Citation Nr: 1313848 Decision Date: 04/25/13 Archive Date: 05/03/13 DOCKET NO. 08-12 996 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to a rating in excess of 10 percent for a right knee disability prior to January 28, 2011. 2. Entitlement to a rating in excess of 20 percent for a right knee disability from January 28, 2011l, to March 24, 2011. 3. Entitlement to a rating in excess of 60 percent for residuals of a right knee arthroplasty as of May 1, 2012. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from August 1953 to July 1956. This matter is on appeal from a March 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. This appeal was remanded by the Board in February 2012 for further development and is now ready for disposition. At the time he filed his original claim for an increased rating in November 2006, the Veteran was rated 10 percent for the right knee disability. A February 2011 rating decision increased the rating to 20 percent, effective January 28, 2011. A July 2011 rating decision assigned a total disability rating based on the need for convalescence following right knee replacement from March 24, 2011, to April 30, 2012. 38 C.F.R. §§ 3.29, 3.30 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5055 (2012). A September 2012 rating decision assigned a 60 percent rating as of May 1, 2012. Because the Veteran has the highest allowable rating from March 24, 2011, to May 1, 2012, the claim for increased rating for that period is no longer on appeal. However, the claim for increased rating for the other periods remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). The 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 entitlement to TDIU is REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. Prior to January 28, 2011, the Veteran's right knee disability was characterized by pain upon motion, but not by flexion limited to 45 degrees, extension limited to 10 degrees, or favorable ankylosis of the knee at full extension or in slight flexion between 0 and 10 degrees. 2. From January 28, 2011, to March 24, 2011, the Veteran's right knee disability was characterized by some limitation of extension, but not by ankylosis of the knee in full extension, or in slight flexion between 0 and 10 degrees, and limitation of flexion to 45 degrees or limitation of extension to 20 degrees was not shown. 3. Prior to March 24, 2011, the Veteran's right knee disability was observed to be stable and without injury to the semilunar cartilage that may be attributed to his service-connected condition. 4. As of May 1, 2012, the Veteran's has been in receipt of the highest schedular rating allowable based on symptoms related to his prosthetic right knee. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a right knee disability based on limitation of motion prior to January 28, 2011, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5003, 5256, 5260 (2012). 2. The criteria for a rating in excess of 20 percent for a right knee disability based on limitation of motion from January 28, 2011, to March 24, 2011, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5003, 5256, 5260 (2012). 3. The criteria for a separate compensable rating for patellofemoral syndrome in the right knee based on instability or injury to the semilunar cartilage prior to March 24, 2011, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.71, 4.71a, Diagnostic Codes 5257, 5258, 5259 (2012). 4. The criteria for a rating in excess of 60 percent for residuals of a right knee arthroplasty as of May 1, 2012, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.71, 4.71a, Diagnostic Code 5055 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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) (West 2002); 38 C.F.R. § 3.159(b) (2012); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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. Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Neither the Veteran nor his representative has alleged prejudice with respect to notice, and none is found. Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board finds that the duty to notify was satisfied by a January 2007 letter that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. It also provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the notice requirements. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). VA also has a duty to assist a veteran in the development of a claim. That duty includes assisting him in the procurement of service medical records and other pertinent records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's VA outpatient treatment records. The record indicates that the Veteran has been in receipt of SSA disability benefits since 1994. However, the evidence submitted to the SSA at that time precedes the period on appeal by many years and would be of little, if any, probative value to the issues on appeal. Therefore, attempting to obtain such records would not result in any benefit. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). The Veteran submitted treatment records from a private facility and his own statements in support of his claim. VA examinations with respect to the issue on appeal were obtained in January 2007, January 2011, February 2012, and May 2012. 38 C.F.R. § 3.159(c)(4) (2012). When VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that the VA examinations obtained in this case are more than adequate, as they are predicated on a full understanding of the Veteran's medical history, and provide a sufficient evidentiary basis for the claim to be adjudicated. The Board notes that the VA examination in January 2011 did not adequately assess the additional limitation in the right knee that was attributable to pain. However, as the Veteran has since undergone a prosthetic replacement, there is no way to acquire that information by reexamination. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2012). This appeal was remanded by the Board in February 2012 for further development. Specifically, the Board instructed the RO to obtain the Veteran's most recent VA treatment records and to schedule a VA examination to determine the severity of any symptoms since his right knee arthroplasty. The Board is satisfied there was substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). Specifically, the Veteran was provided VA examinations in February 2012 and May 2012. Although the first examination was premature, the second examination is adequate for adjudication purposes. The RO also obtained his most recent VA treatment records, which are part of his Virtual VA electronic claims file. After the required development was completed, this issue was readjudicated and the Veteran was sent a supplemental statement of the case in September 2012. Accordingly, the Board finds that the Remand directives were satisfied. The Board finds that no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Ratings Disability ratings are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). VA must consider only those factors contained wholly in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, the reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the 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 on 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 enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45 (2012). VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss. VA is to regard as seriously disabled any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. § 4.40 (2012); 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 during flare-ups, and that should be considered where a rating is assigned under a diagnostic code governing limitation of motion. 38 C.F.R. § 4.14 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59 (2012). A claimant who has arthritis and instability of the knee may be rated separately for limitation of motion and for instability under Diagnostic Codes 5003 and 5257. VAOPGCPREC 23-97 (1997), 62 Fed. Reg. 63604 (1997). When a knee disability has a rating under Diagnostic Code 5257 for instability, a separate rating may be warranted if the Veteran's knee meets the criteria for a compensable rating for limitation of flexion or extension, or has x-ray evidence of arthritis with a noncompensable limitation of motion. VAOPGCPREC 9-98 (1998), 63 Fed. Reg. 56704 (1998); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). In addition, separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint if a compensable rating is warranted under both Diagnostic Codes. VAOPGCPREC 09-04 (2004), 69 Fed. Reg. 59990 (2004).. Where entitlement to compensation 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). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings is permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Prior to January 28, 2011 Prior to January 28, 2011, the Veteran was rated 10 percent for his right knee disability under the criteria for synovitis. 38 C.F.R. § 4.71a, Diagnostic Code 5020 (2012). Synovitis is rated on limitation of motion of the affected part, as arthritis. The March 2007 rating decision assigned that rating was based on painful motion without limitation of motion to a compensable level. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012); Burton v. Shinseki, 25 Vet. App. 1 (2011) (a compensable rating under 38 C.F.R. § 4.59 is for consideration when there is evidence of painful motion even without actual limitation of motion or loss of motion that is noncompensable). However, a compensable rating based merely on the presence of pain in motion is a rating that may only be combined with, and not added to, a compensable rating under a diagnostic code based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). Therefore, the Board must first consider whether a compensable rating is warranted under other relevant diagnostic codes that address limitation of motion. To warrant a compensable rating for a knee disability based on limitation of motion, the evidence must show flexion limited to 45 degrees (10 percent rating under Diagnostic Code 5260); extension limited to 10 degrees (a separate 10 percent rating under Diagnostic Code 5261); or favorable ankylosis of the knee at full extension or in slight flexion between 0 and 10 degrees (30 percent rating under Diagnostic Code 5256). 38 C.F.R. § 4.71a (2012). The normal range of motion of the knee is from 140 degrees of flexion to 0 degrees of extension. 38 C.F.R. § 4.71, Plate II (2012). After a review of the evidence, the Board finds that a compensable rating is not warranted for the Veteran's right knee disability under any of those diagnostic codes. Specifically, great probative value is placed on a January 2007 VA examination of the knees. At that time, the Veteran stated that was unable to stand for more than a few minutes and was unable to walk any further than a quarter mile. Those symptoms were made worse during flare-ups, which occurred about once every other month. Upon examination, his gait was normal, and his range of motion was to 140 degrees of flexion and 0 degrees of extension. There was no additional limitation observed due to pain, nor was there any additional limitation after repetitive motion. Ankylosis of the right knee was not observed. The outpatient treatment the Veteran received during that period also does not indicate any limitation of motion. Notably, at an outpatient evaluation in June 2006, the range of motion in his joints was normal. Thus, as limitation of flexion to 45 degrees, limitation of extension to 10 degrees, or favorable ankylosis of the knee at full extension or in slight flexion between 0 and 10 degrees have not been shown, a compensable rating based on limitation of motion is not warranted. Therefore, the Board finds that the preponderance of the evidence is against the assignment of an increased rating based on limitation of motion prior to January 28, 2011. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). From January 28, 2011, to March 24, 2011 A February 2011 rating decision increased the Veteran's disability rating to 20 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2012). However, separate ratings may be assigned for limitation of flexion and extension. Accordingly, increased ratings for his right knee disability will be warranted if the evidence shows ankylosis of the knee in full extension, or in slight flexion between 0 and 10 degrees (30 percent rating under Diagnostic Code 5256); limitation of flexion to 45 degrees (10 percent rating under Diagnostic Code 5260); or limitation of extension to 20 degrees (30 percent under Diagnostic Code 5261). 38 C.F.R. § 4.71a (2012). Based on the evidence of record, the Board finds that an increased rating based on limitation of motion is not warranted. Specifically, a January 2011 VA examination specifically addressed limitation of motion. The Veteran complained of a history of right knee giving way and instability. He also complained of periodic stiffness and weakness in his right knee. Although he did not use a cane, he stated that his treating physicians advised him to use joint assistive devices. Upon examination, crepitus and tenderness was noted. His measured range of motion included 70 degrees of flexion and only 15 degrees of extension. After repetitive motion, his range of motion diminished to 15 degrees of extension and 50 degrees of flexion. While there was objective evidence of pain while in motion, there was no indication as to whether this pain was additionally limiting. Ankylosis was not shown. Therefore, as ankylosis of the knee in full extension, or in slight flexion between 0 and 10 degrees, limitation of flexion to 45 degrees or limitation of extension to 20 degrees has not been shown, an increased rating based on limitation of motion is not warranted pursuant to those Diagnostic Codes. In addition, while the limitation of extension to 15 degrees warranted a 20 percent rating, a separate compensable rating for limitation of flexion is not warranted unless flexion is limited to 45 degrees or less. The Veteran's flexion was limited to only 50 degrees after repetitive motion. Therefore, a separate compensable rating for limitation of flexion was not warranted. In considering the appropriate rating under the pertinent diagnostic codes, the Board has also considered functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness on the observed range of motion. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). However, functional limitation resulting in function loss warranting a higher or separate compensable rating has not been shown. Although the Veteran has routinely complained of pain when moving his knee, there has been no indication of additional limitation due to pain beyond that shown on repetitive motion at the examination, and any additional loss after repetitive motion was has been considered. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of an increased rating based on limitation of motion from January 28, 2011, to March 24, 2011. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Instability prior to March 24, 2011 While an increased rating based on limitation of motion is not warranted prior to March 24, 2011, the Board has also considered whether a separate rating is warranted prior to March 24, 2011, based on instability of the Veteran's right knee joint. To warrant a separate rating, the evidence must show removal of the semilunar cartilage with residual symptoms (10 percent rating under Diagnostic Code 5259); dislocation of the semilunar cartilage with frequent episodes of locking, pain, and effusion in the joint (20 percent rating under Diagnostic Code 5258); or recurrent subluxation or lateral instability (a 10 percent for slight symptoms, 20 percent for moderate symptoms, and 30 percent for severe symptoms under Diagnostic Code 5257). 38 C.F.R. § 4.71a (2012). Based on the evidence of record, the Board finds that a separate rating based on instability of the knee or tear of the semilunar cartilage is not warranted. The record shows that the Veteran was treated for symptoms related to semilunar cartilage pathology, which resulted in a partial arthroscopic medial and lateral meniscectomy in November 2008. However, those symptoms mainly related to limitation of motion and were compensated by the ratings already assigned. To assign any additional rating would constitute pyramiding because separate symptoms that were not already compensated are not shown. 38 C.F.R. § 4.14 (2012). As for any indication of subluxation or lateral instability, no such symptoms were shown prior to March 24, 2011. Specifically, at the January 2007 VA examination, the Veteran specifically denied episodes of giving way, or instability. He also denied any episodes of dislocation or subluxation. Upon examination, no dislocation or instability was observed. At the January 2011 VA examination, the Veteran complained of weakness and difficulty walking. He also complained of symptoms such as giving way, instability, and stiffness. However, upon physical examination, some tenderness and tenderness was observed, but there was no instability found. Significantly, there has been no objective clinical evidence of symptoms such as subluxation or lateral instability prior to March 24, 2011. Therefore, the Board finds that a separate rating based on injury to the semilunar cartilage or any sort of instability is not warranted. The preponderance of the evidence is against the assignment of any separate rating. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As of May 1, 2012 On March 21, 2011, the Veteran went a right knee arthroplasty and, pursuant to a July 2011 rating decision, he was granted a 100 percent disability rating from March 24, 2011, to May 1, 2012. Although he was originally assigned a 30 percent rating for the period since May 1, 2012, a subsequent rating decision in September 2012 increased assigned a 60 percent following a total rating for knee replacement, effective May 2, 2012. 38 C.F.R. § 4.71a, Diagnostic Code 5055 (2012). Under Diagnostic Code 5055, a 60 percent rating is warranted when the prosthetic knee replacement is accompanied by chronic residuals consisting of severe painful motion or weakness in the affected extremity. The 60 percent rating is the maximum allowable schedular rating based on symptoms. A 100 percent rating is assigned for one year following replacement of the joint. 38 C.F.R. § 4.71a (2012). The Veteran was assigned a 100 percent rating for his right knee replacement from March 24, 2011 to May 1, 2012, in excess of one year. Thus, the 100 percent rating under Diagnostic Code 5055 is no longer applicable. Moreover, as he currently receives the highest allowable schedular rating for his right knee, a rating in excess of 60 percent is not warranted pursuant to Diagnostic Code 5055. Additionally, now that his disability has been recategorized under Diagnostic Code 5055, the consideration of a separate disability rating based on instability is not necessary as no instability is shown and if it were shown would be rated as a chronic residual. A higher rating for a right knee disability would require amputation of the leg at the upper third, one-third of the distance from perineum to knee, measured from the perineum. 38 C.F.R. § 4.71a, Diagnostic Code 5161 (2012). No amputation is shown. Therefore, the Board finds that the preponderance of the evidence is against the assignment of any higher rating as of May 1, 2012. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Other Considerations In considering the appropriate disability rating, the Board has also considered the Veteran's statements that his right knee disability is worse than the ratings he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability of his right knee according to the appropriate diagnostic codes. Competent evidence concerning the nature and extent of the Veteran's right knee disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings provided in the examination reports directly address the criteria under which knee disabilities are rated. The Board will consider whether referral for an extraschedular evaluation is warranted. The question of an extraschedular rating is a component of a claim for an increased rating. Bagwell v. Brown, 9 Vet. App. 337 (1996). Although the Board may not assign an extraschedular rating in the first instance, the Board must specifically adjudicate whether to refer a case for extraschedular consideration when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. Thun v. Peake, 22 Vet. App. 111 (2008). The evidence does not indicate that Veteran's disability picture could not be adequately contemplated by the applicable schedular rating criteria. Specifically, the Board has reviewed all of his relevant symptoms related to the issues on appeal, and concludes that there are no symptoms that were not addressed by the applicable diagnostic codes. Mittleider v. West, 11 Vet. App. 181 (1998). Moreover, the Board has explained why the Veteran's symptoms do not merit ratings greater than the ones assigned. Specifically, his ranges of motion were not so limited as to warrant increased ratings, and there was no clinical evidence of instability. Therefore, the Veteran's symptoms are not so unusual that they are outside the schedular criteria. The Board finds that the applicable schedular rating criteria are adequate in this case. In addition, the Board finds that the Veteran's disability picture does not include exceptional factors, and referral for consideration of the assignment of a disability rating on an extraschedular basis is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008); Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). Therefore, based on evidence of record, the Board determines that an increased rating based on limitation of motion is not warranted for any period on appeal. Moreover, a separate rating based on instability or injury to the semilunar cartilage is not warranted. In addition, no higher rating is warranted as of May 1, 2012. The preponderance of the evidence is against the claim for increased ratings and the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A rating in excess of 10 percent for a right knee disability for the period prior to January 28, 2011, is denied. A rating in excess of 20 percent for a right knee disability for the period from January 28 to March 24, 2011, is denied. A rating in excess of 60 percent for residuals of a right knee arthroplasty for the period since May 1, 2012, is denied. REMAND In an April 2013 statement, the Veteran's representative asserted that the Veteran was unemployable due to his service-connected disabilities. When a veteran submits a claim seeking an increased rating for a service-connected medical disability, it is construed as a claim for the highest rating possible, to include entitlement to TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). If the issue of entitlement to TDIU is raised by the evidence of record, it is part of the underlying appeal. However, as that issue has not been developed by the RO, it must be first considered there prior to Board review. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a letter informing him of the evidence required to establish entitlement to TDIU. 2. Acquire the Veteran's treatment records from the VA Medical Center in San Juan, Puerto Rico, or from any other VA treatment center dated since November 2012. 3. Then readjudicate the claim for TDIU. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. The appellant has the right to submit additional evidence and argument on the matter or 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs