Citation Nr: 1316947 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 09-42 576 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for left knee instability. 2. Entitlement to a disability rating in excess of 20 percent for degenerative joint disease (DJD) of the left knee, status post anterior cruciate ligaments (ACL) reconstruction with limited motion, to include osteomyelitis. 3. Entitlement to a disability rating in excess of 10 percent for left knee scars. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served from August 1987 to May 1988; he had no active duty other than for training purposes. This matter comes before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, including, most recently, rating decisions dated September 2008 and January 2012. In the January 2012 decision, the RO continued the Veteran's 20 percent rating for left knee instability, and assigned a separate 20 percent rating for left knee degenerative joint disease with limited motion, and a separate 10 percent rating for left knee scars, both effective as of November 2, 2011-the date of the Veteran's most recent VA examination. In May 2011, the Board remanded this case for further development. The case has returned to the Board for appellate review. The issue of entitlement to a TDIU due to service-connected disabilities 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. FINDINGS OF FACT 1. The Veteran's left knee lateral instability is characterized as no worse than moderate. 2. As of September 1, 2005, the Veteran's DJD of the left knee, status post ACL reconstruction with limited extension manifested with painful motion. 3. As of November 2, 2011, the Veteran's DJD of the left knee, status post ACL reconstruction, has left knee extension, with consideration of objective evidence of painful motion, which is limited to 20 degrees. 4. As of September 1, 2005, the Veteran has one painful scar of the left knee. None of his left knee scars are both unstable and painful; of the head, face, or neck; or nonlinear. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for left knee instability have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. § 3.102, 3.321, 4.40, 4.45, 4.59, 4.71a Diagnostic Codes (DC) 5000-5257 (2012). 2. As of September 1, 2005, the criteria for a 10 percent disability evaluation, and no higher, for DJD of the left knee, status post ACL reconstruction with limited extension have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. § 3.102, 3.321, 4.40, 4.45, 4.59, 4.71a Diagnostic Codes (DC) 5003-5261 (2012). 3. As of November 2, 2011, the criteria for a 30 percent disability evaluation, and no higher, for DJD of the left knee, status post ACL reconstruction with limited extension have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. § 3.102, 3.321, 4.40, 4.45, 4.59, 4.71a Diagnostic Codes (DC) 5003-5261 (2012). 4. As of September 1, 2005, the criteria for a 10 percent disability evaluation, and no higher, for a painful left knee scar have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. § 3.102, 3.321, 4.118 Diagnostic Code (DC) 7804 (2012). 5. The criteria for a disability rating in excess of 10 percent for a painful left knee scar have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. § 3.102, 3.321, 4.118 Diagnostic Code (DC) 7804 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to provide the Veteran with notification of the information and evidence necessary to substantiate the claim submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements regarding an increased rating were accomplished in an April 2008 letter that was provided before the September 2008 adjudication of the claim. The letter notified the Veteran of the information and evidence needed to substantiate his increased rating claim. He was told that the evidence must show that his service-connected disability had gotten worse. The letter also provided notice of the type of evidence necessary to establish a disability rating or effective date for the disability under consideration, pursuant to the holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Accordingly, the Board finds that VA satisfied its duty to notify under the VCAA in accordance with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1). This claim was remanded by the Board for additional development in May 2011. There has been substantial, if not full, compliance with the Board's remand directives, insofar as VA obtained outstanding treatment records since August 2008; notified the Veteran by an October 2011 letter that he may submit statements describing fully the various symptoms and impairment resulting from his left knee disability, and its impact on his ability to work; and provided him with a VA examination of his left knee in November 2011. The November 2011 VA examiner discussed the Veteran's left knee medical history with him and recorded those findings in the report, which complied with the Board's remand instructions. A VA medical opinion will be considered adequate if it (1) is based upon consideration of the Veteran's prior medical history, (2) describes the disability in sufficient detail so that the Board's "'evaluation of the claimed disability will be a fully informed one,'" Ardison v. Brown, 6 Vet.App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet.App. 121, 124 (1991)), and (3) "supports its conclusion with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007). The Board finds that the August 2005, July 2006, February 2007, August 2008, and November 2011 VA examination reports are adequate because the examiners discussed the Veteran's medical history with him, described his service-connected left knee disorders in sufficient detail, and supported their conclusions with objective test results. The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues has been obtained. The Veteran's service, VA, and private treatment records, as well as service personnel records, have been obtained, and he has been provided with VA examinations in connection with the present claim. The Veteran has not indicated there are any additional records that VA should seek to obtain on his behalf. Thus, the Board finds that reasonable efforts were made by VA to satisfy its duty assist and to obtain evidence necessary to substantiate the Veteran's claim. No further assistance to develop evidence is required. Analysis As an initial matter, the Board notes that a September 2009 Statement of the Case identifies a September 2008 rating decision as the rating action on appeal. However, pertinent VA treatment records were constructively of record within one year of the September 2005, March 2006, March 2007, and June 2007 rating decisions. As such, the September 2005 rating decision did not become final and is the rating action on appeal. See Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); see also 38 C.F.R. § 3.156(b). While additional rating decisions and VA treatment records preceding the Veteran's May 2005 claim for an increased rating for his left knee disability are also of record, the Board finds that they are not currently on appeal because they have either become final or pertain to the Veteran's requests for temporary 100 percent ratings for convalescence following surgeries, which have been resolved by the RO and are not on appeal. Nothing in this decision disturbs the Veteran's existing temporary 100 percent ratings under 38 C.F.R. § 4.30. The current claim arises out of the Veteran's May 2005 request-through his representative-for an increased evaluation of his left knee disability. At the time of his May 2005 claim for an increased rating for his left knee disability, the Veteran was in receipt of a temporary 100 percent rating under 38 C.F.R. § 4.30, which expired on September 1, 2005, on which date he began receiving a 20 percent rating for his left knee DJD status post ACL reconstruction with instability. The Veteran received a new temporary 100 percent rating from January 30, 2006 through January 31, 2007, and his 20 percent rating resumed on February 1, 2007. Effective November 2, 2011, the Veteran began receiving an additional 20 percent rating for limitation of motion of his left knee, and an additional 10 percent rating for left knee scars. The Veteran contends that his left knee disability warrants an increased rating. In his May 2005 claim, the Veteran, through his representative, asserted that his left knee rating should be greater than 10 percent due to the multiple surgeries it has required. In February 2006, the Veteran, through his representative, asserted that his left knee rating should be greater than 20 percent due to the frequency and number of surgical interventions required to treat the condition. In April 2006, the Veteran's representative requested that his rating be increased because he does not feel that his surgery was successful. In March 2007, the Veteran's representative asserted that the Veteran should receive increased compensation for his left knee disability due to bone loss. In January 2009, the Veteran's representative reported that the Veteran's left knee remains unstable and causes chronic pain. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Thus, the analysis in the following decision is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). 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). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The RO has evaluated the Veteran's left knee instability at 20 percent under 38 C.F.R. § 4.71a, Diagnostic Codes 5000-5257, as of September 1, 2005; his left knee DJD status post ACL reconstruction with limited motion, to include osteomyelitis, at 20 percent under 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5261, as of November 2, 2011; and his left knee scars at 10 percent under 38 C.F.R. § 4.118, Diagnostic Code 7804, as of November 2, 2011. Under 38 C.F.R. § 4.71a, there are several diagnostic codes that may potentially be employed to evaluate impairment resulting from service-connected knee disorders. Diagnostic Codes (DCs) 5003 and 5010, for evaluation of degenerative and traumatic arthritic changes, are applicable to the knee. 38 C.F.R. § 4.71a, DCs 5003, 5010. Diagnostic Code (DC) 5010 applies to traumatic arthritis and provides that such is evaluated under the criteria for 38 C.F.R. § 4.71a, DC 5003. These diagnostic codes are discussed in greater detail above. Knee impairment with recurrent subluxation or lateral instability warrants a 10 percent evaluation if it is slight; a 20 percent evaluation if it is moderate; or, a 30 percent evaluation if it is severe. 38 C.F.R. § 4.71a, DC 5257. Limitation of flexion of a leg warrants a noncompensable evaluation when flexion is limited to 60 degrees. A 10 percent evaluation is appropriate if flexion is limited to 45 degrees and a 20 percent evaluation is assigned if flexion is limited to 30 degrees. Flexion that is limited to 15 degrees is evaluated as 30 percent disabling. 38 C.F.R. § 4.71a, DC 5260. Limitation of extension of a leg is noncompensable when extension is limited to 5 degrees. A 10 percent evaluation is warranted with extension limited to 10 degrees and a 20 percent evaluation when it is limited to 15 degrees. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, DC 5261. Additional rating criteria are found under DCs 5256 (ankylosis of the knee), DC 5258 (which provides for a 20 percent rating for dislocated, semilunar cartilage with frequent episodes of locking, pain and effusion into the joint), 5259 (which provides for a 10 percent rating for symptomatic removal of the semilunar cartilage), and 5262 (impairment of the tibia and fibula). VA's General Counsel has clarified that for a knee disability rated under DC 5257 or DC 5259 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under DC 5260 or DC 5261 need not be compensable, but must at least meet the criteria for a zero-percent rating under those codes. A separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59 and DC 5003. VAOPGCPREC 9-98 (1998). VA's General Counsel has more recently held that separate ratings are also available for limitation of flexion and limitation of extension under DCs 5260 and 5261. VAOPGCPREC 9-2004 (2004). For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. The knee is considered a major joint. 38 C.F.R. § 4.45(f) (2012). With respect to scars, under 38 C.F.R. § 4.118, Diagnostic Code 7804, a 10 percent rating applies when 1 or 2 scars are unstable or painful. A 20 percent rating applies when 3 or 4 scars are unstable or painful. A 30 percent rating applies when 5 or more scars are unstable or painful. Pursuant to Note 2, if one or more scars are both unstable and painful, 10 percent is added to the evaluation that is based on the total number of unstable or painful scars. A disability rating is to be assigned as of the earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within one year from such date. Otherwise, it is to be assigned as of the date of receipt of claim. 38 C.F.R. § 3.400(o)(2). The earliest dates of ratings are assigned herein. At his August 2005 VA examination, the Veteran reported having constant left knee pain, and having flare ups every 3 to 4 days, lasting 1.5 to 2 hours, during which he avoids walking. The examiner did not find left knee ankylosis. The examiner found that the Veteran's left knee was unstable laterally, and characterized its severity as slight. The examiner did not find dislocated semilunar cartilage with frequent episodes of locking, pain and effusion into the joint. The examiner did not find removal of symptomatic semilunar cartilage. On range of motion testing, the Veteran had flexion to 128 degrees and extension to 0 degrees, including with repetitive motion and with consideration of any effects of functional loss due to such factors as pain, weakness, excess fatigability, and incoordination. The examiner did not find nonunion or malunion of the Veteran's tibia and fibula. The examiner did not find genu recurvatum. The VA examiner diagnosed the Veteran with DJD of the left knee with ACL reconstruction, and with residuals of removal of hardware from the left tibia, with scar. The examiner found that the Veteran's left tibia osteomyelitis had resolved. The examiner found that the Veteran's left knee disability prevents him from standing for longer than 2 hours at a time, from lifting more than 10 to 15 pounds, and from squatting. With respect to scars, the August 2005 VA examiner found that the Veteran had four scars from surgery. The first was 17cm by 4cm, and was light, flat and nontender. The second was 6cm by 4mm, and was pink, indented, and tender. The third was 2 cm by 1 cm, and was light, flat, and nontender. The fourth was 2 cm by 1 cm, and was pink-light, flat, and nontender. The scars had no ulcers, and resulted in no adhesions, functional loss, heat, redness, or open wounds. At his July 2006 VA examination, the Veteran stated that he could stand for more than one hour, but less than three hours and that he could walk more than 1/4 mile but less than one mile. The examiner reported that the Veteran did not have left knee ankylosis. The examiner found that the Veteran did not have subluxation or instability of the left knee. The examiner did not find dislocated semilunar cartilage with frequent episodes of locking, pain and effusion into the joint; although there was effusion, there was no locking, and no patellar or meniscus abnormality. The examiner did not find removal of symptomatic semilunar cartilage. On range of motion testing, the Veteran had flexion to 120 degrees and extension to 0 degrees, including with repetitive motion and with consideration of the effects of functional loss due to such factors as pain, weakness, excess fatigability, and incoordination. The examiner did not find nonunion or malunion of the Veteran's tibia and fibula. The examiner did not find genu recurvatum. The VA examiner diagnosed the Veteran as post left ACL reconstruction. The examiner found that the Veteran's left knee disability limited his prolonged standing, climbing, walking and squatting, and prevented him from lifting more than 30 pounds. As to scars, the July 2006 VA examiner found that the Veteran had multiple surgical scars on his left knee, but did not further describe them. At his February 2007 VA examination, the Veteran stated that he fell in August 2006 and has since had constant pain, swelling, giving out, and popping of his left knee. He reported that he could stand for more than one hour, but less than three hours, and that he was unable to walk more than a few yards. The examiner did not find left knee ankylosis. The examiner found that the Veteran's anterior/posterior instability of the left knee was moderate; no severity for lateral instability was provided. The examiner did not find dislocated semilunar cartilage with frequent episodes of locking, pain and effusion into the joint. The examiner did not find removal of symptomatic semilunar cartilage. On range of motion testing, the Veteran had flexion to 100 degrees and extension to 0 degrees, including with repetitive motion and with consideration of the effects of functional loss due to such factors as pain, weakness, excess fatigability, and incoordination. The examiner did not find nonunion or malunion of the Veteran's tibia and fibula. The examiner found no evidence of genu recurvatum. The VA examiner diagnosed the Veteran with residuals of DJD of the left knee, status post ACL reconstruction, to include osteomyelitis. The VA examiner clarified that the residuals of osteomyelitis of the left tibia had resolved, that he does not have any symptoms of osteomyelitis, and that no osteomyelitis is suspected. With respect to scars, the February 2007 VA examiner made no findings. At his August 2008 VA examination, the Veteran stated that he could stand for up to one hour and could not walk for more than 250 yards. The examiner did not find left knee ankylosis. The examiner found that the Veteran did not have subluxation or instability. The examiner did not find dislocated semilunar cartilage with frequent episodes of locking, pain and effusion into the joint. The examiner did not find removal of symptomatic semilunar cartilage. On range of motion testing, the Veteran had flexion to 125 degrees and extension to 0 degrees, including with repetitive motion and with consideration of the effects of functional loss due to such factors as pain, weakness, excess fatigability, and incoordination. The examiner did not find nonunion or malunion of the Veteran's tibia and fibula. The examiner did not find genu recurvatum. The examiner diagnosed the Veteran with residuals of DJD of the left knee status post ACL reconstruction, and with resolved osteomyelitis of the left tibia. The examiner found that the Veteran's left knee disability caused decreased concentration, decreased mobility, problems with lifting and carrying, lack of stamina, and pain, which lead to being assigned different duties at work as well as increased absenteeism. With respect to scars, the August 2008 VA examiner made no findings. At the November 2011 VA examination, the examiner did not find left knee ankylosis. The examiner found that the Veteran had unspecified instability of station, but no patellar subluxation. The examiner found that he had never had any meniscal (semilunar cartilage) condition or surgical procedure for same. On range of motion testing, the Veteran had flexion to 90 degrees and extension to 20 degrees, including with consideration of the effects of functional loss due to such factors as pain, weakness, excess fatigability, and incoordination; he was unable to perform repetitive use testing due to too much pain. The examiner found that he did not have a tibial or fibular impairment. The examiner did not find genu recurvatum. The examiner diagnosed the Veteran with DJD and instability of the left knee, and found that there has been no indication of osteomyelitis since 2005. The examiner found that his left knee disability caused limitation of walking to two blocks, limitation of standing to 30 minutes, and an impact on kneeling and squatting. With respect to scars, the November 2011 VA examiner found that the Veteran had four scars, measuring 4 by 17 cm, 4 by 6 cm, 1 by 2 cm, and 1 by 2 cm, on his lateral vertical knee, lower knee, upper anterior knee, and mid knee, respectively. All of the scars were linear. One scar was painful, as it was tender to palpation. None of the Veteran's scars were unstable. The examiner found that none of the Veteran's scars impact his ability to work. After reviewing all of the clinical evidence and subjective complaints since the effective date of service connection, the Board finds that the preponderance of the evidence shows that a disability rating in excess of 20 percent for the Veteran's left knee instability is not warranted under Diagnostic Code 5257 because he does not have severe recurrent subluxation or lateral instability. At most, the Veteran's left knee instability has been described as moderate. See, e.g., February 2007 VA examination report. The Board further finds that the evidence shows that a separate rating for limitation of motion under 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5261 is warranted throughout the appeal. As described above, the Veteran was receiving a temporary 100 percent rating at the time of his May 2005 claim, which expired as of September 1, 2005, and which this rating does not disturb. Therefore, the Board finds that a separate 10 percent rating under Diagnostic Codes 5003-5261 is warranted as of September 1, 2005, for the Veteran's painful left knee motion. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board further finds that a rating of 30 percent under Diagnostic Code 5003-5261 is warranted as of November 2, 2011, based on the VA examiner's finding that the Veteran's left knee extension, with consideration of objective evidence of painful motion, is limited to 20 degrees. Higher ratings are not warranted because the preponderance of the evidence shows that his left knee flexion was noncompensably disabling throughout the appeal and that his extension was not limited to 10 degrees or more prior to November 2, 2011, and was not limited to 30 degrees or more as of November 2, 2011. The Board further finds that the preponderance of the evidence shows that a separate rating of 10 percent, but no greater, for left knee scars under 38 C.F.R. § 4.118, Diagnostic Code 7804 is warranted throughout the appeal-i.e., as of September 1, 2005. The August 2005 VA examiner found that the Veteran had one tender scar on his left knee. Similarly, the November 2011 VA examiner found that the Veteran had one painful scar on his left knee that was tender to palpation. As such, the 10 percent rating is warranted as of September 1, 2005 for the Veteran's painful left knee scar. A higher rating is not warranted because the Veteran does not have more than one painful scar; does not have a scar which is both unstable and painful; does not have a scar of the head, face, or neck; and does not have any nonlinear scars. Additional separate ratings are not warranted because the Veteran does not have left knee ankylosis, dislocated or removed semilunar cartilage, compensable limitation of flexion, nonunion or malunion of the tibia and fibula, or genu recurvatum. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5259, 5260, 5262, 5263. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the applicable rating criteria adequately contemplate the manifestations of the Veteran's left knee disabilities, including instability, limitation of extension, and a painful scar. The rating criteria are therefore adequate to evaluate the left knee and referral for consideration of an extraschedular rating is not warranted. Moreover, even if the established schedular criteria are found to be inadequate to describe the severity and symptoms of the Veteran's disabilities, and presents other indicia of an exceptional or unusual disability picture, an award of an extra-schedular disability rating would not be in the interest of justice because the Veteran has already been compensated for his frequent periods of hospitalization due to surgery by his seven distinct temporary 100 percent ratings assigned under 38 C.F.R. § 4.30. The Board thus finds that referral for consideration of an extraschedular rating is unwarranted. ORDER A rating in excess of 20 percent for left knee instability is denied. Effective September 1, 2005, a rating of 10 percent, but no higher, for DJD of the left knee, status post ACL reconstruction with limited extension is granted, subject to the applicable criteria governing the payment of monetary benefits. Effective November 2, 2011, a rating of 30 percent, but no higher, for DJD of the left knee, status post ACL reconstruction with limited extension is granted, subject to the applicable criteria governing the payment of monetary benefits. Effective September 1, 2005, a rating of 10 percent, but no higher, for left knee scars is granted, subject to the applicable criteria governing the payment of monetary benefits. A rating in excess of 10 percent for left knee scars is denied. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In May 2011, the Board remanded, the issue of entitlement to a TDIU due to service-connected disabilities, stating: The [VA] examiner must opine as to the impact of [the Veteran's] left knee disability on his ability to work and employability. The examiner should opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that any service-connected disability or disabilities, either alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation. As correctly asserted by the Veteran's representative in an April 2013 written argument, a remand of the issue of entitlement to a TDIU due to service-connected disabilities is required so that a medical opinion on that issue can be rendered. Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders). Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of the nature and severity of his left knee disabilities their combined impact on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. Provide the Veteran with appropriate notice consistent with the Veterans Claims Assistance Act of 2000 (VCAA) on the issue of entitlement to a TDIU due to service-connected disabilities. 3. Ensure that all available, pertinent, and non-duplicative VA and private treatment records, dated since November 2011, are physically or electronically associated with the claims folder. 4. After associating any pertinent, outstanding records, afford the Veteran a VA examination to obtain an opinion, if possible, from a vocational specialist, as to whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities (i.e., left knee instability; DJD of the left knee, status post ACL reconstruction with limited extension; and left knee scars), either singularly or jointly, or the medications taken for such, taking into consideration his level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities. The claims file should be made available to and reviewed by the examiner. In offering any opinion, the examiner should take into consideration all the evidence of record, to include medical records as well as the Veteran's lay statements, accepted medical principles, and objective medical findings, as well as his education, experience and work history. All opinions expressed should be accompanied by a supporting rationale. 5. Then adjudicate the Veteran's claim of entitlement to a TDIU due to service-connected disabilities. Thereafter, readjudicate the appeal. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs