Citation Nr: 1327862 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 03-22 973 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to a rating in excess of 10 percent, prior to February 12, 2008, for residuals of a left knee injury. 2. Entitlement to an increased rating for residuals of a right knee injury, status post lateral meniscectomy, currently evaluated as 30 percent disabling. 3. Entitlement to an increased rating for right knee synovitis, status post arthroscopic surgeries, with arthritis, currently --evaluated as 10 percent disabling. 4. Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Attorney WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty with the Army from March 30, 1979, to July 13, 1979, and with the Army National Guard from March 8, 1980, to March 9, 1980. He also served with the Kansas Army National Guard on inactive duty training from June 5, 1982, to June 19, 1982. These matters come to the Board of Veterans' Appeals (Board) on appeal from an August 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. This case presents a complex procedural history. The Veteran initially filed a claim for entitlement to service connection for a left knee injury in October 1983; he was granted service connection for residuals of a left knee injury in a December 1983 rating decision and assigned a 10 percent initial evaluation effective from October 31, 1983, under Diagnostic Code 5257, utilized for rating recurrent subluxation or lateral instability. In September 1990, the Veteran filed a claim for an increased rating for his service-connected residuals of a left knee injury, and sought service connection including for arthritis of the left knee, including as secondary to the service-connected residuals of a left knee injury. An unappealed November 1990 rating decision denied an increased rating for the service-connected residuals of a left knee injury rated under Diagnostic Code 5257, and denied service connection including for arthritis of the left knee, based on a finding of no demonstration of arthritis. The Veteran again filed an increased rating claim in March 1993, which was also denied in an unappealed April 1993 rating decision. The November 1990 and April 1993 rating decisions are final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. On September 27, 2000, the Veteran underwent VA magnetic resonance imaging (MRI) of the left knee, which revealed hypertrophic spurring in the articular margins interpreted as consistent with degenerative arthritis. On November 29, 2001, the Veteran filed his current claim including for an increased rating for his service-connected left knee disability. The August 2002 rating decision on appeal confirmed and continued the Veteran's 10 percent rating for his left knee disability pursuant to Diagnostic Code 5257; however, the rating decision incorrectly noted the effective date of the Veteran's left knee instability as March 1, 1993, instead of the correct October 31, 1983 date. The incorrect March 1, 1993, effective date was then erroneously used in subsequent documents generated by the RO. In his April 2005 Informal Brief, the Veteran's representative noted that previous examiners had indicated the presence of arthritis in the Veteran's left knee, but did not opine as to whether this left knee arthritis was an extension of, or otherwise related to, his service-connected left knee disability. As such, the representative argued that a remand was required in order to answer this question. Curiously, in an August 2006 rating decision generated for the stated purpose of better clarifying the Veteran's right knee disabilities to avoid violation of 38 C.F.R. 4.14, the prohibition against pyramiding, the RO inexplicably changed the diagnostic code used to rate the Veteran's service-connected left knee disability from Diagnostic Code 5257, utilized for rating recurrent subluxation or lateral instability, to Diagnostic Codes 5261-5260, utilized for rating limitation of extension and flexion. The Board emphasizes that the RO did not officially sever the 10 percent rating under Diagnostic Code 5257 and grant a new 10 percent rating under Diagnostic Codes 5261-5260 at this time; rather, it merely switched one diagnostic code for another. Although the RO provided no explanation for this change of diagnostic codes, and while the Board acknowledges that this change could very well have been a clerical error similar to the error in the August 2002 rating decision that listed an incorrect effective date, this change suggested that limitation of motion caused by left knee arthritis was now rated as 10 percent disabling since October 31, 1983. The Veteran was afforded a VA joints examination in February 2008, at which time the examiner opined that the Veteran's left knee arthritis was causally related to his service-connected left knee disability based on the radiological studies and meniscal diagnosis of the left knee. Based on this opinion, in a March 2008 rating decision, the RO determined that the evaluation of the Veteran's service-connected residuals of left knee injury, which were rated as 10 percent disabling, would now include arthritis. However, the RO failed to assign an effective date for this change, let alone assign a separate evaluation for the left knee arthritis. In effect, the RO merely altered the naming of the Veteran's service-connected left knee disability. The Veteran's left knee disability was still rated under Diagnostic Codes 5261-5260. In September 2008, the Board continued the Veteran's left knee arthritis rating at 10 percent, pursuant to Diagnostic Codes 5260 and 5261. The Board denied a separate rating pursuant to Diagnostic Code 5257. In a June 2011 panel decision, the Court reversed the Board's determination that the Veteran was entitled only to a 10 percent disability rating for residuals of a left knee injury with arthritis under Diagnostic Codes 5260 and 5261, and instructed the Board to reinstate the 10 percent disability rating for residuals of a left knee injury that was protected under Diagnostic Code 5257 and to assign a separate 10 percent disability rating for arthritis of the left knee under Diagnostic Codes 5003 and 5010, as well as remitting to the Veteran the retroactive disability compensation. The Court held that the 10 percent disability evaluation under Diagnostic Code 5257 that had been continuously in effect for more than 20 years was considered to have been reduced/terminated when the March 2008 rating decision assigned a new Diagnostic Code to the service-connected residuals of a left knee injury. The Board emphasizes that, although the Court's June 2011 panel decision indicated it was the March 2008 rating decision in which the RO began rating the Veteran's left knee disability under Diagnostic Codes 5260 and 5261 rather than Diagnostic Code 5257, a closer inspection of the record reveals that the RO actually began rating the Veteran's left knee disability under Diagnostic Codes 5260 and 5261 in the August 2006 decision discussed above. The issues were again before the Board in December 2011, at which time the Board found that the criteria for restoration of the 10 percent separate disability rating pursuant to Diagnostic Code 5257 for left knee recurrent subluxation or lateral instability had been met, effective from February 12, 2008; and also that the Veteran was entitled to a separate 10 percent rating, and no higher, for arthritis of the left knee, residual of a left knee injury, pursuant to Diagnostic Codes 5003 and 5010, effective from February 12, 2008. In addition, the Board remanded issues of entitlement to service connection for a back disability and a hip disability, as well as entitlement to increased ratings for the Veteran's right knee disabilities and to a TDIU. However, the Veteran again appealed to the Court alleging that the Board erred by failing to provide an adequate statement of reasons or bases for its assignment of February 12, 2008, as the effective date for its grant of the separate 10 percent rating for left knee arthritis. An October 2012 Joint Motion for Partial Remand (Joint Motion) was issued directing the Board to conduct a critical examination of its justification for this decision. In November 2012, the Court remanded the case for action consistent with the terms of the Joint Motion. Although the Veteran's representative has framed the issue as entitlement to an earlier effective date for the 10 percent evaluation for left knee arthritis, the Board finds that the issue is more appropriately framed under a staged rating analysis, as set forth above. This is both because the issue comes to the Board from an increased rating claim, rather than service connection claim, and because analysis of the issue as a staged rating will potentially be more beneficial to the Veteran in terms obtaining the highest possible rating for the period on appeal. The Board also notes that, by rating decisions in January 2013 and May 2013, the RO granted service connection for degenerative joint disease of each hip, and service connection for lumbar strain with degenerative arthritis. As these are considered full grants with respect to the issues of entitlement to service connection for left and right hip disabilities, and a back disability, addressed in the Board's previous remand, these issues are no longer before the Board. The issues of entitlement to an increased rating for residuals of a right knee injury, status post lateral meniscectomy; an increased rating for right knee synovitis, status post arthroscopic surgeries, with arthritis; and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT From September 27, 2000 through February 11, 2008, the Veteran's left knee arthritis was established by X-ray findings, with a complaint of pain productive of noncompensable limitation of motion of no worse than from zero degrees extension to 128 degrees of flexion. CONCLUSION OF LAW From September 27, 2000, through February 11, 2008, the criteria for a separate disability rating of 10 percent for left knee arthritis have been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, Diagnostic Codes 5003, 5010, 5257 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In the present case, VA issued VCAA notice letters dated in August 2003 and October 2005 from the agency of original jurisdiction (AOJ) to the appellant. These letters informed the appellant of what evidence was required to substantiate his claim for an increased rating for the left knee disability and informed him of his and VA's respective duties for obtaining evidence. The VCAA notice letters failed to discuss the law pertaining to the assignment of a disability rating and an effective date in compliance with Dingess/Hartman. The Veteran received belated Dingess notice in June 2009. The Board determines that no prejudice resulted in this belated notice, as the claim was readjudicated in a November 2010 rating decision and appeared before the Court in 2011 before it was remanded back to the Board. VA has a duty to assist the Veteran in the development of the claim. This duty includes assistance in the procurement of service treatment records, pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA has obtained the Veteran's service treatment records, VA treatment records and afforded the Veteran several VA examinations. The VA examinations are adequate to evaluate the Veteran's service-connected left knee disability for the rating period at issue. The examiners considered the Veteran's subjective complaints, examined him and set forth pertinent clinical findings. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on his claim at this time. In view of the forgoing, the Board finds that VA has substantially satisfied its duties to notify and assist under the governing law and regulation. With respect to the Veteran's claim, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Disability ratings are based on average impairment in earning capacity resulting from a particular disability, and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various 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. Thus, the Board must consider whether the Veteran is entitled to staged ratings at any time during the appeal period. Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. A formal claim for an increased rating claim for the service-connected left knee disability was received by VA on November 29, 2001. However, the Board finds that a VA MRI report dated September 27, 2000 showing hypertrophic spurring in the articular margins consistent with degenerative arthritis of the left knee is sufficient to constitute an informal claim for increased disability under 38 C.F.R. § 3.157(b)(1) and Massie v. Shinseki, No. 2012-7087 (Fed. Cir. July 29, 2013). The identification of findings consistent with degenerative arthritis of the left knee, which had not been previously shown, suggested a worsening of the service-connected left knee disability. Pursuant to 38 C.F.R. § 3.157(b)(1), the date of the VA MRI will be accepted as the date of receipt of a claim. As such, the rating period on appeal is from September 28, 1999, one year prior to receipt of the informal increased evaluation claim accepted as received on September 27, 2000. 38 C.F.R. § 3.400 (2012). During the period on appeal, the Veteran's service-connected residuals of a left knee injury were evaluated under Diagnostic Code 5257 for recurrent subluxation or instability. See 38 C.F.R. § 4.71a. Slight recurrent subluxation or instability of the knee is rated 10 percent, moderate recurrent subluxation or instability of the knee is rated 20 percent, and severe recurrent subluxation or instability of the knee is rated 30 percent. Diagnostic Code 5257. Diagnostic Code 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (zero percent) under the appropriate diagnostic codes, Diagnostic Code 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. (The knee is considered a major joint. 38 C.F.R. § 4.45) Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, Diagnostic Code 5003 provides a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. Although these disabilities are to be rated as degenerative arthritis (Diagnostic Code 5003), Note (2) to Diagnostic Code 5003 provides that the 20 percent and 10 percent ratings based on X-ray findings with no limitation of motion of the joint or joints will not be utilized in rating conditions such as that rated under Diagnostic Code 5019. 38 C.F.R. § 4.71a. Under the provisions of Diagnostic Code 5019, bursitis (or analogous disability) is rated on the limitation of motion of the affected parts, as degenerative arthritis. See 38 C.F.R. § 4.71a, Diagnostic Code 5019. The standard ranges of motion of the knee are extension to zero degrees and 140 degrees of flexion. 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5260, where flexion of the leg is limited to 45 degrees a 10 percent rating is warranted. Flexion of the leg limited to 30 degrees warrants a 20 percent rating. Flexion of the leg limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, where extension of the leg is limited to 10 degrees a 10 percent rating is warranted. Where extension of the leg is limited to 15 degrees a 20 percent rating is warranted. Limitation of extension of the leg to 20 degrees warrants a 30 percent rating. Limitation of extension of the leg to 30 degrees warrants a 40 percent rating, and limitation of extension of the leg to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45 ). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Ankylosis, i.e., the fixation of the left knee is neither alleged, nor shown; consequently, 38 C.F.R. § 4.71a, Diagnostic Code 5256 does not apply. As X-ray findings of record do not show evidence of dislocated semilunar cartilage or impairment of either the right tibia or fibula, a higher rating under Diagnostic Code 5258 or Diagnostic Code 5262 cannot be awarded. Although there was evidence of a torn posterior horn of the medial meniscus, Diagnostic Code 5258 is not applicable as the Veteran is not demonstrated to have dislocated semilunar cartilage, with frequent episodes of "locking," pain, and effusion into the joint. Likewise, 38 C.F.R. § 4.71a, Diagnostic Code 5262, is not for application in the absence of service-connected tibia and fibula impairment. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. Id.; Esteban v. Brown, 6 Vet. App. 259 (1994). In VAOPGCPREC 23-97, 62 Fed. Reg. 63604 (1997), VA's General Counsel determined that, when a claimant has arthritis and instability of the knee, multiple ratings may be assigned under Diagnostic Codes 5003 and 5257. Also, separate ratings may be assigned under Diagnostic Code 5260 and Diagnostic Code 5261, if compensable limitation of leg flexion and extension are demonstrated. Moreover, in VAOPGCPREC 9-98, 63 Fed. Reg. 56704 (1998), it was found that, even if the veteran did not have limitation of motion of the knee meeting the criteria for a noncompensable evaluation under Diagnostic Codes 5260 or 5261, a separate evaluation could be assigned if there was evidence of full range of motion "inhibited by pain." Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr, 21 Vet. App. at 303 (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Pertinent to a claim for an increased rating, lay testimony is competent when it describes symptoms, which supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (holding that, in general, for the need for a VA examination to arise, a claimant would only need submit his competent testimony that symptoms, reasonably construed as related to the service-connected disability, have increased in severity since the last evaluation.). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995); see Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). In this case, the Board finds no reason to doubt the competency and credibility of the medical evidence collected in the course of the VA examinations, discussed below, and provides it significant weight in determining the Veteran's level of disability. Degenerative arthritis of the left knee was not clinically demonstrated at any time during the rating period on appeal from September 28, 1999 through September 26, 2000. As noted above, a September 27, 2000, report of an MRI of the left knee revealed hypertrophic spurring in the articular margins interpreted as consistent with degenerative arthritis. In addition, VA treatment records dated in November 2000 indicated that the Veteran's knee joints exhibited "some degenerative changes." As such, the Board finds that the Veteran is entitled to a disability rating of 10 percent for his left knee arthritis effective from September 27, 2000. This 10 percent rating is granted pursuant to Diagnostic Code 5003, which permits a 10 percent evaluation for degenerative arthritis established by X-ray findings where limitation of motion of the specific joint involved is noncompensable, and the joint affected by limitation of motion is a major joint. As noted above, pursuant to 38 C.F.R. § 4.45(f), for the purpose of rating disability from arthritis, the knee is considered a major joint. The clinical evidence of record throughout the rating period on appeal from September 27, 2000 demonstrates that, at worst, left knee range of motion was from zero to 128 degrees. The arthritis did not result in incapacitating episodes, and there was no evidence of additional functional loss due to pain, weakness, excess fatigability, or incoordination. As such, there has been no demonstration of compensable limitation of left leg extension or compensable limitation of left leg flexion. The Board finds that the Veteran is not entitled to a rating in excess of 10 percent for left knee arthritis during the period on appeal from September 27, 2000. Although the Veteran was afforded a VA joints examination in May 2001, this pertained only to his right knee. The Veteran was afforded a VA joints examination in March 2002, at which time he was diagnosed as having degenerative changes of the knees, bilaterally. At that time, there were no constitutional signs of inflammatory arthritis. The left knee was indicated to have a full range of motion from zero to 140 degrees, without pain. The Veteran was afforded a VA joints examination in January 2003, at which time he complained of bilateral knee pain. There was no evidence of ankylosis or constitutional signs of inflammatory arthritis. Active range of motion of the left knee was from zero to 128 degrees, while passive range of motion of the left knee was from zero to 130 degrees. There was no medial or lateral laxity, and the Lachman's and McMurray's tests were both negative, bilaterally. There were no varus or valgus abnormalities. The Veteran was afforded a VA joints examination in November 2003, at which time the examiner opined that the Veteran had no problem at this point in time with his left knee. X-rays revealed mild degenerative changes of the left knee with slight narrowing of the joint space medially. There was no significant abnormality otherwise, and no evidence of fracture, dislocation, or other acute osseous abnormality. VA treatment records reveal that "knee pain," "knee injury," "internal derangement," and "other acquired deformities of the knee" are among the disabilities listed on the Veteran's Problem List. The Veteran underwent an MRI of the left knee in December 2005. However, in February 2006, a VA physician opined that the MRI revealed a torn posterior horn of the medial meniscus as well as minimal changes of chondromalacia of the patella. The physician concluded that the Veteran had an abnormal MRI with minimal complaint and minimal physical findings of the left knee. The physician further opined that the Veteran did not require a left knee arthroscopy. Based on this evidence, the Board does not find that a rating in excess of 10 percent is warranted for arthritis of the left knee for the period from September 27, 2000, to February 11, 2008. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2012), but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 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 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 schedule 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, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected left knee instability disability is not adequate. The established rating criteria reasonably describe the Veteran's disability level and symptomatology. Referral for extraschedular consideration is not warranted. See VAOPGCPREC 6-96. Further inquiry into extraschedular consideration is moot. See Thun, supra. ORDER An evaluation of 10 percent, but no more, for left knee arthritis, from September 27, 2000, to February 11, 2008, is granted. REMAND The Veteran also seeks entitlement to an increased rating for residuals of a right knee injury, status post lateral meniscectomy; an increased rating for right knee synovitis, status post arthroscopic surgeries, with arthritis; and entitlement to a TDIU. Specifically, in its December 2011 remand instructions, the Board directed the RO, in part, to adjudicate the issues of entitlement to an increased rating for residuals of a right knee injury, status post lateral meniscectomy, currently evaluated as 30 percent disabling, and entitlement to an increased rating for right knee synovitis, status post arthroscopic surgeries, with arthritis, evaluated as 10 percent disabling, as those issues are deemed to be inextricably intertwined with the TDIU issue on appeal. Following that, the RO was directed to afford the Veteran a VA examination in order to obtain an opinion in connection with his TDIU claim, and then to adjudicate the TDIU claim. A TDIU claim was raised in conjunction with the left knee issue on appeal by the Veteran's representative in a written communication dated April 26, 2011. Curiously, in his June 2013 Board submission, the Veteran's representative indicated that the RO had since denied the claims for increased ratings for right knee meniscectomy and right knee synovitis, and additionally argued that a separate 10 percent rating for right knee arthritis should be granted. However, a review of both the Veteran's physical claims file as well as the Virtual VA database does not reveal a supplemental statement of the case or any other adjudication of these issues by the RO since the Board's December 2011 remand. Similarly, as mentioned above, with respect to the issue of a TDIU, the Board's December 2011 remand instructions directed the RO to afford the Veteran a VA examination in order to obtain an opinion in connection with his TDIU claim, and to thereafter adjudicate the TDIU claim. In his June 2013 Board submission, the Veteran's representative made reference to a VA examination conducted on February 10, 2012, purportedly offering an opinion as to his employability. However, a review of both the Veteran's physical claims file as well as the Virtual VA database does not reveal a copy of the referenced February 10, 2012, VA examination report, nor a rating decision readjudicating the issue. Although VA outpatient treatment records dated as recently as March 2013 have been uploaded to the Virtual VA database, these records do not seem to include the referenced February 10, 2012, VA examination report. While it is possible that these documents were placed within a temporary file while the Veteran's pursued his October 2012 Joint Motion, no such temporary file is currently associated with the physical claim file, and the Veterans Appeals Control & Locator System (VACOLS) does not indicate that such a temporary file exists. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Consequently, the Board finds that VA has not completed its duty to assist and the claim must be remanded to obtain these records and associate them with the claims file. Accordingly, the case is REMANDED for the following action: 1. Obtain copies of any documents pertaining to the adjudication and/or readjudication of the issues of entitlement to an increased rating for residuals of a right knee injury, status post lateral meniscectomy; an increased rating for right knee synovitis, status post arthroscopic surgeries, with arthritis; and entitlement to a TDIU; since the Board's December 2011 decision/remand. Also obtain copies of any relevant records received or generated by the VA since December 2011, to include the February 10, 2012, VA examination report referenced by the Veteran's representative in his June 2013 Board submission. Once obtained, all of these documents should be associated with the Veteran's claims file. The case should then be returned to the Board for appropriate action. 2. In the event that these records do not exist or cannot be obtained, the RO must adjudicate the issues of (A.) entitlement to an increased rating for residuals of a right knee injury, status post lateral meniscectomy, currently evaluated as 30 percent disabling; and (B.) entitlement to an increased rating for right knee synovitis, status post arthroscopic surgeries, with arthritis, evaluated as 10 percent disabling. Notice of the determinations and the Veteran's appellate rights should be issued to the Veteran and his representative. Only if an appeal is completed as to either issue should such issue be referred to the Board for appellate consideration. 3. Thereafter, the RO must afford the Veteran a VA examination in order to obtain an opinion in connection with his TDIU claim. The claims folder should be made available to and reviewed by the examiner. All appropriate tests and studies should be conducted. The examiner must opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that the Veteran's service-connected disabilities, either alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation. If the examiner opines that the Veteran's service-connected disabilities do not cumulatively render him unemployable, the examiner should suggest the type or types of employment in which the Veteran would be capable of engaging with his current service-connected disabilities, given his current skill set and educational background. A complete rationale for all opinions expressed and conclusions reached should be set forth in a legible report. 4. The RO must then adjudicate the issue of entitlement to a TDIU. If the benefit sought on appeal is denied, the Veteran should be issued a supplemental statement of the case and given a reasonable opportunity to respond. The case should then be returned to the Board for appropriate action. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs