Citation Nr: 1320291 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 09-28 560 ) 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 service-connected subluxation, degenerative joint disease of the right knee. 2. Entitlement to a disability rating in excess of 10 percent for service-connected limitation of motion, degenerative joint disease of the right knee. 3. Entitlement to service connection for a lumbar spine disability, claimed as secondary to the service-connected right knee disability. 4. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and former spouse. ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1992 to June 1993. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This case was previously before the Board in August 2011. As discussed in more detail below, the Board finds that there was substantial compliance with its remand orders and that it may therefore proceed with a determination of the issue on appeal. See Stegall v. West, 11 Vet. App. 268 (1998). In February 2011, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge, sitting at the RO. A transcript of the hearing is associated with the claims file. The issue of entitlement to a 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. FINDINGS OF FACT 1. The Veteran's service-connected subluxation, degenerative joint disease of the right knee is manifested by weakened movement, excess fatigability, incoordination, pain on movement, swelling, disturbance of locomotion, constant use of a knee brace and cane, anterior instability of 5-10 millimeters (mm), medial-lateral instability of 5mm-10mm, with a history of recurrent patellar subluxation that most nearly approximates severe instability. 2. The Veteran's service-connected limitation of motion, degenerative joint disease of the right knee is manifested by limitation of motion no worse than 60 degrees without pain and no limitation of extension. 3. The Veteran's lumbar strain disability has been related to military service. CONCLUSIONS OF LAW 1. The criteria for a rating of 30 percent, but no greater, for service-connected subluxation, degenerative joint disease of the right knee have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R §§ 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5010-5257 (2012). 2. The criteria for a rating in excess of 10 percent for service-connected limitation of motion, degenerative joint disease of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5010-5260 (2012). 3. The criteria for service connection for a lumbar strain disability have been met. 38 U.S.C.A. § 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist VA has statutory duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Appropriate notice was provided in a December 2007 letter. As for the duty to assist, the Veteran's service treatment records (STRs), VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not claimed to be in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c)(2). The Veteran has not identified any additional relevant medical records that have not been obtained and associated with her file. The Veteran was afforded VA examinations in December 2011, February 2008, May 2007, and December 2006. The VA examinations are sufficient, as they considered the Veteran's statements and provided explanations for the opinions stated as well as the medical information necessary to apply the appropriate rating criteria. Thus, VA's duty to assist with respect to obtaining an examination has been met. 38 C.F.R. § 3.159(c)(4). VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claims at this time. II. Compliance with Prior Board Remands The Board remanded this matter once in August 2011 to schedule the Veteran for a VA examination to determine the current severity of her service-connected right knee condition, the impact of all of her service-connected disabilities on her employability, and the nature and etiology of her claimed back disorder. The Veteran was provided with an adequate VA examination in December 2011. See 38 C.F.R. § 3.159(c)(4). Thus, it appears there was substantial compliance with the August 2011 remand orders and the Board may continue with its determination. Stegall, 11 Vet. App. at 271; see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). III. Increased Rating- Right Knee Service connection for degenerative changes, right knee and subluxation, right knee was granted in a February 2007 rating decision with an initial 10 percent evaluation assigned for both. A June 2007 rating decision increased the Veteran's disability rating for subluxation, degenerative joint disease, right knee to 20 percent disabling and continued limitation of motion, degenerative joint disease, right knee at 10 percent disabling. The most recent June 2008 rating decision confirmed and continued these disability ratings. The Veteran contends that an increased evaluation is warranted as she has experienced progressively worse pain and instability of the right knee. Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. In determining the degree of limitation of motion, several regulatory provisions are taken into consideration: the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the Veteran's ordinary activity. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. The effects of pain on use, functional loss, and incoordination were taken into account in assessing the range of motion of the Veteran's service-connected right knee disabilities. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App 505 (2007). As discussed below, the Board has found that staged ratings are not warranted in this claim. 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. Subluxation The Veteran's service-connected subluxation, degenerative joint disease of the right knee is currently assigned a 20 percent rating under DC 5010-5257 for moderate subluxation. 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. Throughout the claims period, the Veteran has consistently reported buckling and giving way of the right knee. During the February 2011 Travel Board hearing, the Veteran testified that her right knee gives out and she falls approximately once per week. See Veteran's hearing transcript, pg. 10, February 2011. During the December 2011 VA examination, the examiner found that the Veteran's right knee caused weakened movement, excess fatigability, incoordination, pain on movement, swelling, atrophy of disuse, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. Additionally, the Veteran had anterior instability of 5mm to 10mm and medial-lateral instability of 5mm to 10mm in the right knee. The Veteran was also found to constantly require a knee brace and a cane to assist her with walking. Imaging studies showed right knee severe tricompartment degenerative/traumatic arthritis with minimal remaining joint space medially and laterally. The examiner opined that the Veteran needs a right total knee replacement. A May 2010 letter from Dr. P. J. Y., the Veteran's chiropractor, states the Veteran has gross instability, severe pain and arthritis in her right knee and that she uses a cane and rigid brace to ambulate. Based on Veteran's right knee giving out once a week, anterior instability of 5mm to 10mm and medial-lateral instability of 5mm to 10mm, and constantly requiring a knee brace and a cane to assist her with walking, the Board finds that the Veteran's subluxation, degenerative joint disease of the right knee most nearly approximates severe instability under DC 5257. Therefore, an increased evaluation of 30 percent, but no higher, is warranted for severe subluxation, degenerative joint disease of the right knee. See DC 5010-5257. Limitation of Motion The Board finds that a rating in excess of 10 percent for limitation of motion, degenerative joint disease of the right knee is not possible. See DCs 5010-5260. Thus, the Board confirms and continues the Veteran's 10 percent evaluation under DCs 5010-5260 for arthritis with a noncompensable limitation of motion. See DCs 5003, 5010 (a rating of 10 percent is appropriate for each major joint or group of minor joints affected by noncompensable limitation of motion). Throughout the claims period, x-rays have shown degenerative joint disease in the Veteran's right knee. See VA Examinations, December 2011, February 2008, May 2007, and December 2006. An increased rating of 20 percent is not warranted as there is no x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003. With regards to range of motion, 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. Limitation of flexion of a leg to 60 degrees warrants a noncompensable rating, limitation to 45 degrees warrants a 10 percent evaluation, limitation to 30 degrees warrants a 20 percent evaluation and limitation to 15 degrees warrants a 30 percent disability evaluation. 38 C.F.R. § 4.71a, DC 5260. Limitation of extension of a leg warrants a 10 percent evaluation when it is limited to 10 degrees and a 20 percent evaluation when it is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5261. Throughout the claims period, the Veteran has manifested noncompensable limitation of motion that most nearly approximates full extension (0 degrees) and flexion to at least 60 degrees without pain. During the December 2011 VA examination, the Veteran demonstrated initial right knee flexion to 75 degrees without evidence of painful motion and 100 degrees with evidence of pain. The Veteran demonstrated full and painless right knee extension. The examiner found the Veteran's right knee had less movement than normal, weakened movement, excess fatigability, and pain on movement. The examiner also found that the Veteran had severe patellar crepitus and pain on passive motion beyond 60 degrees in the right knee. Prior examinations showed the Veteran with a greater degree of right knee flexion. See VA Examinations, February 2008, May 2007, and December 2006. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations, VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. With consideration of the DeLuca factors, it is clear that the Veteran's right knee range of motion has manifested flexion that is limited, at most, to 60 degrees. See VA Examination, December 2011. The Board therefore finds that the Veteran's right knee has manifested motion that most nearly approximates 60 degrees of flexion with consideration of all relevant factors. Flexion limited to 60 degrees is noncompensable under DC 5260. 38 C.F.R. § 4.71a, DC 5260. The Veteran has not manifested compensable limitation of extension as extension has not been shown to be limited. 38 C.F.R. § 4.71a, DC 5261. Therefore, a 10 percent evaluation under DCs 5010-5260 for arthritis with a noncompensable limitation of motion is appropriate. See DCs 5003, 5010, 5260. The Board has considered whether there is any other schedular basis for granting a higher rating, but has found none. There is no evidence of right knee ankylosis, dislocated semilunar cartilage with frequent episodes of "locking," with pain and effusion into the joint, removal of semilunar cartilage, symptomatic, impairment of the tibia and fibula, or genu recurvatum. See DCs 5256, 5258, 5259, 5262, 5263. In sum, the Veteran's right knee disability warrants two separate ratings throughout the entire claims period; the first for severe subluxation, degenerative joint disease evaluated as 30 percent disabling under DC 5010-5257 and the second for limitation of motion, degenerative joint disease under DC 5010-5260 evaluated as 10 percent disabling. The Board notes that the assignment of separate ratings does not violate the rule against pyramiding in this case as each diagnostic code contemplates distinct and separate symptomatology. See 38 C.F.R. § 4.14; see also VAOPGCPREC 23-97 and VAOPGCPREC 09-98. 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). The Board finds that the rating criteria contemplate the Veteran's right knee disability, which is manifested by symptoms such as severe instability, painful noncompensable limitation of motion and x-ray evidence of degenerative joint disease. These manifestations are contemplated in the rating criteria and the Board has assigned separate evaluations to account for the Veteran's distinct symptoms. The rating criteria are therefore adequate to evaluate the Veteran's disability and referral for consideration of extraschedular rating is not warranted. IV. Service Connection- Lumbar Spine The Veteran contends she has a lumbar spine disability that is related to her military service, specifically her service-connected right knee disability has affected her gait and created problems with her spine. See, e.g., Veteran's Statement in Support of Claim, December 2007; Veteran's hearing transcript, February 2011, pgs. 3, 13-14. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service-connection on a secondary basis requires evidence sufficient to show that: (1) a current disability exists; and (2) the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the nexus between a service-connected right knee disability and subsequent lumbar spine condition, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Therefore, medical evidence will be required to establish a medical diagnosis of the Veteran's current lumbar spine condition and to address the question of whether her service connected right knee disability caused or aggravated her spine condition. In determining whether service connection is warranted for a disability, VA 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 the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although 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 her 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, 128 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to a veteran). The record shows the presence of a current back disorder. February 2008 x-rays of the Veteran's lumbosacral spine showed minimal changes of lipping and spurring at the lumbar intervertebral disc margins at L2-3 and 3-4, slight narrowing of L3-4 with the lower lumbar spine neural canal anterior and posterior dimension diminished. The impression was minimal hypertrophic changes of lipping and spurring and an element of congenital spinal stenosis in the lower end of the spinal canal. In a May 2010 letter, Dr. P. J. Y. references the February 2008 lumbar spine x-rays and states that the Veteran has central canal stenosis. Additionally x-rays of the Veteran's thoracolumbar spine were performed during the December 2011 VA examination, which showed her lumbar spine was normal and there were no congenital defects. The December 2011 VA examiner diagnosed the Veteran with lumbar strain. The Veteran sought private chiropractic treatment for her back pain and the record contains an August 2007 correspondence from the Veteran's private chiropractor, Dr. C. A. In this letter, Dr. C. A. states that he has treated the Veteran from August 2005 to January 2007 for intermittent right and left sacroiliac strain. He opined that the chronic strains of these sacroiliac joints are attributed to the improper balance of the Veteran's lower extremities. The rationale provided is that without proper stability of the lower extremity, abnormal forces are exerted on the legs, hips and spine. The VA treatment record reflects that in April 2007, the Veteran complained of back pain as a result of her right knee disability causing her to have an unstable gait. The doctor examined the Veteran and noted back pain due to right knee pain. In February 2008, the Veteran was provided with a VA examination of her spine. The Veteran stated that after right knee surgery, she was walking funny, which caused back issues. She underwent treatment one to two times a week from a chiropractor. The examiner found the Veteran did not walk with a limp but did walk slowly and cautiously. After a detailed physical examination, the examiner opined that the Veteran's lumbar spine condition was not due to or caused by her service connected right knee disability in service. The rationale provided was the examiner's clinical experience and expertise as an orthopedic surgeon. The examiner noted that he did not review the Veteran's private medical records. A May 2010 report of consultation and examination by the Veteran's private chiropractor, Dr. P. J. Y., was submitted by the Veteran. The doctor noted that the Veteran's lumbar spine alignment was altered via compensation for severe deficit of her lower extremities, as well as several injuries where she has fallen, with such falls attributed directly to her right knee injury. The doctor stated that the Veteran suffers from central canal stenosis, which has no cure but requires pain management. The condition is permanent and progressive in nature. Dr. P. J. Y. opined that it was more likely than not, if not irrefutable, that the Veteran's constant and severe pain in her lumbar spine is directly and causally related to the primary injury of the right knee, which is service-connected. In December 2011, the Veteran was provided with a second VA spine examination. The examiner diagnosed the Veteran with lumbar strain. The Veteran complained that her axial lumbar pain started in the later 1990s as a result of limping, brought about by her service connected right knee disability. After performing a physical examination of the Veteran's spine and reviewing the Veteran's c-file, the examiner opined that her lumbar strain was less likely than not proximately due to or the result of her service connected condition. The rationale provided was that the Veteran's lumbar spine condition is typical lumbar strain that is common in a very large percentage of the general population. There is usually a genetic predisposition to development of lumbar degenerative disc disease as well as non-specific low back pain, the latter of which applies to the Veteran. The Veteran's limping is no more a force inducing effect than moderate occupational demands and there is no medical evidence to support a nexus between limping and the Veteran's lumbar strain. Additionally, limping has not been shown to increase the incidence of same leg adjacent joint disease as per peer-reviewed medical literature (Journal of Bone and Joint Surgery). By analogy, similar conclusions can be made pertaining to the effect on lumbar spine, as the medical literature remains silent on this issue. In reviewing the evidence of record, the Board is aware of the conflicting medical evidence as to whether the Veteran's lumbar spine disorder is causally related to her service-connected right knee disability. However, the Board concludes that the evidence of record weights in favor of service connection for the Veteran's lumbar strain disorder. In this respect, the February 2008 VA examiner opined that the lumbar spine condition was not caused by or a result of the right knee injury in service. The conclusory rationale provided for the opinion was the examiner's clinical experience and expertise as an orthopedic surgeon. No supporting facts or medical literature were cited to support the examiner's finding. Miller v. West, 11 Vet. App. 345, 348 (1998) (a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions). Additionally, the examiner did not address whether the lumbar spine disorder was aggravated by the service-connected right knee disability. While the December 2011 VA examiner also found the Veteran's lumbar spine condition less likely than not caused by her service connected right knee condition, the supporting rationale was lacking. The examiner discussed an allegedly analogous situation with cites to medical literature but then specifically noted that the medical literature remains silent on the issue at hand. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300-01 (2008) (review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion; it is the factually accurate, fully articulated, sound reasoning, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion). Thus, these VA examinations have minimal probative value. In contrast, there are two positive nexus opinions in the record from the Veteran's private chiropractors, Drs. C. A. and P. J. Y. that provide specific reasoning for attributing the Veteran's current lumbar spine condition to her service-connected right knee disability. The Board finds that the private doctor's opinions are more persuasive with respect to the etiology of the Veteran's lumbar strain. As the evidence weights in favor of the Veteran's claim, the Board will grant service connection for the Veteran's lumbar strain disability. ORDER Entitlement to a disability rating of 30 percent, but no higher, for service-connected subluxation, degenerative joint disease of the right knee is granted. Entitlement to a disability rating in excess of 10 percent for service-connected limitation of motion, degenerative joint disease of the right knee, is denied. Entitlement to service connection for a lumbar strain disability is granted. REMAND The Veteran contends that a grant of a TDIU is warranted as she is unemployable due to a combination of her service-connected disabilities. A remand is necessary for additional evidentiary development. The Veteran is service-connected for subluxation, degenerative joint disease of the right knee at 30 percent disabling, limitation of motion, degenerative joint disease of the right knee at 10 percent disabling, ACL, meniscus tear and degenerative joint disease of the left knee at 10 percent disabling, acute to subacute tears of the ligaments of the right ankle at 10 percent disabling, arthritis of the right foot at 10 percent disabling, and ACL, meniscus tear and degenerative arthritis of the left knee at 10 percent disabling for an overall combined disability evaluation of 70 percent. By combining orthopedic disabilities she meets the minimum schedular criteria for a grant of a TDIU. See 38 C.F.R. § 4.16(a) (one disability rated 60 percent or if there are two or more service-connected disabilities, one must be rated at 40 percent or more and the combined rating must be 70 percent or more). VA will grant a TDIU when the evidence shows the veteran is precluded, by reason of her service-connected disabilities, from obtaining or maintaining "substantially gainful employment" consistent with her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91. "[T]he central inquiry in determining whether a veteran is entitled to a TDIU rating is whether that veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Veteran's service connected lumbar strain has not yet been rated by the RO. Additionally, the RO has not previously considered the Veteran's lumbar strain as part of her TDIU claim. However, prior to the RO's adjudication of the TDIU issue, the Board finds that further evidentiary development is necessary-to include issuing appropriate notice pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) and obtaining a pertinent medical opinion as to the effect of all of the Veteran's service-connected disabilities, including lumbar strain, on her employability. See 38 C.F.R. § 3.159(c)(4). The Veteran is hereby notified that it is her responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. Accordingly, the case is REMANDED for the following action: 1. Issue the Veteran a VCAA notice letter for the claim for a TDIU. 2. After completion of the foregoing, schedule an appropriate VA examination to ascertain whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's service-connected disabilities (subluxation, degenerative joint disease of the right knee; limitation of motion, degenerative joint disease of the right knee; ACL, meniscus tear and degenerative joint disease of the left knee; acute to subacute tear of the ligaments of the right ankle; arthritis of the right foot; ACL, meniscus tear and degenerative arthritis of the left knee; and lumbar strain), either singly or taken together, render her unable to secure or follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to her age or to any impairment caused by non-service-connected disabilities. The examiner should specifically comment on the Veteran's claim that she lost her job as a manager of a 72-unit apartment complex in 2007 due to her service-connected knee difficulties and the Veteran's more recent employment as a receptionist and administrative assistant. A full rationale must be provided for all stated medical opinions. Note: if the examiner concludes that the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why this opinion would be speculative and what, if any, additional evidence would permit such an opinion to be made. 3. After completion of the above, readjudicate the issue on appeal. If the benefit remains denied, the Veteran and her representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration, if otherwise in order. The appellant 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). ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs