Citation Nr: 1316630 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 04-14 592 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to an initial disability rating in excess of 20 percent for status post internal derangement of the left knee, for the period from May 18, 2004 through July 21, 2008. 2. Entitlement to an initial disability rating in excess of 30 percent for total left knee replacement, status post internal derangement of the left knee, for the period beginning on September 1, 2009. 3. Entitlement to an initial disability rating in excess of 10 percent for arthritis of the left knee, for the period from May 18, 2004 through June 1, 2010. 4. Entitlement to total disability rating due to individual unemployability (TDIU). REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. J. Vecchiollo, Counsel INTRODUCTION The Veteran served on active duty from August 1986 to November 1989. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island, which granted service connection for arthritis of the left knee and assigned a 10 percent rating, effective November 22, 2002. Thereafter, in a January 2005 rating decision, the RO rephrased the issue as status post internal derangement of the left knee, assigning a 20 percent rating from May 26, 2004. In a March 2005 rating decision, the RO revised the effective date for the 20 percent rating for internal derangement of the left knee to May 18, 2004, and granted a separate 10 percent rating for arthritis of the left knee effective May 18, 2004. In August 2005, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. In October 2005, the Board remanded this case for further evidentiary development. In an August 2008 rating decision, the RO again recharacterized the issue as total left knee replacement, status post internal derangement of the left knee, assigning a total temporary 100 percent rating effective July 22, 2008 through August 31, 2009, and a 30 percent rating beginning on September 1, 2009. Thereafter, in a May 2009 decision, the Board remanded the issues of entitlement to an initial disability rating in excess of 20 percent for status post internal derangement of the left knee for the period from May 18, 2004 through July 21, 2008, and entitlement to an initial disability rating in excess of 10 percent for arthritis of the left knee beginning May 18, 2004, for further evidentiary development. The case was then returned to the Board and the issues were remanded for further development in December 2010. In a September 2009 rating decision, the RO announced its intent to close out the separate 10 percent rating for arthritis of the left knee effective July 22, 2008, determining that the continuation of that separate rating was clearly and unmistakably erroneous following the grant of a total temporary 100 percent rating for total left knee replacement, status post internal derangement of the left knee, effective July 22, 2008, as such violated the pyramiding rule. See 38 C.F.R. § 4.14 (2012). In a January 2010 rating decision, the RO discontinued the separate 10 percent rating for arthritis of the left knee effective July 22, 2008. In a March 2010 rating decision, the RO revised the effective date for discontinuing the separate 10 percent rating for arthritis of the left knee to June 1, 2010. In an April 2012 supplemental statement of the case, entitlement to an initial disability rating in excess of 10 percent for arthritis of the left knee for the period between May 18, 2004 and June 1, 2010, was denied. In June 2012, the Board again remanded the claim for further development and consideration. The Board finds a claim for TDIU should be adjudicated in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). The issues of entitlement to an initial disability rating in excess of 30 percent for total left knee replacement, status post internal derangement of the left knee, for the period beginning on September 1, 2009 and 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. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. The preponderance of the evidence does not demonstrate severe lateral instability of the left knee from May 18, 2004 through July 21, 2008. 2. The preponderance of the evidence does not demonstrate left knee flexion limited to 30 degrees from May 18, 2004 through July 21, 2008; the Veteran was in receipt of a temporary total rating from July 22, 2008 through August 31, 2009, and the Veteran was already in receipt of service connection for the highest rating possible due to symptomatology from limitation of flexion of the left knee from September 1, 2009 through June 1, 2010. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for internal derangement of the left knee from May 18, 2004 through July 21, 2008 are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2012). 2. The criteria for an evaluation in excess of 10 percent for arthritis of the left knee with limitation of flexion from May 18, 2004 through June 1, 2010 are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.71a, Diagnostic Codes 5260, 5261 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). The present case involves "downstream" issues, as the initial claims for service connection was granted in the rating decision on appeal, and the appellant disagrees with the evaluations assigned. In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated-it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In such a case, the appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008); see also Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. VA has obtained service treatment records, assisted the appellant in obtaining post service medical evidence, afforded the appellant physical examinations with medical opinions, and afforded the appellant the opportunity to give testimony before the Board. All available records relevant to the issue on appeal have been obtained and associated with the appellant's claims file; the appellant has not contended otherwise. The Board remanded this claim multiple times. He was afforded examinations regarding the nature and severity of his left knee disabilities. Ongoing treatment records and Social Security Administration (SSA) disability records were obtained. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). As noted above, the Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the officer who chairs a hearing fully explain the issues and suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ asked specific questions directed at identifying the nature and severity of the Veteran's left knee disabilities, and inquired as to the treatment the Veteran had received and was currently receiving in an attempt to identify any outstanding treatment records or other pertinent evidence not currently associated with the claims file. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c) (2). As such, the Board finds that no further action pursuant to Bryant is necessary and the Veteran is not prejudiced by a decision at this time. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and testifying at a hearing. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis The Board has reviewed all the evidence in the appellant's claims file and in the electronic Virtual VA file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 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 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 which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2011); see also 38 C.F.R. §§ 4.4, 4.59 (2012). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). When the maximum rating for limitation of motion of a joint has already been assigned, a finding of pain on motion cannot result in a higher rating. Johnson v. Brown, 9 Vet. App. 7 (1997). A precedent opinion of VA's General Counsel has held that separate ratings under Diagnostic Code 5260 (leg, limitation of flexion) and Diagnostic Code 5261 (leg, limitation of extension) may be assigned for disability of the same joint. VAOPGCPREC 9-2004, 69 FR 59988 (2004). A. Status Post Internal Derangement of the Left Knee From May 18, 2004 Through July 21, 2008 The Veteran contends that he is entitled to an increased rating for internal derangement of the left knee during this period. However, the Board finds that the preponderance of the evidence is against a higher rating during this period. In this case, the Veteran's internal derangement of the left knee is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257. Diagnostic Code 5257 provides for assignment of a 10 percent rating when there is knee impairment with slight recurrent subluxation or lateral instability; a 20 percent rating when there is knee impairment with moderate recurrent subluxation or lateral instability; or a 30 percent evaluation for knee impairment with severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. While the Veteran complained of left knee instability during the period in question, at no time is his knee instability shown to be anything but moderate and at no time is subluxation or lateral instability reported as severe for the left knee. The Veteran's private physician, in a letter dated in May 2004, noted that he examined the Veteran that month and he had left knee instability, +3 anterior draw test, and a torn left anterior cruciate ligament. A VA examination was conducted on May 26, 2004. The knees were symmetrical. The left knee showed slight effusion. A VA treatment note dated in April 2008 noted that the Veteran had mild genu varus, and mild instability to anterior to posterior and medial to lateral testing. A VA treatment note dated in May 2008 revealed that left knee Lachman's test was 2+, anterior drawer was positive and there was guarding with slight pivot. The left knee was stable to varus/valgus stress. A left knee X-ray showed varus alignment. Total left knee replacement was recommended. Of note, the Veteran was service-connected for multiple left knee disorders during this period, and symptoms pertaining to his arthritis cannot be considered in evaluating his internal derangement. 38 C.F.R. § 4.14 (the evaluation of the same manifestation or disability under different diagnoses is to be avoided). Thus, considering the objective findings of no more than moderate instability, along with the Veteran's subjective report of left knee instability, the Board finds the 20 percent rating assigned to the left knee reflecting moderate impairment, adequately addresses the objective findings and the subjective complaints. Accordingly, the claim for an increased rating for internal derangement of the left knee from May 18, 2004 through July 21, 2008 is denied. At no time during the pendency of this claim, has the disability been more or less disabling than currently rated. B. Arthritis of the Left Knee The Veteran was in receipt of a 10 percent rating for degenerative joint disease in the left knee due to limitation of flexion from May 18, 2004 through June 1, 2010. Degenerative arthritis under Diagnostic Code 5003 is rated based on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When the limitation of motion of the joint involved is noncompensable under the appropriate diagnostic codes, as in this case, an evaluation of 10 percent is assignable. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Limitation of flexion of the leg to 60 degrees warrants a noncompensable evaluation. Flexion limited to 45 degrees warrants a 10 percent rating. Flexion limited to 30 degrees warrants a 20 percent evaluation. Flexion limited to 15 degrees warrants a 30 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2012). Limitation of extension of either leg to 5 degrees warrants a noncompensable evaluation. A 10 percent evaluation requires that extension be limited to 10 degrees. A 20 percent evaluation requires that extension be limited to 15 degrees. A 30 percent evaluation requires that extension be limited to 20 degrees. A 40 percent evaluation requires that extension be limited to 30 degrees. A 50 percent evaluation requires that extension be limited to 45 degrees or more. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II (2012). 1. May 18, 2004 through July 21, 2008 Upon review of the record, the Board finds that at no time throughout this period is a disability rating in excess of 10 percent warranted for limitation of flexion of the left knee. For the next higher, 20 percent disability rating for limitation of flexion of the knee, limitation of flexion of the leg must be to 30 degrees. The evidence demonstrates that the Veteran's limitation of flexion of the left knee most closely approximates the criteria for a 10 percent disability rating. May 2004 VA examination noted left knee flexion to 110 degrees with pain at end point. In his May 2008 letter, the Veteran's private physician noted that the Veteran's left knee motion was 5 degrees extension to approximately 125 degrees of flexion. The medical evidence does not reflect that the Veteran's subjective reports of left knee pain and weakness caused functional loss sufficient to warrant a higher disability rating based on limitation of flexion. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, Mitchell, supra. The Board notes that the Veteran did not meet the loss of left knee flexion to warrant a 10 percent rating, but was awarded the rating based on painful motion. Moreover, at no time was extension shown to be limited to a compensable degree. Thus, a higher rating or separate rating based on limited extension is not warranted. In summary, the 10 percent rating assigned for arthritis of the left knee adequately addresses the symptomatology associated with the disability, and an increased rating is denied. 2. July 22, 2008 through August 31, 2009 The Veteran was in receipt of a total rating during this period following his left knee replacement. Therefore, assigning a higher rating for his limitation of motion of the left knee would further violate the rule against pyramiding. See 38 C.F.R. § 4.14 (the evaluation of the same manifestation or disability under different diagnoses is to be avoided). In addition, as the maximum rating for amputation of a leg is 90 percent (see 38 C.F.R. § 4.71a, Diagnostic Code 5160), any separate evaluation assigned for left knee arthritis during this period violates the amputation rule. 38 C.F.R. § 468 (the combined evaluation for disabilities of an extremity shall not exceed the rating for amputation at the elective level). Moreover, as the RO has determined that there was a clear and unmistakable error in the continuation of a separate rating for left knee arthritis under Diagnostic Code 5260 following his knee replacement, a retroactive increase would only further compound the error and is not warranted. See 38 C.F.R. § 3.400(o) (a retroactive increase or additional benefit will not be awarded after basic entitlement has been terminated). In any event, a rating in excess of 10 percent during this period has not been shown. Specifically, on VA examination in December 2008, left knee motion revealed flexion to 110 degrees with pain, and 80 degrees without pain. The Veteran's extension was noted to be almost normal. 3. September 1, 2009 through June 1, 2010 The Veteran is already in receipt of a 30 percent rating under Diagnostic Code 5055 due to total left knee replacement during this period, and entitlement to an even higher rating is being remanded for further development. Diagnostic Code 5055 contemplates loss of knee motion, weakness and pain. He is already in receipt of the highest rating possible (30 percent) under Diagnostic Code 5260 for loss of knee flexion. A January 2010 VA treatment note revealed full extension. Moreover, as noted above, as the RO has determined that there was a clear and unmistakable error in the continuation of a separate rating for left knee arthritis under Diagnostic Code 5260 following his knee replacement, a retroactive increase would only further compound the error and is not warranted. See Id. Moreover, assignment of a higher rating based on limitation of motion would constitute impermissible pyramiding. 38 C.F.R. § 4.14. Therefore, entitlement to a higher rating is not warranted. C. Additional Considerations The Board has considered other diagnostic codes but finds no appropriate code that would allow for ratings in excess of those already assigned. There is no indication of ankylosis of the knee or impairment of the tibia and fibula, to warrant an evaluation in excess of the ratings currently assigned. Thus, consideration under Diagnostic Codes 5256 and 5262 is not warranted. See 38 C.F.R. § 4.71a. The Board acknowledges the Veteran's statements and the lay statements submitted in response to this claim, discussing his symptomatology and the reports that the Veteran's ability to walk and stand are limited. Such symptomatology has been contemplated by the Board in arriving at the decisions above. Accordingly, the Board concludes that the medical findings are of greater probative value as to the severity of the Veteran's knee disabilities than lay assertions assessing his functional limitations. The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology and provides for additional or more severe symptoms than currently shown by the evidence; thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. In reaching the above 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, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to an increased initial rating for status post internal derangement of the left knee, for the period from May 18, 2004 through July 21, 2008, is denied. Entitlement to an increased rating for arthritis of the left knee, for the period from May 18, 2004 through June 1, 2010, is denied. REMAND While further delay is regrettable, the Board finds that additional development is needed on the claim for a higher rating for the status post total knee replacement from September 1, 2009. A VA treatment record dated in January 2010 noted the Veteran reporting that he did well following his left knee replacement until he fell backwards in October 2010 bending his knee underneath him. He reported to the Boston Medical Center Emergency Room where they noted his knee was septic and washed it out. It was noted he has been residing a rehabilitation facility since then. He stated that he was advised by doctors at that facility that he needed a revision of the knee replacement. An x-ray conducted that day revealed no significant interval change and that the alignment was anatomic, with no significant periprosthetic lucency or significant knee joint effusion. The assessment was that the prosthesis appears well seated. The 2012 VA examiner noted the Veteran resides at the St. Josephs Nursing Center in Dorchester, Massachusetts. Based on the Veteran's statement to VA medical providers, it appears he has received rehabilitation services and been seen by medical personnel there. There are no treatment records from this facility in the file. Additionally, as the Veteran suffered a fall in October 2009 which re-injured his knee, records from his emergency room visit should also be requested. In addition, the Veteran's claim for an increased rating for his left knee includes consideration of entitlement to a TDIU since the issue is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Specifically, during his hearing, the Veteran alleged he left his job as a mechanic due to knee pain, and was in receipt of Social Security benefits due in part to his left knee. The Board notes that the Veteran has not been provided with VCAA notice of the requirements for a TDIU claim, nor has relevant employment information been obtained. Thus, on remand, the RO/AMC should provide corrective notice and request that the appropriate TDIU form be completed. Relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Send the Veteran proper VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that advises the Veteran about what is needed to substantiate a claim for a TDIU. In addition, ask the Veteran to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to obtain relevant employment information. 2. Ask the Veteran to provide a completed release form so medical records from the Boston Medical Center concerning his fall in October 2009 and all medical records from treatment and physical therapy received at the St. Joseph's Rehabilitation and Nursing Care Center since October 2009 can be obtained. After securing any necessary release, the RO/AMC should request these records. If the requested records are not available, the Veteran should be notified of such. 3. Obtain current VA treatment records dating since June 2012 from the Boston VA Medical Center. 4. After completion of the above and any additional development deemed necessary, the RO/AMC should adjudicate the claim for a TDIU, to include extraschedular consideration if necessary. In addition, the RO/AMC should readjudicate the claim for an evaluation in excess of 30 percent for the left total knee replacement. If the claims remain denied, he and his representative should be furnished an appropriate supplemental statement of the case, which includes pertinent laws for TDIU, and be provided an opportunity to respond. Thereafter, the case should be returned to the Board, if in order. The appellant 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). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs