Citation Nr: 1326558 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 09-24 504 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to a rating in excess of 10 percent for left knee osteoarthritis. 2. Entitlement to a rating in excess of 10 percent for impairment of the left tibia and fibula, medial meniscal tear with instability and torn medial collateral and anterior cruciate ligament. 3. Entitlement to a total rating based upon individual unemployability (TDIU) due to a service-connected left knee disorder. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from June 1954 to January 1958, from June 1982 to July 1982 and from May 1984 to November 1984. This appeal to the Board of Veterans' Appeals (Board) arose from an April 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which denied the Veteran's claims for an increased rating for impairment of the left tibia and fibula as well as left knee osteoarthritis. A review of the Virtual VA claims processing system does not reveal any additional documents pertinent to the claims on appeal. The Veteran testified before the undersigned at a November 2012 hearing at the Board. A hearing transcript has been associated with the claims file. The record was held open for 60 days following this hearing to allow the Veteran the opportunity to submit additional evidence. The Board notes that the Veteran had requested a copy of transcript of his November 2012 hearing in March 2013. Such a copy was provided to the Veteran in May 2013 and he was thereafter provided an additional 30 days to correct the transcript. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU is part of an initial rating claim when such claim is raised by the record. In this regard, the Veteran has alleged that he was removed from his prior employment due to his service-connected left knee disability. Therefore, the Board finds that the evidence raises a claim for a TDIU and, as such, it has been included on the title page of this decision. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. Since the January 22, 2008 claim for an increased rating, the Veteran's left knee osteoarthritis (with X-ray evidence of arthritis in one joint or joint group) has resulted in reduced range of motion that included extension to no less than zero degrees and flexion to no less than 100 degrees, with subjective complaints of pain. 2. Since the January 22, 2008 claim for an increased rating, the Veteran's left tibia and fibula impairment has manifested medial and lateral instability, effusion in the joint and a torn medial meniscus, but has not been productive of locking, ankylosis, subluxation, genu recurvatum, or nonunion with loose motion of the tibia and fibula. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for left knee osteoarthritis are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.27, 4.40, 4.45, 4.71a, 4.124a, 5003, 5260, 5261 (2012). 2. The criteria for a rating of 30 percent for impairment of the left tibia and fibula, medial meniscal tear with instability and torn medial collateral and anterior cruciate ligament are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.27, 4.40, 4.45, 4.71a, 4.124a, 5256, 5257, 5258, 5259, 5262, 5263 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. A February 2008 pre-rating letter provided pertinent notice to the Veteran in connection with his claims for an increased rating for impairment of the tibia and fibula as well as for left knee osteoarthritis. The letter indicated what information and evidence was needed to substantiate each claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence would be obtained by VA. The letter also provided him with general information pertaining to VA's assignment of disability ratings and effective dates in accordance with Dingess/Hartman. The February 2008 pre-rating letter notified the Veteran that medical or lay evidence could be submitted to substantiate his claims for an increased rating and provided specific examples. This letter stated that such evidence should discuss his disability symptoms from people who have witnessed how they affected him as well as notifying him that he may submit statements from his employers. The remaining elements of notice were provided in the July 2008 letter. The timing deficiency with regard to this July 2008 letter was cured by the readjudication of the claims in the May 2009 statement of the case (SOC). Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided. Pertinent medical evidence associated with the claims file consists of the report of the VA examination, as well as the Veteran's VA outpatient treatment records and various private treatment records. During the November 2012 hearing, the Veteran testified that he was not receiving any current treatment for his knee disability. The Board also finds that no additional RO action to further develop the record in connection with any claim on appeal, prior to appellate consideration, is required. Additionally, in November 2012, the Veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned. In Bryant v. Shinseki, the Court held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the November 2012 hearing, the undersigned enumerated the issues on appeal. Also, information was solicited regarding the nature of the Veteran's left knee disabilities, including his contention that his torn meniscus was not properly compensated. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. Id. at 497. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record. The Veteran was afforded a VA examination in conjunction with the claims decided herein, including a VA examination conducted in December 2008, to determine the severity of his knee disability. The record further reflects that a VA examination was scheduled in March 2011, but the Veteran did not report for the examination. In a March 2011 supplemental SOC (SSOC), the RO advised the Veteran that he had failed to report for a scheduled VA examination and that no request to reschedule the examination had been received. There is no indication that the Veteran has requested that this examination be rescheduled nor has he offered an explanation for his failure to appear. As such, no further RO action in this regard is warranted. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate these claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with any claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Higher Ratings The Veteran contends that higher ratings are warranted for left knee disabilities due to a torn meniscus. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Except as otherwise provided in the Rating Schedule, all disabilities, including those arising from a single disease entity, are to be rated separately, unless the conditions constitute the same disability or the same manifestation. 38 C.F.R. §§ 4.14, 4.25; Esteban v. Brown, 6 Vet. App. 259 (1994). Where there is a question as to which of two evaluations shall be applied, the higher rating 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. Although the regulations do not give past medical reports precedence over current findings, the Board is to consider a veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 35 (1999). A veteran 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). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. At the outset, the Board notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which functional loss due to limited or excess movement, 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; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Traumatic arthritis is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved. If the limitation of motion is noncompensable, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Historically, the Veteran's left knee osteoarthritis is rated under Diagnostic Code 5003 for traumatic arthritis while his impairment of the left tibia and fibula is rated under Diagnostic Codes 5262-5257 for impairment of the tibia and fibula with recurrent subluxation or lateral instability. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Standard range of knee motion is from zero degrees (on extension) to 140 degrees (on flexion). See 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5260, a 10 percent is warranted where flexion was limited to 45 degrees. A rating of 20 percent is warranted where flexion was limited to 30 degrees and a rating of 30 percent is warranted were flexion was limited to 15 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, a 10 percent rating is warranted where extension was limited to 10 degrees and a 20 percent rating is warranted where extension was limited to 15 degrees. A rating of 30 percent is warranted where extension was limited to 20 degrees while a 40 percent rating is warranted where extension was limited to 30 degrees. A 50 percent is warranted where extension was limited to 45 degrees. 38 C.F.R. § 4.71a. The VA General Counsel has held that separate ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. See VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). Malunion of the tibia and fibula with a slight knee disability warrants a 10 percent rating, such malunion with a moderate knee disability warrants a 20 percent rating and such malunion with a marked knee disability warrants a 30 percent rating. Nonunion of the tibia and fibula with loose motion that requires a brace warrants a maximum 40 percent rating. 38 C.F.R. § 4.71a, 5262. The terms "slight," "moderate," and "marked" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just," and all evidence must be evaluated in deciding rating claims. 38 C.F.R. § 4.6. Knee impairment with recurrent subluxation (partial dislocation) or lateral instability warrants a 20 percent rating if it is moderate or a maximum 30 percent rating if it is severe. 38 C.F.R. § 4.71a, 5257. VA General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under 5003 and 5257. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997). The General Counsel subsequently clarified that for a knee disability rated under 5257 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under 5260 or 5261 need not be compensable but must at least meet the criteria for a noncompensable rating. A separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. VAOPGCPREC 9-98 (1998); 63 Fed. Reg. 56,704 (1998). Knee ankylosis at favorable degree in full extension or in slight flexion between zero degrees and 10 degrees warrants a 30 percent rating. Knee ankylosis in flexion between 10 and 20 degrees warrants a 40 percent rating while such ankylosis in flexion between 20 and 45 degrees warrants a 50 percent rating. Extremely unfavorable knee ankylosis in flexion at an angle of 45 degrees or more warrants a 60 percent rating. 38 C.F.R. § 4.71a, 5256. Semilunar, dislocated cartilage with frequent episodes of "locking," pain and effusion into the joint warrants a maximum 20 percent rating. 38 C.F.R. § 4.71a, 5258. The "amputation rule" provides that the combined rating for disabilities of an extremity cannot exceed the rating for amputation at the elective level. 38 C.F.R. § 4.68. A 60 percent rating is assigned if there was an amputation of the thigh, above the knee, at the middle or lower third. 38 C.F.R. § 4.71a, 5162. Amputation of a leg with defective stump and thigh amputation recommended or amputation not improvable by prosthesis controlled by natural knee action may also be assigned a 60 percent rating. 38 C.F.R. § 4.71a, 5163, 5164. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. A June 2007 private treatment note indicated that a recent arthroscopy found a medial meniscus tear, and some arthritis in the medial and the patellofemoral joints as well as some fraying of the lateral meniscus. Range of motion was noted to be full, without specific measurements provided, and there was no calf tenderness, erythema or effusion found on examination. A December 2008 VA orthopedic examination reflected the Veteran's reports of knee pain, which he rated as "7/10," stiffness and instability requiring the use of a brace. Weekly flare-ups in which pain was rated as "9/10" and lasted several hours were also reported. Such flare-ups were aggravated by cloudy, rainy days as well as by standing for more than 20 minutes and were alleviated by medications. Physical examination revealed tenderness at the left medial joint line and crepitance without swelling or edema. Flexion was from zero degrees to 100 degrees with pain beginning at 60 degrees and extension was to zero degrees with pain. Repetitive motion testing revealed pain without weakness or fatigue with no functional loss due to pain. Medial and lateral instability was found as McMurray's test was positive. Varus/valgus stress was found to be normal and there was no anterior and posterior cruciate ligaments instability. A May 2006 left knee Magnetic Resonance Imaging (MRI) scan had revealed a torn meniscus, patellar tendonitis and joint effusion. A September 2009 private treatment note indicated that there was some tenderness over the medial joint line of the Veteran's left knee without lateral joint line tenderness or instability. Range of motion was noted to be from zero degrees to 130 degrees. A February 2011 private treatment note showed that the Veteran was seen for a follow-up on left knee pain. He had large effusion in his knee and it was aspirated. He was planned for hyaluronic acid injection series once he got this condition under control. He now presented with a left knee that was less tender and had less effusion and an injection gave him "near 100% relief" of his reported symptoms. During a November 2012 hearing, the Veteran testified that his knee pain prevented him from participating in activities that he had previously enjoyed such as golfing and walking with his wife. He had daily pain and used cold pads to treat his knee. He bought a leg brace for his knee and walked with a cane on occasion. As regards to limitation of motion under Diagnostic Codes 5260 and/or 5261, the evidence shows that the Veteran's service-connected left knee disability has been manifested by extension to zero degrees and flexion to 100 degrees, at worst. While these findings do not support even the minimum, compensable rating under either diagnostic code, as noted below, given the Veteran's complaints of pain and painful motion, a 10 percent rating for limited painful motion under Diagnostic Code 5003-for one joint-is appropriate. However, no higher rating is assignable. VA may consider any demonstrated functional loss attributable to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, in conjunction with criteria under the rating formula. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-7; Johnson, 9 Vet. App. 7. In this regard, the Board recognizes that during his December 2008 VA examination, the Veteran reported knee pain and objective evidence of pain was found on range of motion testing but without additional limitation of motion. Nonetheless, given the extent of knee motion demonstrated by the Veteran at his VA examination, the overall level of disability demonstrated by the Veteran is not commensurate to a loss of flexion to 30 degrees or less or a loss of extension to 15 degrees or more, even after taking reported pain into consideration. Moreover, to the extent that pain was reported by the Veteran after repetitive motion at his VA examination, the VA examiner noted that the Veteran did not demonstrate any further loss of motion or function due to such symptoms. In Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011), the Court held that, although pain may cause a functional loss, pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system. Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance." Id. (quoting 38 C.F.R. § 4.40 (2012)). In view of the foregoing, even after taking the factors identified in DeLuca into consideration, the Board finds that a disability rating in excess of 10 percent cannot be granted for the knee on the basis of limited motion. Moreover, the post-service radiological studies, treatment notes and the VA examination report simply do not reflect objective findings of ankylosis in the knee, or any suggestion that the Veteran effectively experiences ankylosis of the knee. With regards to the Veteran's torn medial meniscus, the Veteran has reported knee pain and the objective evidence of record has documented intermittent large effusion in the knee for which the Veteran requires aspiration and injections. Neither the Veteran nor the clinical evidence has suggested that he experiences knee locking. In addition, the Veteran has generally reported knee instability in that his left knee gives way. The clinical evidence and the various lay statements demonstrate that the Veteran has used a knee brace. Objective testing conducted in the December 2008 VA examination found medial and lateral instability. With regards to malunion of the tibia and fibula, the Veteran has described various problems with the left knee, primarily ongoing daily pain. The objective evidence of record, as described above, indicates that the Veteran's left knee flexion is restricted, that he has intermittent or episodic medial and lateral instability, and that there is intermittent large effusion in the joint and a torn medial meniscus. The Veteran also experiences weekly flare-ups in which pain is rated as nine out of ten; the flare-ups last several hours. Thus, overall, the Board finds that the Veteran's symptoms most closely represent a marked knee disability and warrant a 30 percent rating under Diagnostic Code 5262. As the Veteran's meniscal disability is contemplated in the Board's decision to award a higher rating under the assigned Diagnostic Codes 5262-5257, a separate rating is not warranted under Diagnostic Code 5258. See 38 C.F.R. § 4.14 (2008) (providing that the evaluation of the same disability or the same manifestation under various diagnoses is to be avoided); Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (noting that the critical element in determining whether a separate disability rating may be assigned for manifestations of the same injury is whether there is overlapping or duplication of symptomatology between or among the disorders). Additionally, the Board has contemplated whether the Veteran's claims for an increased rating for impairment of the left tibia and fibula, medial meniscal tear with instability and torn medial collateral and anterior cruciate ligament and left knee osteoarthritis should be referred for extra-schedular consideration. An extra-schedular disability rating is warranted if 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 application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant'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, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected impairment of the left tibia and fibula, medial meniscal tear with instability and torn medial collateral and anterior cruciate ligament and osteoarthritis of the left knee with the established criteria found in the rating schedule. The Board finds that the Veteran's left knee symptomatology is fully addressed by the rating criteria under which such disability is rated. In this regard, all of the Veteran's left knee symptomatology is contemplated by the rating criteria. There are no additional symptoms of his instability, impaired meniscus, painful limitation of motion, and degenerative arthritis of the left knee that are not addressed by the rating schedule. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology of his service-connected disability. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Therefore, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Additionally, staged ratings for the Veteran's disability is not warranted as his symptomatology has remained stable throughout the appeal period. See Fenderson, Hart, supra (where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate). For the foregoing reasons, the Board finds that a rating of 30 percent for impairment of the left tibia and fibula, medial meniscal tear with instability and torn medial collateral and anterior cruciate ligament should be awarded and a rating in excess of 10 percent for left knee osteoarthritis should be denied. No other higher or separate ratings are warranted for these claims. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against other higher or separate ratings, that doctrine is not further applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER A 30 percent rating for impairment of the left tibia and fibula, medial meniscal tear with instability and torn medial collateral and anterior cruciate ligament is granted, subject to the legal authority governing the payment of VA compensation. A rating in excess of 10 percent for left knee osteoarthritis is denied. REMAND The Veteran contends that he is no longer able to work as a police officer due to his left knee disability and detailed his contentions in an August 2008 statement. The current record suggests that the Veteran remains unemployed. The Board recognizes that the Court of Appeals for Veterans Claims has clarified that a claim for a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities exists as part of a claim for an increase (whether in an original claim or as part of a claim for increased rating). Rice v. Shinseki, 22 Vet. App. 447 (2009). A TDIU claim is considered reasonably raised when a veteran submits medical evidence of a disability, makes a claim for the highest rating possible, and submits evidence of service-connected unemployability. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). The Board finds that a claim for TDIU has been raised by the Veteran. This issue should be considered by the AMC/RO in the first instance. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO/AMC shall provide the Veteran and his representative with a letter pertaining to his TDIU claim that includes an application for TDIU and complies with the notification requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The letter shall explain what information or evidence (medical or lay) is necessary to substantiate the TDIU element of the Veteran's claim. It shall indicate the information and evidence that is to be provided by the Veteran, including a formal application form and an employment information form, and what information VA will attempt to obtain on his behalf. It also shall include information concerning the assignment of disability ratings and effective dates. 2. Thereafter, the RO/AMC shall adjudicate the Veteran's claim for a TDIU including consideration of referral of the Veteran's claim to the Director of Compensation and Pension for assignment of TDIU on an extra-schedular basis after taking any additional development deemed necessary. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a Supplemental Statement of the Case and afforded a reasonable opportunity to respond. Thereafter, the case should be returned to the Board for the purpose of appellate disposition. 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). ______________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs