Citation Nr: 1316095 Decision Date: 05/16/13 Archive Date: 05/29/13 DOCKET NO. 09-38 844 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for a right knee disability. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1981 to November 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine, that continued a 10 percent evaluation for residuals of right knee trauma with mild to moderate anterior cruciate ligament (ACL) laxity and degenerative changes. In June 2008, the Veteran submitted a notice of disagreement and subsequently perfected his appeal in September 2009. His case is currently under the jurisdiction of the VA RO in Detroit, Michigan. In a July 2009 rating decision, the Detroit RO granted a separate 10 percent evaluation for residuals of right knee trauma with degenerative changes effective December 1, 2008. As the Veteran is challenging the disability rating assigned for his right knee disability, and the record raises assertions that he is unemployable because of this service-connected disability, the determination as to whether he is entitled to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is part and parcel of the determination of the increased rating claim. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). While the Board has jurisdiction over this matter, the claim for TDIU is remanded to the RO for further development, as discussed more fully below. The issue of entitlement to 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, DC. VA will notify the Veteran if further action is required on his part. FINDING OF FACT Throughout the entire claims period, the Veteran's service-connected right knee disability has been manifested by no more than mild instability, arthritis, and painful motion with flexion limited to no less than 110 degrees and extension limited to no more than 0 degrees. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for service-connected residuals of right knee trauma with laxity have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.71a, Diagnostic Code 5257 (2012). 2. The criteria for a 10 percent disability rating, but not greater, have been met for residuals of right knee trauma with degenerative changes for the entire period on appeal. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5010 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the 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); 38 C.F.R. § 3.159(b); 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). These notice requirements apply to all five elements of a service-connection claim (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). Dingess v. Nicholson, 19 Vet. App. 473 (2006). 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. Id. A January 2008 letter fulfilled all the above-described notice requirements. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA treatment records. The Veteran specifically indicated in his August 2007 claim that he received all of his treatment at the VA Medical Center in Ann Arbor, Michigan and that there were no private treatment records to obtain. The RO also provided the Veteran with VA examinations for his right knee disability in February 2008 and May 2009. The examiners obtained a complete history from the Veteran, considering his complaints, and provided thorough physical examinations, including the appropriate range of motion testing. The examinations of record are adequate for determining the disability rating for the Veteran's service-connected right knee disability. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Additionally, there is no medical evidence indicating that there has been a material change in the severity of the Veteran's service-connected right knee disability since he was last examined in May 2009. 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 examination was conducted. See VAOPGCPREC 11-95. A new VA examination is not necessary at this time. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this claim, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Merits of the Claim Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2012). In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2012). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2012). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2012). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran's service-connected residuals of right knee trauma with mild laxity have been evaluated as 10 percent disabling under Diagnostic Code 5257. Additionally, he has been assigned a separate 10 percent for residuals of right knee trauma with degenerative changes under Diagnostic Codes 5010-5260. He seeks a higher evaluation for the entire period on appeal. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27 (2012). Diagnostic Code 5010 provides the rating criteria for arthritis due to trauma. Diagnostic Code 5260 provides the rating criteria for limitation of flexion of the leg. Under Diagnostic Code 5257, a 10 percent evaluation is assigned for other impairment of the knee with slight recurrent subluxation or lateral instability. A 20 percent evaluation is assigned for other impairment of the knee with moderate recurrent subluxation or lateral instability. A 30 percent evaluation is assigned for other impairment of the knee with severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2012). Under Diagnostic Code 5010, arthritis, due to trauma, as substantiated by x-ray findings is rated as degenerative arthritis (under Diagnostic Code 5003). 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2012). Under Diagnostic Code 5003, 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. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). Diagnostic Codes 5260 and 5261 provide the criteria for rating limitation of motion of the knee and leg. Normal range of motion for the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II (2012). Under Diagnostic Code 5260, a noncompensable rating is assigned for flexion of the leg limited to 60 degrees. A 10 percent rating is assigned for flexion of the leg limited to 45 degrees. A 20 percent rating is assigned for flexion of the leg limited to 30 degrees. And a 30 percent rating is assigned for flexion of the leg limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2012). Under Diagnostic Code 5261, a noncompensable rating is assigned for extension of the leg limited to 5 degrees. A 10 percent rating is assigned for extension of the leg limited to 10 degrees. A 20 percent rating is assigned for extension of the leg limited to 15 degrees. A 30 percent rating is assigned for extension of the leg limited to 20 degrees. A 40 percent rating is assigned for extension of the leg limited to 30 degrees. And a 50 percent rating is assigned for extension of the leg limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2012). Additionally, the evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Where arthritis results in painful motion of the joint, the rating criteria allow for at least the minimum compensable evaluation for the joint. 38 C.F.R. § 4.59 (2012). Separate ratings under Diagnostic Code 5260 and Diagnostic Code 5261 may be assigned for disability of the same joint. See VAOPGCPREC 9-04. The General Counsel for VA, in a precedent opinions dated July 1, 1997, (VAOPGCPREC 23-97) (and as reiterated in VAOPGCPREC 9-98, August 14, 1998) held that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257. General Counsel stated that when a knee disorder is already rated under Diagnostic Code 5257, the Veteran must also have limitation of motion which at least meets the criteria for a 0 percent rating under Diagnostic Code 5260 (flexion limited to 60 degrees or less) or 5261 (extension limited to 5 degrees or more) in order to obtain a separate rating for arthritis. General Counsel subsequently held in VAOPGCPREC 9-98 that a separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. See also Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997). Where additional disability is shown, a veteran rated under Diagnostic Codes 5257 can also be compensated under Diagnostic Code 5003 and vice versa. The tenets of 23-97 have already been applied in the present appeal. The Veteran first underwent a VA examination in conjunction with his present claim in February 2008. At that time, he complained of a dull aching pain in his right knee with associated weakness, stiffness, occasional swelling, and intermittent giving way, without redness or locking. He reported corticosteroid injections one month prior with three weeks of relief and using Tramadol, both with no adverse side effects. He also indicated that he experienced flare ups of pain, which he rated as 8 out of 10, approximately four times per month, but no incapacitating episodes. He denied any episodes of dislocation or recurrent subluxation or any orthopedic surgeries. Although he was able to walk for 15 minutes with his knee brace with no difficulty, he reported mild difficulty with walking and an inability to perform any recreational activities. He reported being unemployed. The examiner observed no effusion, erythema, medial or lateral joint line tenderness, or instability to varus or valgus testing. He noted minimal crepitus and that the ACL was a 2B when compared to the contralateral and recorded range of motion measurements from 0 to 125 degrees with pain noted at the extreme of flexion. Although the Veteran reported increased pain with repetitive motion, the examiner did not observe any additional limitation of motion due to pain, fatigue, weakness, or lack of endurance with repetitive motion. X-rays showed mild degenerative changes, osteophytes in the patellofemoral compartment, and joint space narrowing. The examiner diagnosed the Veteran with moderate degenerative arthritis of the right knee and concluded that this resulted in mild impairment of daily occupational activities. The Veteran was more recently examined in May 2009. At that time, he complained of constant dull right knee pain with superimposed intermittent sharp pain and associated weakness, stiffness, swelling, intermittent heat, and difficulty squatting and bending. He indicated that he had undergone a right knee arthoscopy in August 2008 due to persistent symptoms of instability. Prior to the surgery, he reported intermittent locking and catching occurring approximately once every three months. Following surgery, the locking episodes resolved, but he reported three to four "give way" episodes daily and numerous falls. He indicated that his knee brace helping with the giving way and falls and that he could walk on even terrain for approximately one quarter of a mile and stand for approximately one hour. He reported having flare ups of increased pain, which he rated as 9 out of 10, caused by bending, lifting, walking, weather, and overuse, but no episodes of bed rest. The examiner observed antalgic gait, normal color without warmth (no effusion), slight swelling, tenderness to palpation over the medial and lateral epicondyles, crepitus, mild laxity on varus and valgus testing of the medial and lateral collateral ligaments, and no laxity of the anterior and posterior cruciate ligaments. She recorded range of motion measurements from 0 to 110 degrees of flexion with pain at the extremes of the range of motion and no evidence of increased pain, instability, weakness, fatigability, or loss of motion with repetitive motion. She concluded that the Veteran's right knee disability was manifested by multicompartmental osteoarthritis, chronic ACL tear, and a degenerative lateral meniscal tear with residuals of chronic pain, weakness, and instability. The medical evidence also includes VA treatment records that discuss the Veteran's right knee disability and are generally consistent with the VA examinations. A November 2007 MRI showed evidence of degenerative joint disease and a chronic ACL tear. A December 2007 VA treatment record noted passive range of motion of the right knee from 0 to 120 degrees with no pain and the Veteran's complaints of feelings of instability and falls. Additionally, August 2008 VA treatment records from the Veteran's right knee arthroscopy noted post-operative diagnoses of right knee ACL deficiency, degenerative joint disease of the lateral compartment and medial osteophyte, and a degenerative lateral meniscus tear. In addition to the medical evidence, the Veteran has provided lay statements relating his symptoms of right knee pain and feelings of instability. He argues that the criteria for a finding of moderate instability have been shown. The evidence of record does not establish that the Veteran's service-connected right knee disability warrants more than a 10 percent disability rating under his currently assigned Diagnostic Code 5257 at any point throughout the appeals period. There is no evidence of moderate recurrent subluxation or lateral instability to warrant a higher rating of 20 percent. The only objective testing to find any instability, from the May 2009 VA examination, characterized the instability as mild. Mild instability does not equate to moderate instability to warrant a higher rating of 20 percent. Rather, it more closely approximates the slight instability contemplated by the 10 percent rating. The Board notes the Veteran's contentions of feelings of instability and falls. However there is no indication that this is the result of moderate instability, as substantiated by objective testing. Although an increased rating cannot be granted under Diagnostic Code 5257, the Board finds that a separate 10 percent evaluation under Diagnostic Code 5010 is appropriate for the right knee for the entire period on appeal. As noted above, a November 2007 VA MRI and the x-rays associated with the February 2008 VA examination showed degenerative arthritis of the right knee. The Veteran has complained of painful motion throughout the appeals period, including on his first VA examination in February 2008. Under 38 C.F.R. § 4.59, this warrants the minimal compensable rating for arthritis of the right knee joint, which is 10 percent. See 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003 (2012); VAOPGCPREC 9-98; see also Degmetich, supra. Although the RO has only assigned a separate 10 percent evaluation under Diagnostic Codes 5010-5260 effective December 1, 2008, the Board sees no reason that the Veteran is not entitled to this additional rating for arthritis with painful motion for the entire period on appeal. Thus, affording the Veteran the full benefit of the doubt, the Board finds that a separate 10 percent rating under Diagnostic Code 5010 is warranted for the right knee for the entire period on appeal. See 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5010 (2012). However, although an additional 10 percent rating is appropriate, a rating in excess of 10 percent is not warranted under Diagnostic Code 5010. There is no evidence showing flexion limited to 30 degrees or less or extension limited to 15 degrees or more. The Veteran's lowest measured range of motion, even when considering the point at which pain began, was 110 degrees of flexion and 0 degrees of extension. This ranges of motion simply does not meet the criteria for a 20 percent rating under either Diagnostic Code 5260 or 5261. As such, the Board finds that a separate rating in excess of 10 percent for arthritis is not warranted at any time during the appeals period. There is also no indication that the Veteran experiences any additional functional loss due to pain, weakness, fatigability, incoordination or pain on movement of a joint to warrant a higher rating. See 38 C.F.R. §§ 4.40, 4.45 (2012); see also DeLuca, supra. Significantly, the Board considered the point at which the Veteran first experienced pain when determining his limitation of motion. Further, while the VA examiners noted the Veteran's complaints of additional pain with repetitive motion, there was not additional loss of motion or other symptoms, other than those already recognized by the Veteran's currently assigned evaluation. The Board emphasizes that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Additionally, there is no indication that the Veteran's right knee disability warrants an increased rating under any other diagnostic code relating to the knees. The claims folder contains no medical evidence indicating that the Veteran's right knee disability is manifested by ankylosis, flexion limited to 60 degrees or less, extension limited to 5 degrees or more, impairment of the tibia and fibula, genu recurvatum, or symptoms other than those discussed above. As such, an increased rating cannot be assigned under Diagnostic Codes 5256 or 5260-5263. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256-5258, 5260-5263 (2012). To the extent that the medical evidence has shown a meniscus tear, there is no indication that this has resulted in symptoms other than those already compensated by the Veteran's currently assigned evaluations, namely pain and instability. Frequent locking and effusion has not been shown. To the contrary, the Veteran only reported intermittent locking (occurring once every three months). An additional evaluation under Diagnostic Codes 5258 or 5259 would result in the above prohibited pyramiding and cannot be assigned. See 38 C.F.R. § 4.14 (2012); see also Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991); VAOPGCPREC 23-97 and VAOPGCPREC 9-98, supra. Further, the Board notes that there is no indication in the medical evidence of record that the Veteran's right knee symptomatology warranted other than the currently assigned disability ratings throughout the appeal period. The assignment of staged ratings is not warranted. See Hart, supra. The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court set forth a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, as a threshold issue, the Board must determine whether the veteran's disability picture is contemplated by the rating schedule. If so, the rating schedule is adequate and an extraschedular referral is not necessary. If, however, the veteran's disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second step of the inquiry, that is whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." These include marked interference with employment and frequent periods of hospitalization. Third, if the first and second steps are met, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, a veteran's disability picture requires the assignment of an extraschedular rating. With regard to the Veteran's service-connected right knee disability, the evidence of record does not reflect that the Veteran's disability picture is so exceptional as to not be contemplated by the rating schedule. There is no unusual clinical picture presented, nor is there any other factor which takes the disability outside the usual rating criteria. The rating criteria for the Veteran's currently assigned 10 percent disability ratings contemplate his complaints of pain and limited range of motion due to pain. 38 C.F.R. §§ 4.40 and 4.45 adequately contemplate any functional loss due to pain, weakness, fatigability, incoordination, or pain on movement of the joint. Further, although the Veteran's arthritis does not result in compensable limited motion, 38 C.F.R. § 4.59 allows for the minimum compensable evaluation for his painful motion. As the Veteran's disability picture is contemplated by the rating schedule, the threshold issue under Thun is not met and any further consideration of governing norms or referral to the appropriate VA officials for extraschedular consideration is not necessary. In short, the evidence does not support the proposition that the Veteran's service-connected right knee disability presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and to warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2012). Referral of this issues to the appropriate VA officials for consideration of an extraschedular evaluation is not warranted. For all of the foregoing reasons, the Board finds that an evaluation in excess of 10 percent under Diagnostic Code 5257 is not warranted at any time during the appeals period and that a separate evaluation of 10 percent (but not higher) under Diagnostic Code 5010 is warranted for the entire period on appeal for the Veteran's right knee disability. In reaching the above-stated conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to an evaluation in excess of 20 percent for his right knee disability, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). (CONTINUED NEXT PAGE) ORDER Entitlement to a disability rating in excess of 10 percent for residuals of right knee trauma with laxity is denied. Entitlement to a disability rating of 10 percent for residuals of right knee trauma with degenerative changes is granted from August 31, 2007 to July 31, 2008, subject to the laws and regulations governing the award of monetary benefits. REMAND After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of his claim of entitlement to TDIU. As noted above, in Rice v. Shinseki, the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. See Rice, supra. At the time of his May 2009 VA examination, the Veteran reported to the examiner that he was unemployed due to his service-connected right knee disability. The issue of TDIU is raised by the record and it is properly before the Board. A review of the record shows that further development is needed to properly adjudicate the TDIU claim. The law provides that TDIU may be granted upon a showing that a veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disability or disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). While the Veteran has been afforded previous VA examinations to address his service-connected right knee disability, a specific opinion as to his unemployability and the effect of all of his service-connected disabilities on his employability has not been rendered. The Board finds that the Veteran should be afforded an appropriate VA examination to determine whether he is unable to secure or maintain substantially gainful employment as a result of his service-connected disabilities. As the Court explained in Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991), the Board may consider only independent medical evidence to support its medical findings. The Court went on to say that, if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. See Colvin at 175. For the reasons described above, the Veteran's claim of entitlement to TDIU must be remanded for a new VA examination and opinion. Accordingly, the case is REMANDED for the following actions: 1. Thereafter, schedule the Veteran for a VA examination to determine the effect of his service-connected disabilities on his employability. The examiner must review pertinent documents in the Veteran's claims file in conjunction with the examination. That such a review took place must be noted in the examination report. The examiner should opine as to whether the Veteran is unable to secure or maintain substantially gainful employment solely as a result of his service-connected disabilities. A complete rationale should be provided for any opinion offered. 2. After completing the above actions and any other development that may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim of entitlement to TDIU should be adjudicated including consideration of whether to submit the claim to the Under Secretary for Benefits or Director of Compensation and Pension Service for extraschedular consideration. If the claim remains denied, a statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the case should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the rating of the claim on the evidence of record if it is an original claim or denial if it is a claim to reopen or for increase. 38 C.F.R. § 3.655(b) (2012). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs