lateral tibial plateau abutting the tibial component could represent an area of loosening of the total knee replacement. See Scintigraphy report dated February 5, 2008. Dr. R. G. ordered a fluoroscopy to assess the tibial component, which did not show loosening. See Dr. R. G. dated February 25, 2008, and March 31, 2008. Although the Veteran complained of stiffness when standing and increasing pain over time, the physician was unsure whether these symptoms evidenced loosening. There was no evidence of synovitis, effusion, or instability, and the physician wanted to conduct a computed tomography (CT) test to check for loosening or rotational abnormalities. See Dr. R. G. dated March 31, 2008. This CT scan did not show evidence of loosening or malrotation of the tibial component. See CT scan report dated April 8, 2008. In a statement, the Veteran complained that his left knee continued to hurt following his knee replacement, and that he is unable to put weight on it when he lowers himself to the floor, or raises back up, which was required for his job. He also said that his left leg is not the same length as his right leg, causing him to walk differently than before the knee replacement. See Statement dated April 4, 2008. In August 2008, he provided a copy of a personal log detailing the frequency of his knee pain, as well as pain in his hips, which is not at issue in this appeal. This log documents almost-daily pain in the left knee, from December 2007 to August 2008. See Statement dated August 19, 2008. In September 2008, the Veteran submitted a statement wherein he complained of daily pain in his knee, as well as instability, making it difficult for him to do his job, which requires him to get down on the floor to conduct repairs. See Statement dated September 18, 2008. In February 2009, his range of motion was from 0 to 85 degrees, and he complained of increased pain. See VA treatment dated February 19, 2009. In April 2009, his range of motion was 10 to 95 degrees. He was noted to walk with a limp and a bent knee, and the diagnostic impression was that this was causing his left knee pain. See VA treatment dated April 2, 2009. Physical therapy notes show a range of motion of 8 to 90 degrees, with pain beyond 90 degrees. The Veteran complained of pain in the posterior knee, the knee cap, and just below the knee cap. He said climbing stairs is painful, but he can do that. He was assessed as having both flexion and extension contracture. See VA treatment dated July 13, 2009. Pain appeared to be localized in the patellar region. See VA treatment dated August 6, 2009. In August 2009, his range of motion was from 0 to 80 degrees, with tenderness to palpation of the tibial component. The VA physician was concerned about the tibial component. See VA treatment (Ortho) dated August 20, 2009. At his physical therapy appointment that day, it was noted that his knee hurt, but that he was getting better at flexing and extending this knee without additional pain. See VA treatment (PT) dated August 20, 2009. In December 2009, his range of motion improved to 0 to 85 degrees. His left knee pain was attributed to the decreased range of motion in the knee. He was also diagnosed with patellar tendonitis of the left knee. See VA treatment dated December 1, 2009. During his April 2010 Travel Board hearing, the Veteran testified that he takes Vicodin and Ibuprofen on a daily basis for the chronic pain in his knee, that he has difficulty walking down stairs, and that his knee swells after use, especially prolonged use. He said his range of motion had been measured as from 0 to 85 degrees, extension to flexion, and that he can push it beyond 85 degrees but that is painful. He further complained of instability. See Hearing transcript. He also noted that he had been laid off from his job, and he thinks it was because of his knee. Id. In December 2010, he asked whether his daily dosage of Vicodin could be increased. He stated his wife's health problem required him to be on his feet more, and the pain in his left knee made that difficult. See VA telephone contact dated December 20, 2010. He had another VA compensation examination in June 2011. Functionally, he was noted to be limited when standing for 15 minutes, when walking to two blocks, when climbing stairs to one flight with a handrail, and when lifting as little as 25 pounds. He complained of daily pain, a 4 out of 10 when seated, and a 6 out of 10 when standing or walking. He also complained of stiffness, instability, and swelling. He was noted to have a mildly antalgic gait. He was able to flex from 0 to 85 degrees without pain, to 105 with pain. He was able to repeat these results after repetitions. He was noted to have had a left knee brace since 2007, so since the year after his knee replacement surgery. The VA examiner diagnosed total knee replacement complicated by recurrent patellar tendonitis, status post two meniscectomies with evidence of mild instability, chronic pain, and decreased range of motion. See VA examination report dated June 10, 2011. In another statement, the Veteran clarified that he wears his left knee brace continuously, as it helps his knee feel less unstable. He indicated that when he walks, he tries to ensure he is near objects that he can grab onto if necessary. He also discussed how he thinks he was laid off from his job because of his knee, since he often had to take breaks or ask for help from other employees. He said he was having difficulty finding a new job that does not require heavy lifting or extended standing. See Statement dated September 1, 2011. The medical and lay evidence shows his left knee disability is manifested by chronic pain and limited motion (though not ankylosis), as well as mild instability. In light of his additional testimony that he has difficulty standing, walking, and climbing stairs, and has constant pain, so on a chronic or permanent basis, and when resolving all reasonable doubt concerning the extent and severity of his symptoms and impairment in his favor, the Board finds that a higher 60 percent rating is warranted for his left knee disability under DC 5055. See 38 C.F.R. §§ 4.3, 4.7. Since more than one year has elapsed since his left knee replacement, and he already has been compensated at the 100-percent level for that knee replacement, this is the maximum schedular evaluation that can be assigned under this code. See 38 C.F.R. § 4.71a, DC 5055. None of the other DCs pertaining to the knee and leg provide for a disability rating higher than 60 percent. See 38 C.F.R. § 4.71a, DCs 5256-5263. He has, however, been entitled to this 60 percent rating since cessation of his temporary 100 percent rating, so since August 1, 2007, which amounts to a "staging" of his rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Extra-schedular Consideration Pursuant to 38 C.F.R. § 3.321(b)(1), the Under Secretary for Benefits or the Director of Compensation and Pension Service is authorized to approve an extra-schedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." The question of an extra-schedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). And although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). If the evidence raises the question of entitlement to an extra-schedular rating, the threshold factor for extra-schedular 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. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. See Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture 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 for completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Board finds that referral for extra-schedular consideration is not warranted in this case. The Veteran's reported symptoms (i.e., chronic pain, limited motion, and instability) are contemplated by the rating criteria, as discussed above. There are no symptoms left uncompensated or unaccounted for by the assignment of a schedular rating. The evidence does not indicate that his left knee disability presents "such an exceptional or unusual disability picture... as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b) (2012). The fact that circumstances specific to a particular claimant may cause the effects of a service-connected disability to be more profound in that claimant's case does not ordinarily provide a basis for extra-schedular consideration. Id. Rather, the impairment must be one that is so unusual as to be unanticipated by the rating criteria. See id. Because the Board finds that the symptoms and functional limitations caused by the Veteran's left knee disability are contemplated by the rating criteria, there is no need to consider whether it causes marked interference with employment. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, the Board finds that the available schedular evaluation is adequate to rate this disability, and therefore referral for extraschedular consideration is not warranted. Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). ORDER A higher 60 percent rating is granted for the left knee disability retroactively effective from August 1, 2007, subject to the statutes and regulations governing the payment of VA compensation. REMAND Unfortunately, a remand is required concerning the remaining issue of whether the Veteran is also entitled to a TDIU. Although the Board sincerely regrets the additional delay that inevitably will result from remanding this remaining claim, it is necessary to ensure there is a complete record and so he is afforded every possible consideration. As already explained, he has presented evidence of unemployability on account of his service-connected left knee disability. During his April 2010 hearing, he testified that he had been laid off from his job, and that he suspected it was due to this disability. See Hearing transcript, page 5. In a written statement since submitted, he reiterated this contention, indicating he has had difficulty finding other employment because of the limitations on heavy lifting and extended standing attributable to this disability. See Statement dated September 1, 2011. These statements, therefore, are tantamount to a claim of entitlement to a TDIU. The Court has held that a claim of entitlement to a TDIU is derivative of an increased-rating claim, not a separate claim, if the TDIU claim is at least partly predicated on the service-connected disability for which the Veteran is requesting a higher rating. A request for a TDIU, whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and therefore is part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). See also Mayhue v. Shinseki, 24 Vet. App. 273 (2011) (holding it was inappropriate to have treated the Veteran's request for a TDIU as different from his claim for a higher initial rating for his posttraumatic stress disorder (PTSD)). Citing Rice, the Mayhue Court reasoned that a request for a TDIU is not a separate claim for benefits, rather, an attempt to obtain an appropriate rating for a disability. Thus, the Court explained, the Board should have considered evidence of unemployability as far back as the date of the underlying claim). The Board therefore has jurisdiction to consider this additional TDIU claim. See Roberson v. Principi, 251 F.3d 1378, 1384 (2001) (wherein the Federal Circuit Court held that once a claimant: (1) submits evidence of a medical disability, (2) makes a claim for the highest possible rating, and (3) submits evidence of unemployability, an informal TDIU claim is raised under 38 C.F.R. § 3.155(a)). But there must be cogent evidence of unemployability in the record. See Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). And as the Court also explained in Rice, supra, if the Board determines the TDIU claim requires further development before being adjudicated, the appropriate disposition is to remand the TDIU claim. In this case, then, the RO should provide all required notice concerning this derivative claim, and conduct all necessary development, including providing the Veteran VCAA notice and affording him a VA examination to assess the severity of all of his service-connected disabilities (that is, all of them in combination) and their affect on his ability to reenter the workforce and obtain and maintain employment that could be considered substantially gainful versus just marginal in comparison. If it is determined he is indeed incapable of obtaining or retaining substantially gainful employment because of the severity of his service-connected disabilities, in particular the left knee disability (which he cites as the primary cause of his unemployability), then the examiner should indicate the approximate date of onset of this total occupational impairment. As the Court pointed out in Friscia v. Brown, 7 Vet. App. 294, 297 (1994), the Board may not reject a claim for a TDIU without producing evidence, as distinguished from mere conjecture, showing the Veteran can perform work that would produce sufficient income to be other than marginal. See, too, Ferraro v. Derwinski, 1 Vet. App. 362, 331-32 (1991). Accordingly, this claim REMANDED for the following additional development and consideration: 1. Notify the Veteran of (1) the information and evidence not of record that is necessary to substantiate his derivative claim for a TDIU; (2) the information and evidence that VA will obtain and assist him in obtaining; and (3) the information or evidence that he is expected to provide. A copy of this notification must be associated with the claims folder. 2. Ask that he identify any additional medical treatment he has received for his service-connected disabilities, including especially his left knee disability. Obtain all identified records. If the records identified are not in the custody of a Federal department or agency, then the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(1), whereas subpart (c)(2) controls if they are. Also appropriately notify him if unable to obtain any identified records. 38 C.F.R. § 3.159(e)(1). 3. Upon receipt of all additional records, schedule an appropriate VA compensation examination. The claims file and a copy of this remand must be provided to the examiner for review. All indicated tests and studies should be performed. The examiner should assess the severity of the service-connected disabilities (all of them in combination) on the Veteran's ability to reenter the workforce and obtain and maintain substantially gainful employment versus just what would be considered marginal employment in comparison, given his level of education, prior work experience, and training , but not any impact on account of his age or disabilities that are not service connected. If it is determined the Veteran is indeed incapable of obtaining or retaining substantially gainful employment because of the severity of his service-connected disabilities, then the examiner is asked to additionally indicate the approximate date of onset of the total occupational impairment. It is imperative the examiner discuss the rationale of the opinions in response to these questions, whether favorable or unfavorable, if necessary citing to specific evidence in the file. 4. Then adjudicate this derivative TDIU claim. If this claim is not granted, send the Veteran and his representative an SSOC concerning this claim and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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). ______________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs