Citation Nr: 1322463 Decision Date: 07/15/13 Archive Date: 07/24/13 DOCKET NO. 11-14 257 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an increased rating (evaluation) greater than 10 percent for left knee osteoarthritis. 2. Entitlement to an effective date prior to May 21, 2010 for a 10 percent evaluation for service-connected left knee osteoarthritis. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from September 1959 to June 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, granted an increased rating to 10 percent for left knee osteoarthritis. In a Notice of Disagreement in October 2010, the Veteran appealed the 10 percent rating assigned, and also appealed from the May 2010 effective date assigned for the increase. The matter is now before the Board. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal that are not already of record. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. Throughout the entire rating period, left knee osteoarthritis has been productive of painful motion, with range of motion from zero to 115 degrees, to include limitation due to pain, weakness, and fatigability, and X-ray imaging has confirmed degenerative osteoarthritic changes of the knee. 2. A November 1961 rating decision which reduced the rating for the service-connected left knee disability to zero percent was not appealed, and became final. 3. No claim, either formal or informal, for increased rating for left knee osteoarthritis was reasonably raised prior to a May 2010 claim. 4. The Veteran has not identified clear and unmistakable error in a prior rating decision with respect to the assignment of a rating or reduction of rating or effective date. 5. May 21, 2010 is the earliest date on which it was factually ascertainable that left knee osteoarthritis met the criteria for a 10 percent rating. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for left knee osteoarthritis have not been met at any time during the rating period on appeal. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010, 4.118 (2012). 2. The criteria for an effective date earlier than May 21, 2010 for the grant of a 10 percent rating for left knee osteoarthritis are not met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.151, 3.156(c), 3.155, 3.159, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), as was done in this case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO provided a VCAA notice letter to the Veteran in June 2010, prior to the initial adjudication of the increased rating claim. The letter notified the Veteran of what information and evidence must be submitted to substantiate the claim, including a description of what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The letter also advised of how VA assigns effective dates. The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claim to the RO. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). For an increased-compensation claim, such as the Veteran's claim for a rating greater than 10 percent for left knee osteoarthritis, the US Court of Appeals of Veterans Claims had held that § 5103(a) required, at a minimum, that VA notify the claimant that, to substantiate a claim, the medical or lay evidence must show a worsening or increase in severity of the disability. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). Here, such notice was provided in the letter sent to the Veteran in June 2010. With regard to the Veteran's appeal for an earlier effective date for the grant of a 10 percent rating of his left knee disability, the VCAA letter advised of how VA assigns effective dates, specifically based on either date of claim or date entitlement arose. Based on the foregoing, timely and adequate notice was required, and was provided to the Veteran prior to the transfer and certification of this case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012); see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the "duty to assist is not boundless in its scope" and "not all medical records . . . must be sought - only those that are relevant to the veteran's claim"). Service records have been obtained, as have records of VA treatment. These pertinent records have been associated with the Veteran's claims file and reviewed in consideration of the issues before the Board. Additionally, the Veteran was afforded a VA examination in July 2010, during which the examiner, conducted a physical examination of the Veteran, reviewed objective radiographic imaging, took down the Veteran's history, considered the lay evidence presented, laid a factual foundation for the conclusions reached, and reached conclusions based on the examination that are consistent with the record. The Board notes that the examiner did not have the Veteran's claims file for review. However, given the nature of the examiner's assessment, this does not impact the sufficiency. Specifically, as this is a claim for an increased rating, the examiner was asked to review the Veteran's current symptoms and not to conduct a forensic analysis of his past symptomatology or to provide an opinion on the etiology of the already service-connected left knee disability. Thus, a review of the claims file was not necessary, see VAOPGCPREC 20-95 (a VA examiner must review a claimant's prior medical records when it is necessary to ensure a fully in-formed examination or to provide an adequate basis for the examiner's findings; however, for rating claims, history by the veteran may be sufficient), and the lack of such review was not detrimental. Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2012); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of their opinion). The Board finds that all necessary development has been accomplished; therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In addition to the evidence discussed above, the Veteran's statements in support of the claims are also of record. The Board has carefully considered such statements and concludes that no available outstanding evidence has been identified. Additionally, the Board has reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. For these reasons, the Board finds that the duties to notify and assist the Veteran in the development of these claims have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Increased Rating for Left Knee Osteoarthritis Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran was previously awarded service connection and assigned a disability rating in a prior rating decision. However, on a claim for increased rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found; such separate disability ratings are known as staged ratings. In Hart v. Mansfield, 21 Vet. App. 505, 511 (2007), the Court extended entitlement to staged ratings to claims for increased disability ratings where "the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings." Here, as the evidence discussed below shows, the left knee disability has not significantly changed during the period on appeal and a uniform evaluation is warranted. In the August 2010 rating decision on appeal, the Veteran was granted an increased rating of 10 percent effective May 21, 2010. The left knee osteoarthritis is rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC or Code) 5010 for arthritis, due to trauma, substantiated by X-ray findings. At the time of the last final rating decision (discussed in more detail in the next section), the Veteran's knee was rated under DC 5259. In the August 2010 rating decision on appeal, the RO changed the rating of the Veteran's knee from being evaluated under DC 5259 to evaluation under DC 5010. Assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case," Butts v. Brown, 5 Vet. App. 532, 538 (1993), and one Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. Any change in Diagnostic Code by a VA adjudicator must, however, be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). In addition, when assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA is generally required to consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain, weakness, premature or excess fatigability, and incoordination. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. Based on the most recent VA examination, the change of the evaluation from DC 5259 to DC 5010 was appropriate because, as discussed below, DC 5010 more accurately encompasses the Veteran's left knee symptomatology to the extent that there is X-ray evidence of arthritis and painful motion. The Board further notes that a schedular rating of greater than 10 percent is not available under DC 5259; thus, it is in the Veteran's favor to rate his service-connected left knee disability under a different Code. Under DC 5259, the current 10 percent rating contemplates symptomatic removal of semilunar cartilage. 38 C.F.R. §4.7a, DC 5259. A rating of greater than 10 percent is not available under this Code. The Code under which the Veteran is presently rated, DC 5010, arthritis due to trauma that is substantiated by X-ray findings is rated as degenerative arthritis. Degenerative arthritis is rated under DC 5003 which provides that degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When limitation of motion of the specific joint or joints involved is noncompensable (0 percent) under the appropriate diagnostic codes, DC 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a. Limitation of motion of the knee is evaluated under DC 5260 for flexion and DC 5261for extension. Under DC 5260, normal ranges of motion of the knee are to zero degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. 38 C.F.R. § 4.71a. See VAOPGCPREC 9-04 (interpreting that separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint). Separate disability ratings are possible for arthritis with limitation of motion under Diagnostic Codes 5003 (providing rating for arthritis) and instability of a knee under Diagnostic Code 5257. VAOPGCPREC 23-97. When X-ray findings of arthritis are present and a knee disability is rated under Diagnostic Code 5257, a separate compensable rating under Diagnostic Code 5003 is warranted if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98. VA's General Counsel has interpreted that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003/5010 and 5257, respectively, and that a separate rating could also be provided for compensable limitation of knee extension and compensable flexion of the same knee joint. VAOPGCPREC 9-2004. The Veteran contends that his service-connected left knee osteroarthritis warrants a greater than ten percent disabling rating. On VA examination in July 2010, the Veteran complained of a 15 year history of left knee pain which was aggravated by sitting and walking. He also endorsed occasional knee swelling, locking and buckling. The Veteran denied additional limitation following repetitive use during flare-ups. Range of motion was from zero to 115 degrees, with pain at the ends of motion. Pain increased following repetitive range of motion; however, the range remained the same. McMurry test was positive, but anterior drawer and Lachman tests were negative. X-ray imaging of the knee revealed mild degenerative osteoarthritic changes. A September 2010 letter from a friend of the Veteran reported that the Veteran's knee had "lost most of its function" with regard to activities of daily living. The Board finds that a rating of greater than 10 percent is not warranted for any period on appeal. The Veteran has flexion to greater than 30 degrees and extension to less than 15 degrees. Accordingly his limitation of motion is not compensable under either DC 5260 or 5261. In so finding, the Board has considered the Veteran's range of motion in light of such factors as weakness, fatigability, incoordination, and pain on movement, and notes that there is no evidence of additional limitation as a result of the foregoing factors. Given that the Veteran's limitation of motion is noncompensable, DC 5003 directs that the Veteran be granted a 10 percent rating for limitation of motion objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. A rating of greater than 10 percent, however, is not available under DC 5003 when limitation of motion is not compensable. The Board has also considered whether a higher rating may be warranted under a different Diagnostic Code, but finds that none is. The evidence shows that the Veteran does not have ankylosis, and there is no lay or medical evidence of subluxation or lateral instability, or impairment of the tibia and fibula. Accordingly, DC 5256 (ankylosis), DC 5257 (recurrent subluxation or lateral instability), and DC 5256 (impairment of the tibia and fibula) are not for application. With regard to DC 5259 and DC 5263, under these Codes schedular ratings of greater than 10 percent are not available as 10 percent is the maximum rating under these Codes. DC 5258 allows for a 20 percent rating where dislocated semilunar cartilage results in frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a. While the Veteran endorsed episodes of locking at the July 2010 VA examination, the examiner affirmatively stated that there was no effusion; thus a 20 percent rating under DC 5258 is not warranted. Based on the foregoing, the Board concludes that the Veteran's left knee osteoarthritis has been 10 percent disabling throughout the entire rating period on appeal. As the preponderance of the evidence is against the claim, there is no doubt to be resolved. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration The Board has also considered whether referral for a rating based on extraschedular considerations is warranted. An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is, thus, found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedular is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the veteran's disability picture requires the assignment of an extraschedular rating. Here, comparing the manifestations of the Veteran's service-connected left knee osteoarthritis and the associated impairment against the rating schedule, the Board finds that the degree of disability shown throughout the appeal period under consideration is wholly encompassed by the schedular criteria under 38 C.F.R. § 4.71a, DC 5010. Those criteria encompass the Veteran's symptom, namely painful motion without compensable limitation of motion under Diagnostic Codes 5259 through 5263. The functional effects of pain and stiffness are made part of the schedular rating criteria through application of principles at 38 C.F.R. §§ 4.40, 4.45, 4.59, and DeLuca, 8 Vet. App. at 205 -06. Accordingly, referral of the claim for extraschedular consideration under 38 C.F.R. § 3.321is not warranted. Earlier Effective Date for 10 Percent Rating for Left Knee Osteoarthritis The Veteran has contended that he is entitled to an earlier effective date for the 10 percent rating for the service-connected left knee osteoarthritis. The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Except as otherwise provided, the effective date of an evaluation and an award of compensation based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. If an increase in disability precedes the claim by a year or less, the proper effective date is the date that the increase is shown to have occurred, or be factually ascertainable. 38 C.F.R. § 3.400(o)(2). The "date of the claim" means the date of the application based upon which benefits are awarded, not the original claim for service connection. See Sears v. Principi, 16 Vet. App. 244, 246-47 (2002), aff'd, 349 F.3d 1326 (Fed. Cir. 2003). In this context, it should be noted that the provisions of 38 U.S.C.A. § 5110 also refer to the date an application is received. While the term "application" is not defined in the statute, the regulations use the terms "claim" and "application" interchangeably, and they are defined broadly to include "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. §§ 3.1(p), 3.155 (2012); Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). In addition, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a). There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). Following notification of an initial review and adverse determination by the RO, a notice of disagreement must be filed within one year from the date of notification thereof; otherwise, the determination becomes final. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). When there is a final denial of a claim, and new and material evidence is subsequently received, the effective date of the award of compensation is date of receipt of the new claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(1)(ii) (2012). Finally, where evidence requested in connection with a claim for benefits (to include identifying information and releases for private treatment records) is not received within a year of the request, the claim is to be considered abandoned. 38 C.F.R. § 3.158(a) (2012). The Veteran separated from service on June 9, 1960 and on June 22, 1960 VA received his original claim of service connection. In an October 1960 rating decision the Veteran was granted service connection for residuals of a left knee disability and granted a 10 percent evaluation effective June 10, 1960, the day after his separation from service. The Veteran underwent left knee surgery and subsequent March and November 1961 rating decisions granted a temporary total evaluation relating to his surgery and convalescence, followed by a noncompensable rating effective January 29, 1962. The Veteran was notified of the reduction to a noncompensable rating evaluation in a letter of November 1961. He did not file an appeal and thus the decision became final. In February 1977, VA received a claim for an increased rating from the Veteran. VA responded in March 1977 with a letter notifying the Veteran that in order to consider his claim for an increased rating, evidence was needed that documented his current level of disability. The Veteran was also informed that he could request that VA consider his claim based on VA records. The Veteran did no respond to VA's request for evidence and thus his 1977 claim is considered abandoned. 38 C.F.R. § 3.158(a). VA next received a claim for an increased rating on May 21, 2010. Prior to VA's receipt of the Veteran's 2010 claim, all prior rating decisions had become final, and no unadjudicated claims, formal or informal, remained pending. Once a decision as to an effective date becomes final, the only route to an earlier effective date is through a successful showing of clear and unmistakable error (CUE) in the decision that established the disputed effective date. Rudd v. Nicholson, 20 Vet. App. 296 (2006). Here, the Veteran has not identified with any specificity the type of error in a prior rating decision that would be considered CUE if found. His allegations amount to noting that pain in his left knee has been unremitting since 1960 and thus he should be entitled to a compensable rating effective date in 1960. This on its face is not CUE. See Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993), aff'd on reconsideration, 6 Vet. App. 162, 163 (1994). As there is no legal basis for assignment of a compensable rating effective any earlier than May 21, 2010. In reaching this conclusion, the Board has considered whether an increase in the Veteran's left knee disability was factually ascertainable up to one year prior to his claim. Here, however, there is literally no evidence, to include lay statements endorsing a worsening of symptomatology, within one year prior to the receipt of the Veteran's claim in May 2010. The Board finds that an earlier effective date for the grant of a compensable rating for service-connected left knee osteoarthritis is not warranted. Where, as here, the law, and not the evidence, is dispositive, the appeal must be terminated or denied as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994), 6 Vet. App. at 430. ORDER A rating in excess of 10 percent for left knee osteoarthritis is denied. An effective date earlier than May 21, 2010 for a 10 percent evaluation of service connected left knee osteoarthritis is denied. REMAND In a May 2011 statement to VA, the Veteran indicated that, due to his service-connected left leg disability, he was "unable to continue with [his] employment." In effect, the Veteran has raised the issue of entitlement to TDIU. While the issue of TDIU entitlement has not been adjudicated by the RO, it is on appeal as a component of the increased rating claim for left knee osteoarthritis. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (where there is evidence of unemployability raised by the record during a rating appeal period, the TDIU is an element of an initial rating or increased rating). Accordingly, the case is REMANDED for the following action: The RO/AMC should adjudicate the claim for TDIU, to include satisfying all notice and development requirements. If the determination is unfavorable to the Veteran, he and his representative should be provided with a statement of the case (SOC) that addresses all relevant actions taken on the claim. The Veteran is advised that he must submit a substantive appeal in response to the SOC for the appeal to progress. If a substantive appeal is received, the matter should be returned to the Board for further review. 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 the claim that is 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). ______________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs