Citation Nr: 1311283 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 08-29 165 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a schedular evaluation in excess of 10 percent for degenerative joint disease of the left knee. 2. Entitlement to a schedular evaluation in excess of 20 percent for status-post right knee strain with torn medical meniscus. 3. Entitlement to an extra-schedular evaluation for bilateral knee disabilities. 4. Entitlement to total disability based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: AMVETS WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from December 1970 to July 1973. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which continued the 10 percent disability evaluation for degenerative joint disease of the left knee and 20 percent disability evaluation for status-post right knee strain with torn medical meniscus. In December 2012, the Veteran presented testimony in a Travel Board hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims folder The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. During the December 2012 hearing, the Veteran and his representative raised the issue of the Veteran's unemployability. In light of the Court's holding in Rice, the Board has considered the TDIU claim as part of his pending increased rating claims and has accordingly listed the raised TDIU claim as an issue. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. The Board has reviewed the documents in both the paper claims file and the electronic claims file in rendering this decision. The issues of an extra-schedular evaluation for bilateral knee disabilities and a TDIU 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 Veteran's degenerative joint disease of the left knee has been manifested by pain and some limitation of motion (but not to 45 degrees or less flexion or 10 degrees or less extension), but not by recurrent subluxation or lateral instability. 2. The Veteran's status-post right knee strain with torn medical meniscus has been manifested by pain, some limitation of motion (but not to 45 degrees or less flexion or 10 degrees or less extension), and effusion, but not by recurrent subluxation or lateral instability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for degenerative joint disease of the left knee have not been met or approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261 (2012). 2. The criteria for a rating in excess of 20 percent for status-post right knee strain with torn medical meniscus have not been met or approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5257,05258, 5260, 5261 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In correspondence dated in October 2007, prior to the January 2008 rating decision, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5 103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The letter informed the Veteran that in order to establish higher ratings, the evidence would need to show that his knee disabilities had increased in severity. He was informed of the type of evidence that could be submitted to support his claims. The October 2007 letter also notified the Veteran of the process by which disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). All identified and available treatment records have been secured. As the Board will discuss in detail in its analysis below, the Veteran was provided with VA examinations throughout the appeal period. The reports of these examinations reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate evaluations of the Veteran, rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record, and provided sufficient information to ascertain whether the criteria for increased schedular evaluations have been met. Additionally, the Veteran has not stated nor is there evidence indicating that there has been a material change in the severity of his knee disabilities since he was last examined in March 2012. See 38 C.F.R. § 3.327(a) (2012). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95 (April 7, 1995). The Board concludes that the examination reports of record are adequate for purposes of rendering a decision in the instant appeal. See 38 CF.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c) (4) (2012); Barr, 21 Vet. App. at 312. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). As noted above, the Veteran presented testimony before the undersigned Veterans Law Judge. Therefore, the duties to notify and assist have been met. Analysis 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 identify the various disabilities. Each disability must be viewed in relation to its history, with an emphasis on the limitation of activity imposed by the disabling condition. Medical reports must be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 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. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7 (2012). While the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1 , where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. 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 innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40 (2012). Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14 (2012). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, however, should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2012). With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight- bearing are related considerations. 38 C.F.R. § 4.45 (2012). For the purpose of rating disability from arthritis, the spine is considered a major joint. 38 C.F.R. § 4.45 (2012). Arthritis shown by X-ray studies is rated based on limitation of motion of the affected joint. When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each major joint so affected. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2012). Traumatic arthritis is rated using Diagnostic Code 5010, which directs that the evaluation of arthritis be conducted under Diagnostic Code 5003, which states that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2012). When, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent; in the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The above ratings are to be combined, not added under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5010, Note 1 (2012). Under Diagnostic Code 5260, limitation of flexion of the knee to 60 degrees warrants a zero percent evaluation, limitation of flexion of the knee to 45 degrees warrants a 10 percent evaluation, limitation of flexion of the knee to 30 degrees warrants a 20 percent evaluation, and limitation of flexion of the knee to 15 degrees warrants a 30 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2012). Related to that code is Diagnostic Code 5261, which provides that limitation of extension of the knee to 5 degrees warrants a zero percent evaluation, limitation of extension of the knee to 10 degrees warrants a 10 percent evaluation, limitation of extension of the knee to 15 degrees warrants a 20 percent evaluation, limitation of extension of the knee to 20 degrees warrants a 30 percent evaluation, limitation of extension of the knee to 30 degrees warrants a 40 percent evaluation, and limitation of extension of the knee to 45 degrees warrants a 50 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2012). Separate ratings under Diagnostic Code 5260 and 5261 may be assigned for disability of the same joint. See VAOPGCPREC 9- 2004. Normal knee motion is from zero degrees to 140 degrees. 38 C.F.R. § 4.71, Plate II (2012). The Board has evaluated the Veteran's knee disabilities under multiple diagnostic codes to determine if there is any basis to increase the assigned ratings. Such evaluations involve consideration of the level of impairment of a veteran's ability to engage in ordinary activities, to include employment, as well as an assessment of the effect of pain on those activities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (2012). As an initial matter, the Board notes that the Veteran's right knee has been evaluated as 20 percent disabling under Diagnostic Code 5258, which provides a maximum 20 percent evaluation for dislocated, semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. As the Veteran is in receipt of the maximum disability evaluation under that code, a higher rating under this code is not warranted. Accordingly, the Board will determine whether he meets the criteria for a higher evaluation under other applicable diagnostic codes. The Board has considered the evidence of record but finds that entitlement to a rating in excess of 10 percent for the service-connected left knee disability and 20 percent for the service-connected right knee disability is not warranted. Higher evaluations are warranted based on more severe limitation of motion under Diagnostic Codes 5260 and 5261. The Board has considered these diagnostic codes; however, the Veteran's limitation of motion does not closely approximate the level of functional impairment warranted by compensable evaluations under these criteria. In July 2006, the Veteran was shown to have full range of motion in the bilateral knees. An August 2006 VA treatment record reflected that knee range of motion in the left knee was 0 to 111 (passively) and 0 to 110 (actively), and in the right knee was -9 to 96 (passively) and -8 to 95 (actively). In September 2006, a VA clinician observed that range of motion in the left knee was 0 to 126 degrees, and in the right knee was -2 to 108 degrees. An October 2007 VA examination report reflected range of motion in the left knee was 0 to 110 degrees with pain throughout range of motion, and in the right knee was 0 to 120 degrees also with pain throughout range of motion. Most recently, on VA examination in March 2012, the Veteran demonstrated left knee flexion to 95 degrees with objective evidence of pain beginning at 0 degrees and extension to 0 degrees without objective evidence of painful motion, and right knee flexion to 90 degrees with objective evidence of pain beginning at 0 degrees and extension to 0 degrees without objective evidence of painful motion. Thus, flexion has not been limited to anywhere near 45 degrees or less, such that a compensable evaluation would be assigned under Diagnostic Code 5260 for either knee. In addition, given that extension has not been limited to 10 degrees or more, a compensable evaluation under Diagnostic Code 5261 is also not warranted for either knee. The Board has also considered the effect of pain and weakness in evaluating the Veteran's disability. 38 C.F.R. §§ 4.40, 4.45 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). The October 2007 VA examiner found that the only additional limitation following repetitive use was increased pain in the knees. He also noted that there were no flare-ups, and no effect of incoordination, fatigue, weakness, or lack of endurance on knee function. The March 2012 VA examination report indicated that the Veteran was able to perform repetitive-use testing with three repetitions but had additional limitation in range of motion; range of motion in the left knee was 0 to 90 degrees, and in the right knee was 0 to 90 degrees. The examiner found that after repetitive use, there was less movement than normal, pain on motion, deformity, and disturbance of locomotion bilaterally. Although the Board is required to consider the effect of pain when making a rating determination, which has been done in this case, it is important to emphasize that the rating schedule does not provide a separate rating for pain. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). Additionally, taking into account the 5 degree loss of motion noted in the left knee in March 2012, the Board finds that such loss of range of motion is insufficient to warrant a higher 20 percent evaluation which contemplates limitation of flexion of the knee to 30 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2012). Thus, even when considering the Veteran's complaints of pain and the additional loss of range of motion as noted herein, the criteria for higher ratings based on the Veteran's range of motion for either knee are not approximated and higher evaluations are not warranted on this basis. The Board has also evaluated the Veteran's knee disabilities under other relevant criteria to determine whether an increased rating is warranted. Under 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2012), the following evaluations are assignable for other impairment of the knee, to include recurrent subluxation or lateral instability: 30 percent for severe, 20 percent for moderate, and 10 percent for slight. The words slight, moderate, and severe as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6 (2012). It should also be noted that use of terminology such as severe by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2012). The Board observes in passing that "slight" is defined as "small in size, degree, or amount; of small importance." See Webster's New World Dictionary, Second College Edition (1999), 1038. "Moderate" is defined as "of average or medium quantity, quality, or extent." Id. at 704. "Severe" is generally defined as "extremely intense." Id. at 1012. In July 2006, it was noted there was no instability to anterior, posterior, varus or valgus stress, or effusion. An August 2006 VA treatment record noted that there was pain and tenderness elicited along the infrapatellar, medial and lateral aspects of the right knee, and medial aspect and patellar area of the left knee. The Veteran was positive on compression test for both knees, right greater than left. As to alignment/posture, there was a slight increase in genu valgus to the right; and as to patella tracking, there was increased pain on patellar tracking up/down, medial lateral aspect of the right knee, and increased pain on up/down tracking on the left knee. There was positive crepitation in both knees. The Veteran used a four wheel rolling walker with a seat, he had full weight bearing, and there was an increased antalgic gait greater on the right than left. Functional limitations were abnormal deep squat and stair ambulation (he was able to ascend and descend 8 to 12 steps). In March 2007, the Veteran demonstrated marked crepitus with range of motion in both knees and there was a positive grind test. The October 2007 VA examination report noted that on the left knee the Veteran exhibited minimal crepitus, which appeared to be from the patellofemoral compartment; medial and lateral tenderness in the joint lines; very minimal effusion; no instability to varus or valgus stress; and negative Lachman's test. On the right knee, there was some crepitus in the patellofemoral compartment, a very small effusion, no instability to varus or valgus stress, and negative Lachman's test. On VA examination in March 2012, the Veteran was noted to have normal anterior stability bilaterally (Lachman's test), posterior stability (Posterior drawer test) on the right side (there is no indication whether the left knee was tested), and medial-lateral stability bilaterally (applying valgus/varus pressure to knee in extension and 30 degrees of flexion). Additionally, there was no evidence of recurrent patellar subluxation/dislocation. It was further noted that the Veteran did not have shin splints, but did have/had a meniscal tear in the right knee and had a meniscectomy most recently in July 2003; the residual included right knee osteoarthritis. He also had a scar, which was not painful/unstable, or measure greater than 39 square cm. The examiner noted that the Veteran had arthritis appearing bilateral knees without visible effusion, and normal skin color and temperature. It was further noted that the Veteran used braces and a cane on a regular basis. The examiner did not find that the Veteran's knee disability resulted in functional impairment of an extremity such that no effective function remained other than which would be equally served by an amputation with prosthesis. Additionally, there was no x-ray evidence of patellar subluxation. VA treatment records dated throughout the applicable period shows that the Veteran complained of pain in the knees and his knees giving out. Additionally, it was noted that he wore knee braces, that his knees were swollen (e.g. April 2007 and August 2007), and that walking was limited due to his knees (March 2007). Based on the evidence cited herein, the Board finds that there is no indication of instability or subluxation, let alone moderate (left knee) or severe (right knee) impairment of the knee as contemplated under 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2012) for higher disability evaluations. While the Veteran used a cane and knee braces for support and reported that his knees gave out on him, there was no instability, subluxation, or dislocation shown on evaluation. Therefore, higher evaluations under Diagnostic Code 5257 are not warranted. The Board notes that separate ratings may be assigned for knee disabilities under Diagnostic Codes 5257 and 5003 where there is recurrent subluxation or lateral instability in addition to X-ray evidence of arthritis. See generally VAOPGCPREC 23-97 and VAOPGCREC 9- 98. Although the Veteran has arthritis, as noted above there is no evidence of recurrent subluxation or lateral instability. With respect to potential application of other criteria, the Board notes that Diagnostic Code 5263 for genu recurvatum only provides a maximum 10 percent disability evaluation. Thus, the Veteran would be not entitled to higher evaluations under this diagnostic code for either knee. 38 C.F.R. § 4.71a, Diagnostic Code 5263 (2012). Additionally, the evidence does not support an award for an increased rating for either knee under Diagnostic Code 5256 for ankylosis of the knee, Diagnostic Code 5259 for symptomatic removal of semilunar cartilage, or Diagnostic Code 5262 for impairment of tibia and fibula as none of these disabilities have been demonstrated. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5259, 5262 (2012). Additionally, Diagnostic Code 5258 for dislocated, semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint is not applicable to the left knee as such has not been demonstrated in that knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5258 (2012). Furthermore, the Board notes that the Veteran has a well-healed scar from his right knee surgery. However, the Veteran does not claim nor does the evidence show that he has any impairment arising from the scar. Accordingly, the Board will not consider whether he has any such impairment from his knee scar. Based upon the guidance of the Court in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board has considered whether a staged rating is appropriate. However, in the present case, the Veteran's symptoms remained constant throughout the course of the period on appeal and as such staged ratings are not warranted. As the preponderance of the evidence is against the claims for increased ratings, the benefit-of-the-doubt rule does not apply, and the claims must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a schedular evaluation in excess of 10 percent for degenerative joint disease of the left knee is denied. Entitlement to a schedular evaluation in excess of 20 percent for status-post right knee strain with torn medical meniscus is denied. REMAND As an initial matter, the Board notes that since it has determined herein that a claim for a TDIU is part of the pending increased rating claim, the Veteran has not been sent a notification letter in compliance with 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012). Therefore, on remand, he should be sent an appropriate notification letter. A TDIU which may be assigned when a disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a) (2012). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. As noted above, the Veteran is service-connected for his right knee disability currently evaluated as 20 percent disabling and left knee disability evaluated as 10 percent disabling; these evaluations do not satisfy the threshold minimum percentage rating requirements of 38 C.F.R. § 4.16(a) for a TDIU. However, if a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Under Secretary for Benefits or the Director of Compensation and Pension Service for extra-schedular consideration all cases where the veteran is unable to secure or follow a substantially gainful occupation by reason of service- connected disability. 38 C.F.R. § 4.16(b) (2012). See also Fanning v. Brown, 4 Vet. App. 225 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b) (2012). The Court has held that a TDIU claim may not be denied without producing evidence, as distinguished from mere conjecture, that the Veteran's disability does not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). In Friscia, the Court specifically stated that VA has a duty to supplement the record by obtaining an examination which includes an opinion on what effect the appellant's service-connected disability has on the ability to work. Friscia, at 297, citing 38 U.S.C.A. § 5107(a) (West 2002); 38 C.F.R. §§ 3.103(a), 3.326, 3.327, 4.16(a) (2011); Beaty v. Brown, 6 Vet. App. 532, 537 (1994) and Obert v. Brown, 5 Vet. App. 30, 33 (1993). In this case, the March 2012 VA examiner noted that the Veteran's knee disabilities would impact his ability to work. In so finding, the examiner cited to the Veteran's statement that he experienced intolerable bilateral knee pain with prolonged walking or standing. In this regard, the Board notes that prior to retirement, the Veteran had been a residential construction contractor. He testified at his December 2012 hearing that he was unable to perform construction jobs, as well as non-construction jobs because he was uncomfortable sitting. See December 2012 Travel Board Hearing Transcript, page 6. On remand, the Veteran must be provided an examination to ascertain whether he is unemployable due to his service-connected disabilities. Additionally, the Board has ascertained that there exists no schedular basis for an evaluation in excess of the evaluations for the Veteran's a right or left knee disabilities. The Board finds, however, that there remains a question of whether consideration for an extra-schedular evaluation is warranted. 38 C.F.R. § 3.321(b)(1) (2012). The Board emphasizes entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b)(1) and a TDIU extraschedular rating under 38 C.F.R. § 4.16(b), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157 (1994). An extraschedular rating under 38 C.F.R. § 3.321(b)(1) is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's disability. Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, 38 C.F.R. § 4.16(b) merely requires a determination that a particular veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96. Like an extraschedular consideration under TDIU, the Board cannot assign an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) in the first instance. See Floyd v. Brown, 9 Vet. App. 88 (1996); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Instead, the Board must refer the Veteran's claims to the Under Secretary for Benefits or Director of Compensation and Pension Service for this special consideration when the issue is either raised by the claimant or is reasonably raised by the evidence of record. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). Only after the Director has determined whether an extraschedular evaluation is warranted does the Board have jurisdiction to decide the merits of the extraschedular aspect of the claims. In conclusion, the Board refers the Veteran's claims to the Under Secretary for Benefits or Director of Compensation and Pension Service for an extra-schedular evaluation under 38 C.F.R. § 4.16(b) and 38 C.F.R. § 3.321(b)(1). Accordingly, the case is REMANDED for the following actions: 1. Send the Veteran a duty-to-assist letter on the issue of entitlement to a TDIU. 2. Schedule the Veteran for an examination with an appropriate medical professional who is qualified to offer an opinion regarding whether the Veteran's service-connected knee disabilities render him unemployable. In proffering an opinion, the examiner should review the claims file, and then offer an opinion as to whether the Veteran's service-connected disabilities, singularly or jointly, render him unable to secure or follow a substantially gainful occupation, taking into consideration his level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities. If the Veteran's service-connected disabilities do not cumulatively render him unemployable, the examiner should suggest the type or types of employment in which the Veteran would be capable of engaging with his current service-connected disabilities, given his current skill set and educational background. All opinions expressed should be accompanied by supporting rationale. 3. Refer the Veteran's case to the Under Secretary for Benefits or Director of Compensation and Pension Service for consideration of whether an extra-schedular rating is warranted for the service-connected left and right knee disabilities under both § 3.321(b) and 38 C.F.R. § 4.16(b). The response from the Under Secretary for Benefits or the Director of Compensation and Pension Service must be included in the claims file. 4. Then, readjudicate the claims based upon the response from the Under Secretary for Benefits or the Director of Compensation and Pension Service, and the TDIU examination. If the determination of either claim remains less than fully favorable, the Veteran and his representative must be furnished with a Supplemental Statement of the Case and given an opportunity to respond before this case is returned to the Board. 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). 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). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs