Citation Nr: 1306262 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 08-14 085 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased rating for right knee medial collateral ligament strain, with osteoarthritis, currently evaluated as 20 percent disabling, to include the issue of a rating in excess of 10 percent prior to May 2012. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1956 to August 1959 with subsequent service in the Reserves until July 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama that continued a current 10 percent rating for the service-connected right knee disability. By way of background, Board decisions dated August 1968 and September 1979 denied increased rating for service-connected right knee disability, continuing a 10 percent rating. Within one year of these determinations, the Veteran did not express disagreement with the disability evaluations, nor was any relevant new and material evidence, medical or lay, physically or constructively received by VA prior to the expiration of the appellate periods. See 38 U.S.C.A. § 7105 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.156(b); 20.201 (2012); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011). As such, the August 1968 and September 1979 denial decisions became final. In March 2012, the Board remanded the case for additional development. It now returns for further appellate review. In October 2012, following the receipt of new evidence (the May 2012 VA examination) the RO issued a rating decision and supplemental statement of the case granting an increased rating of 20 percent disability evaluation for service connected right knee disability, effective May 8, 2012 (the date of the examination). In November 2012 the Veteran requested that his case be immediately certified to the Board. The issue of entitlement to a TDIU was not certified for appeal. However, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). As the evidence suggests that the Veteran may be unemployable due to symptoms of his service-connected disability, the issue of entitlement to a TDIU has been raised, is within the jurisdiction of the Board, and has been captioned above as an issue in appellate status. In statements dated July 2009 and April 2012, the Veteran raised issues of entitlement to service connection for 1) left ankle disability, including as secondary to service-connected right knee disability; 2) right hip disability, including as secondary to service-connected right knee disability; and 3) post-surgical right knee scar. These issues have been raised by the Veteran, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. Prior to May 8, 2012, the Veteran's medial collateral ligament strain of the right knee with osteoarthritis has been manifested by extension limited predominantly to 10 degrees, including on repetition. 2. Since May 8, 2012 the Veteran's medial collateral ligament strain of the right knee with osteoarthritis has been manifested by extension limited to 20 degrees. CONCLUSIONS OF LAW 1. Prior to May 8, 2012, the criteria for an evaluation in excess of 10 percent for the right knee disability were not met. 38 U.S.C.A. 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261 (2012). 2. Since May 8, 2012, the criteria for an evaluation of 30 percent, but no higher, for the right knee disability have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The notice requirements apply to all five elements of a service connection claim, including Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on the claim for VA benefits. 38 U.S.C.A. § 5103(a) (West 2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. A June 2005 letter provided notice before the initial unfavorable decision in May 2006 regarding what information and evidence was needed to substantiate his claim for increased rating, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. Additionally, a January 2008 letter advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. While the January 2008 letter was issued after the initial May 2006 rating decision, the United States Court of Appeals for the Federal Circuit has held that VA could cure such a timing problem by readjudicating the Veteran's claim following a compliant VCAA notification letter. Mayfield v. Nicholson, 444 F. 3d 1328, 1333-34 (Fed. Cir. 2006). The United States Court of Appeals for Veterans Claims (Court) clarified that the issuance of a statement of the case could constitute a readjudication of the Veteran's claim. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). In the instant case, after the January 2008 letter was issued, the Veteran's claim was readjudicated in the March 2008 statement of the case, the June 2009, October 2009 and October 2012 supplemental statements of the case, and the October 2012 rating decision. Therefore, any defect with respect to the timing of the VCAA notice has been cured. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records, pertinent treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records, private medical records, Social Security Administration records, and VA treatment records have been obtained and considered. In July 2005 the National Personnel Records Center indicated that records from the Veteran's service in the Reserves were destroyed in the July 12, 1973 fire in St. Louis, Missouri, and were therefore unavailable. The Veteran has not identified any additional outstanding records that VA should seek to obtain on his behalf. In March 2012 the Board remanded the claim, directing the RO/AMC to obtain any identified treatment records dated after March 2008. An April 2012 letter asked the Veteran to identify any providers who had treated his right knee since March 2008. The Veteran responded that all of his treatment and medication since March 2008 was provided by VA, and the AMC obtained his VA treatment records dated March 2008 through May 2012 and associated them with the claims file. The remand also directed that the Veteran be provided with a VA examination to determine the current degree of severity of the Veteran's service-connected right knee disability. Such examination took place in May 2012. The Board finds that the RO/AMC substantially complied with the remand orders and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (where there is substantial compliance with the Board's remand instructions a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998)). The Veteran was provided with VA examinations of the right knee in May 2006 and May 2012. The Board finds that the examinations are adequate in order to evaluate the Veteran's service-connected right knee disability as they include interviews with the Veteran, review of the claims file, review of x-rays, and full physical examinations. The Veteran has not alleged, nor does the record show, that his service-connected right knee disability has worsened in severity since the most recent examination in 2012. As such, a new examination is not required. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). The Board finds that all relevant facts have been properly developed, and all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claims, and no further assistance to develop evidence is required. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Increased Rating Claim Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Separate diagnostic codes (DCs) identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). A. Limitation of Extension The Veteran is service-connected for medial collateral ligament strain of the right knee with osteoarthritis, which is currently rated 20 percent disabling, effective May 8, 2012, under 38 C.F.R. § 4.71a, DC 5261. He contends that his right knee disability is more severe than the currently assigned rating and that he is entitled to a higher rating. The Board notes that 38 C.F.R. § 4.71a, DC 5003 establishes, essentially, three methods of evaluating degenerative arthritis that is established by X-rays: (1) when there is a compensable degree of limitation of motion, (2) when there is a noncompensable degree of limitation of motion, and (3) when there is no limitation of motion. Generally, when documented by X-rays, arthritis is rated on the basis of limitation of motion under the appropriate DC for the joint involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasms, or satisfactory evidence of painful motion. Read together, DC 5003 and 38 C.F.R. § 4.59 provide that painful motion due to degenerative arthritis established by X-ray is deemed to be limitation of motion and warrants the minimum compensable rating for the joint, even if there is no actual limitation of motion. Lichtenfels v. Derwinski; 1 Vet. App. 484, 488 (1991). The Court has held that the provisions of 38 C.F.R. § 4.59 are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). Pursuant to DC 5261, under which limitation of leg extension is evaluated, the following evaluations are assignable: for extension limited to 5 degrees, noncompensable; for extension limited to 10 degrees, 10 percent; for extension limited to 15 degrees, 20 percent; for extension limited to 20 degrees, 30 percent; for extension limited to 30 degrees, 40 percent; for extension limited to 45 degrees, 50 percent. VA treatment records and examinations show that the Veteran's right knee extension was measured seven times during the appeal period. On five instances, it was limited to 5 degrees (November 2005, May 2006, October 2006, November 2006, and April 2007). At a May 2006 VA examination it was measured at 10 degrees. At the May 2012 VA examination, it was measured at 20 degrees. Based on these measurements, the Board concludes that the Veteran's right knee disability does not warrant a rating in excess of 10 percent for extension before May 8, 2012 because limitation of extension never exceeded 10 degrees. However, after May 8, 2012 he is entitled to an increased rating of 30 percent because his extension was limited to 20 degrees. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath, supra. The possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45; Mitchell, supra. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The relevant evidence of record, which includes the Veteran's lay statements, SSA records, VA treatment records, and the May 2006 and May 2012 VA examination reports, show that during the course of the appeal the Veteran's right knee disability has been productive of considerable pain and functional impairment. In a November 2005 treatment note, he reported history of right knee pain with swelling. At the May 2006 VA examination he had increased pain on motion and he took sulindac for pain and swelling. In October 2006 he reported worsening pain after stopping sulindac. In October 2006 and April 2007 he received steroid injections to treat right knee pain. An April 2007 treatment note showed complaints of generalized pain deep in the knee. In an April 2007 lay statement he reported that his pain was continuous without relief. He also stated that he was not independent in his activities of daily living (ADLs). He could not sit for long periods or walk far without having to stop and take the weight off his right leg. In his May 2008 substantive appeal he asserted that he had substantial loss of use; permanent pain; permanent use of assistance in daily routines, business affairs, and household chores; severe limitations to walking, squatting, kneeling, and bending; and needed constant relief from placing any weight on his right knee, including standing. In a July 2009 lay statement he reported that he had been told by his physicians that he needed a total knee replacement but he felt he was too old for this treatment. He reiterated that he could not stand in one spot and bear full weight on his right leg without leaning or holding on to something due to pain. Steps and stairs were excruciating. He stated that he was on a crutch frequently to give his right leg rest and had to avoid as much weight bearing on the right leg as possible. He described pain from rubbing and scraping of the bones against each other in the joint, due to his severely macerated lateral and medial menisci. The Veteran reported to the May 2012 VA examiner that his daily pain level was 5 to 7 out of 10, lasting four to five hours per day unless he has a flare-up. Pain was exacerbated by prolonged (more than 45 minutes to an hour of) walking, standing, or sitting. Flare-ups occurred several times per month, during which his pain increased to an 8 or 9 out of 10. He denied sudden swelling, hospitalization, or prescribed bed rest in the last year. The examiner stated that on range of motion testing, the Veteran had additional limitations and functional loss of the right knee following repetitive use, namely less movement than normal, weakened movement, excess fatigability, pain on movement, swelling, and interference with sitting, standing, and weight-bearing. The examiner described his overall functional limitations as moderate, and noted that the Veteran reported being capable of performing his ADLs independently. Taking all of the above into consideration, the record nevertheless shows extension limited to 20 degrees at most. Indeed, repetitive testing conducted in 2012, reportedly improved extension to 15 degrees. Thus, even considering the functional loss due to pain that the Veteran reports, the evidence demonstrates that the criteria for a rating in excess of 30 percent have not been met. Accordingly, Board finds that the Veteran is not entitled to a rating in excess of 30 percent for limitation of extension due to pain. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). B. Other Diagnostic Codes The Board has considered whether it may be appropriate to rate the Veteran's right knee disability under other DCs. Diagnostic Codes 5256, 5262, and 5263 provide ratings for ankylosis, impairment of tibia and fibula, and genu recurvatum, respectively. All of the medical evidence shows no such impairment. Therefore, a higher rating is not available under these DCs. Pursuant to DC 5260, under which limitation of leg flexion is evaluated, the following evaluations are assignable: for flexion limited to 60 degrees, noncompensable; for flexion limited to 45 degrees, 10 percent; for flexion limited to 30 degrees, 20 percent; and for flexion limited to 15 degrees, 30 percent. VA treatment records and examinations show that the Veteran's right knee flexion was measured seven times during the appeal period. On all but the most recent of those occasions, it was to between 100 and 125 degrees (November 2005, twice in May 2006, October 2006, November 2006, and April 2007). At the May 2012 VA examination, it was measured at 90 degrees and 80 on repetition. Therefore, the Veteran's limitation of flexion has is not reached a level compensable under DC 5260. DC 5259 provides for a 10 percent rating for symptomatic removal of the semilunar cartilage. 38 C.F.R. § 4.71a, DC 5261. DC 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. The evidence of record shows that in June 1978 the Veteran underwent a medial meniscectomy on his right knee, and in August 2001 he also had partial lateral and medial meniscectomies. A November 2005 x-ray showed possible loose bodies in the right knee. The Veteran's current right knee pain has been related to those operations. Therefore, the removal of the Veteran's semilunar cartilage (lateral and medial meniscus) is symptomatic. There are no reported episodes of the right knee locking. With regard to effusion, VA treatment records show that in October 2005, May 2006, October 2006, November 2006, and April 2007 there was no effusion. The only report of effusion in the record is the 2012 VA examiner's notation of a small prepatellar postlateral effusion that was nonerythematous and was not warm. The Board does not find that the record shows frequent effusion warranting a rating under DC 5258. The evidence shows that the Veteran has experienced the symptom of pain during the appeal period resulting from the meniscectomies. However, the Board has already rated that symptom in connection with DC 5261. Accordingly, that symptom cannot overlap with the symptomatic pain from the removed or dislocated semilunar cartilage. Therefore, the Board cannot assign a rating under DC 5258 or 5259, as right knee pain is already contemplated within the symptomatology of the disability rating granted under DC 5261. Furthermore, DC 5258 and 5259 contemplate limitation of range of motion, which is already evaluated in the Veteran's current rating. Therefore, to assign an additional separate rating under these codes would amount to evaluating the same disability under various diagnoses, a practice to be avoided. 38 C.F.R. § 4.14. Finally, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5257, slight recurrent subluxation and lateral instability warrants a 10 percent evaluation. A 20 percent rating requires this be moderate, and a 30 percent evaluation is assigned when it is severe. In his May 2005 claim for increased rating, the Veteran stated that he had problems with right knee instability when weight-bearing. An October 2005 VA treatment record shows that on physical examination, the Veteran had some laxity of his medial collateral ligament. In a November 2005 treatment note, he reported history of right knee giving way. An April 2006 treatment note noted no instability in the right knee on examination. At the May 2006 VA examination he used a cane and the examiner observed guarding but no definite demonstrable ligamentous laxity. At a May 2006 VA orthopedic consult no medial or lateral laxity was observed. In November 2006 he underwent an orthopedic consult and the orthopedist noted no medial or lateral laxity either at extension or 30 degrees flexion. He was fitted for a prescribed Adjuster Osteoarthritis Knee Brace at this appointment. In April 2007 he stated that he required assistance in walking, and reported in a treatment note that he had occasional giving way, but the physician observed no medial or lateral laxity. In his May 2008 substantive appeal he asserted that he had permanent instability and severe necessity for rails, canes, crutch, or walking sticks for stability and bracing not to fall. In a July 2009 lay statement he stated that the brace was due to instability "because of the severity of the medial collateral instability." In an April 2012 lay statement, the Veteran stated that his knee was unstable from side to side and standing due to pain and weakness. The Veteran reported to the May 2012 VA examiner that he used a cane to walk, but he denied falls or use of a brace, and was not wearing a brace at the appointment. The examiner stated that there was no evidence or history of recurrent patellar subluxation or dislocation, and no x-ray evidence of patellar subluxation. Testing for medial-lateral instability, anterior instability, and posterior instability produced normal results in the right knee. After a careful review of the lay and medical evidence, the Board concludes that the evidence does not show that the Veteran has recurrent right knee instability. In reaching this determination, the Board notes that there is only one objective report of laxity, in October 2005. The remainder of the objective medical evidence consistently shows no laxity, instability, or subluxation during the appeal period. The Veteran consistently reports instability throughout the appeal period. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See 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). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In this case, while the Veteran uses the term "instability," the context of his assertions suggests that he is describing an inability to balance with his right leg and the tendency of the knee to buckle due to pain, rather than instability of the ligament. The latter definition is the phenomenon contemplated by DC 5257. Pain-related imbalance or buckling is not instability under DC 5257. For example, the Veteran stated that he was prescribed a brace due to instability but in the relevant treatment record, the prescribing physician cited pain as the chief complaint and noted no medial or lateral laxity. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board has inherent fact-finding ability. Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001); see also 38 U.S.C.A. § 7104(a) (West 2002). While the Veteran is competent to report his subjective symptoms of needing stabilizing tools like a cane, his knee giving way, feeling unstable, and being unable to balance, the Board finds that his testimony regarding instability is not entitled to probative weight because he is not referring to the medical definition of instability contemplated by DC 5257. Further, the Veteran's lay statements are not consistent with the objective medical evidence of record. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007) (as a finder of fact, when considering whether lay evidence is satisfactory, the Board may properly consider consistency with other evidence submitted). The Board finds that the objective medical evidence outweighs the Veteran's lay evidence with respect to instability, and that the Veteran is not entitled to a rating under DC 5257. Based on the foregoing, the Board finds that the Veteran is not entitled to a rating under any other DCs. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert, supra. C. Other considerations The Board has also considered whether an extra-schedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). 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. This means that 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. 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 adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made 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"). See id. When the analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto 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 extraschedular rating. However, in this case, the rating criteria reasonably describe the claimant's disability level and symptomatology. The Veteran essentially exhibits limitation of extension and pain, both contemplated in the rating criteria, and indeed, there are additional rating criteria to be considered should the knee impairment produce additional symptoms. As such, with the Veteran's disability picture contemplated by the rating schedule, no referral for an extra-schedular consideration is required. ORDER A schedular rating in excess of 10 percent for right knee disability prior to May 8, 2012, is denied. An increased schedular rating of 30 percent, but no higher, effective May 8, 2012, for right knee disability is granted. REMAND As indicated above, when evidence of unemployability is submitted during the appeal from an assigned disability rating, a claim for TDIU benefits will be considered part of the claim for benefits for the underlying disability. Rice V. Shinseki, 22 Vet. App. 447 (2009). Here, the evidence suggests that the Veteran may be unemployed due to his right knee disability, as the 2012 VA examiner commented that it is less likely than not that the Veteran is able to seek gainful employment due to it. As the TDIU claim has not been considered in the first instance by the VA regional office, it will be remanded for the action set out below. The case is REMANDED for the following: 1. Issue the Veteran and his representative a notice letter that complies with the requirements of 38 U.S.C.A. § 5103 (a) and 38 C.F.R. § 3.159, concerning the information or evidence needed to establish entitlement to TDIU benefits. 2. Request that the Veteran identify any outstanding VA or private treatment records pertaining to his service-connected disabilities relevant to the TDIU claim. Take appropriate measures to request copies of any outstanding records of pertinent VA or private medical treatment and associate these with the claims file. 3. Notify the Veteran that he may submit statements, including from others, describing the service-connected disabilities' symptoms and impact on his ability or inability to work. 4. After undertaking any additional development deemed appropriate, the RO should adjudicate the TDIU claim, to include consideration of referral for extra-schedular consideration under 38 C.F.R. § 4.16(b). If the benefit sought remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given an opportunity to respond before the claims file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs