Citation Nr: 1337857 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 07-33 058 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for recurrent subluxation and lateral instability of the right knee. 2. Entitlement to an increased rating for chondromalacia of the right knee, currently evaluated as 10 percent disabling. 3. Entitlement to an initial rating in excess of 20 percent for recurrent subluxation and lateral instability of the left knee. 4. Entitlement to an increased rating for chondromalacia of the left knee, currently evaluated as 10 percent disabling. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active duty from January 1976 to January 1979 and from October 1981 to January 1984. This case originally came before the Board of Veterans' Appeals (Board) on appeal of an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office in San Diego, California (RO). In August 2011, the Board remanded the issues on appeal to the RO to obtain current VA evaluations of the Veteran's knees. VA examinations of the knees were conducted in November 2011. As VA evaluations of the knees were obtained and added to the claims files, there has been substantial compliance with the August 2011 remand instructions with respect to the issues decided below. Stegall v. West, 11 Vet. App. 268 (1998) (Holding that a remand by the Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders). The issues of entitlement to an initial rating in excess of 20 percent for recurrent subluxation and lateral instability of the right knee and entitlement to TDIU are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. FINDINGS OF FACT 1. The evidence does not show more than moderate subluxation or lateral instability of the left knee. 2. Range of motion of the right leg was from 0 to at least 90 degrees without significant pain on relevant VA examinations. 3. Range of motion of the left leg was from 0 to at least 100 degrees without significant pain on relevant VA examinations. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 20 percent for recurrent subluxation and lateral instability of the left knee are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5257 (2013). 2. The criteria for an evaluation in excess of 10 percent for chondromalacia patella of the right knee are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5010-5260 (2013). 3. The criteria for an evaluation in excess of 10 percent for chondromalacia patella of the left knee are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5010-5260 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012); see 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied. The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO sent the Veteran a letter in April 2005, prior to adjudication, which informed him of the requirements needed to establish entitlement to an increased rating. The Veteran was informed about effective dates in an April 2010 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In accordance with the requirements of VCAA, the April 2005 letter informed the Veteran what evidence and information he was responsible for obtaining and the evidence that was considered VA's responsibility to obtain. No additional private medical evidence was subsequently added to the claims files. VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. VA examinations were conducted in May 2010 and November 2011. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations are adequate for the issues adjudicated below, as they provide the current symptomatology of the Veteran's bilateral knee disabilities. Accordingly, there is adequate medical evidence of record to make a determination on the issues decided on appeal and VA's duty to assist with respect to obtaining a VA examination in this case has been met. 38 C.F.R. § 3.159(c)(4). The Board concludes that all available evidence that is pertinent to the claims decided herein has been obtained and that there is sufficient medical evidence on file on which to make a decision on the claims. The Veteran has been given ample opportunity to present evidence and argument in support of his claims. The Board additionally finds that general due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). Analysis of the Claims The Veteran seeks increased evaluations for his service-connected knee disabilities because he believes that they are not adequately compensated by the currently assigned ratings. The Veteran was originally granted service connection and assigned a noncompensable rating for chondromalacia of each knee, effective in January 1979, in an August 1979 rating decision. A January 2005 rating decision granted an increased rating of 10 percent for chondromalacia of each knee, effective April 30, 2004. An August 2006 rating decision granted service connection for recurrent subluxation and lateral instability of each knee and assigned separate 20 percent ratings effective December 30, 2005. Because the disabilities at issue all involve diagnostic codes for the knee, and the resolution of the claims for chondromalacia patella of the left and right knee involves the application of identical law to similar facts, all of the issues decided herein will be handled together for the sake of economy. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule). 38 C.F.R. Part 4 (2013). The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2013). Separate diagnostic codes identify the various disabilities. In considering the severity of a disability it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2013). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Nevertheless, where entitlement to compensation has already been established and an increase in the disability rating is at issue the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. In Fenderson, the United States Court of Appeals for Veterans Claims (Court) also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). In the selection of diagnostic codes assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With injuries and diseases, preference is to be given to the number assigned to the injury or disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27 (2013). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. See Butts v. Brown, 5 Vet. App. 532 (1993). 38 C.F.R. § 4.40 notes that disability of the musculoskeletal system is primarily the inability, due to damage or infection of 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 of part or all of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (2013). 38 C.F.R. § 4.45 provides that factors of disability involving a joint reside in reductions of its normal excursion of movements in different planes of motion and therefore, inquiry will be directed to such considerations as weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; and incoordination (impaired ability to execute skilled movements smoothly). 38 C.F.R. § 4.45 (2013). The Court has held that when a Diagnostic Code provides for compensation based upon limitation of motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must also be considered, and that examinations upon which the rating decisions are based must adequately portray the extent of functional loss due to pain "on use or due to flare-ups." DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). According to Diagnostic Code 5010, which concerns arthritis due to trauma that has been confirmed by x-ray, VA is to rate the disability at issue pursuant to Diagnostic Code 5003, which concerns degenerative arthritis confirmed by x-ray. 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2013). According to Diagnostic Code 5003, degenerative arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code(s), an evaluation of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2013). Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II (2013). Diagnostic Code 5256 addresses ankylosis of the knee and authorizes ratings from 30 to 60 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5256 (2013). Diagnostic Code 5257 provides ratings for impairment of the knee that includes recurrent subluxation or lateral instability. Slight recurrent subluxation or lateral instability of the knee is rated 10 percent disabling; moderate recurrent subluxation or lateral instability of the knee is rated 20 percent disabling; and severe recurrent subluxation or lateral instability of the knee is rated 30 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2013). Diagnostic Code 5258 grants a 20 percent evaluation for dislocation of semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258 (2013). Diagnostic Code 5259 grants a 10 percent evaluation for removal of semilunar cartilage that is symptomatic. 38 C.F.R. § 4.71a, Diagnostic Code 5259 (2013). Diagnostic Code 5260, limitation of flexion of the leg, provides a noncompensable rating if flexion is limited to 60 degrees, a 10 percent rating where flexion is limited to 45 degrees, a 20 percent rating where flexion is limited to 30 degrees, and a maximum 30 percent rating if flexion is limited to 15 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2013). Diagnostic Code 5261, limitation of extension, of the leg provides a non-compensable rating if extension is limited to five degrees, a 10 percent rating if limited to 10 degrees, a 20 percent rating if limited to 15 degrees, a 30 percent rating if limited to 20 degrees, a 40 percent rating if limited to 30 degrees, and a 50 percent rating if limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261; see also 38 C.F.R. § 4.71, Plate II (2013) (showing normal flexion and extension as between 0 degrees and 140 degrees). Under Diagnostic Code 5262, a 40 percent is assigned for nonunion of the tibia and fibula with loose motion and requiring a brace; a 30 percent rating is assigned for malunion with marked knee or ankle disability and a 20 percent is assigned for moderate knee or ankle disability. 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2013). It was noted on VA evaluation in July 2004 that the Veteran stopped working because of back problems. Physical examination of the knees showed range of motion from 0 to 140 degrees bilaterally. There was no loss on repetitive motion. X-rays showed mild degenerative changes. The diagnosis was bilateral chondromalacia patella. A September 2004 CT scan of the left knee showed evidence of prior tibial plateau fracture with associated degenerative change. The Veteran complained on VA evalaution of the knees in May 2005 of daily bilateral knee pain, worse when walking up stairs or when walking more than 15-20 minutes. Physical examination revealed a normal gait with no evidence of erythema, edema, or swelling. There was mild tenderness to palpation. The collateral ligaments were intact. Patellar compression test was postive on the left. Range of motion was to 110 degrees on the left, with discomfort at the end, and to 120 degrees on the right, with some discomfort at 100 degrees. The Veteran was able to perform approximately a 3/4 squat on the left of three repetitions with increased pain; he was able to squat three times on the right with some increased discomfort on the third. McMurray's test was negative on both sides. The diagnoses were status post tibial plateau fracture with degenerative change in the left knee, osteoarthritis of the left knee, and bilateral chondromalacia patella. The Veteran complained on VA evaluation of the knees in February 2006 of chronic instability and increased pain with bending, stooping, squatting, walking up or down hills, and walking up or down stairs. Physical examination showed 2+ effusion of both knees; he had 3+ Lachman's with bilateral positive pivot shift (gross instability). The knees were stable to varus and valgus stress. Range of motion was from 0 to 120 degrees with bilateral crepitation. McMurray's test was negative, but there was positive patellar compression. An MRI showed tears of the anterior cruciate ligament and medial meniscus. The diagnoses were bilateral condromalacia patella, chronic anterior cruciate ligament insufficiency with rotatory instability, and bilateral meniscus tears. It was noted that there was moderate to severe functional impairment and that range of motion and joint function were not additionally limited following repetitive use. The Veteran complained on VA evaluation in September 2007 of chronic bilateral knee pain with associated grinding and popping. There was a giving way sensation with kneeling, squatting, and stair climbing. The Veteran wore a knee brace. There was no subluxation or dislocation of either knee. Bilateral range of motion was from 0 to 120 degrees with pain over the anterior aspect on the right and with pain and crepitation over the anterior aspect on the left. Range of motion was not additionally limited by pain, weakness, fatigue, or lack of endurance following repetitive testing or flare-ups. There was grade 1 (out of 4) laxity of the left medial collateral and anterior cruciate ligaments and of the right anterior cruciate ligament. Lachman's sign was 1+ on each side. The impressions were chronic left knee pain, secondary to strain and tendonitis, with chronic anterior cruciate ligament tear, medial meniscus tear, and MRI evidence of an old healed fracture of the medial aspect of the tibial plateau with small popliteal cyst, patellofemoral pain síndrome, and patellar chondromalacia, with probable tricompartmental degenerative arthritis; and right knee pain secondary to anterior cruciate ligament tear, with tear of the posterior horn of the medial and lateral meniscus, strain and tendonitis, with patellofemoral pain syndrome, patellar chondromalacia, and mild tricompartmental osteoarthritis. A November 2007 Social Security Administration decisión granted disability benefits effective May 27, 2006, with a primary diagnosis of affective disorder and a secondary diagnosis of osteoarthrosis and allied disorders. VA treatment records for October and November 2008 reveal that the Veteran had crepitus but no instability of the knees. The diagnosis was degenerative joint disease of the knees. It was noted on VA evaluation of the knees in May 2010 that bilateral range of motion was from 0 to 133 degrees without pain. There was no additional loss of joint function on repetitive motion. The Veteran wore a knee brace with rigid side bars. There was valgus laxity of 5 degrees, with no varus laxity, on the right; there was valgus laxity of 10 degrees and varus laxity of 2 degrees on the left. McMurray's test as positive on the left. The diagnoses were left knee recurrent subluxation, anterior cruciate ligament tear and meniscus tear; right knee subluxation; and bilateral chondromalacia patella. In response to the August 2011 Board remand, a VA evaluation of the knees was conducted in November 2011. The Veteran noted instability with associated pain and snapping sensation when he pivoted to the side. He used knee braces at all times. He said that he did not run and that he experienced discomfort when he attempted to squat, stop, or kneel. He was taking medication for his knee pain. On physical examination, there was no indication of deformity, swelling, effusion, or temperature increase. Patellofemoral crepitation was noted. There were positive drawer and Lachman signs. There was no evidence of medial or lateral colateral ligament laxity. Range of motion of the knees was reported in November 2011 to be from 0 to 155 degrees without significant pain. Repetitive manipulation of the knees did not reveal increased pain or any further functional limitation. Significant anteroposterior laxity and anterior cruciate ligament deficiency were noted. The diagnoses were degenerative arthritis of the knees, bilateral, with patellar chondromalacia and anterior cruciate ligament deficiency. Findings on X-rays of the knees included bilateral degenerative changes and lateral subluxation of the tibia. The examiner noted that there was no evidence of subluxation of the left tibia. To warrant a rating in excess of 20 percent for recurrent subluxation and lateral instability of the left knee, there would need to be evidence of more than moderate recurrent subluxation or lateral instability of the left knee. The collateral ligaments were intact when the Veteran was examined in May 2005, and the knees were stable to varus and valgus stress on evaluation in February 2006. There was no subluxation or dislocation of the left knee in September 2007. There was no instability of the knee when the Veteran was treated by VA in October and November 2008. When seen in May 2010, there was valgus laxity of 10 degrees and varus laxity of 2 degrees on the left. The diagnoses in May 2010 included bilateral knee subluxation. However, when examined in November 2011, there was no evidence of medial or lateral collateral ligament laxity and no subluxation of the left knee. Because the pertinent evidence does not show the severe symptomatology required for a higher rating, a rating in excess of 20 percent is not warranted for recurrent subluxation or lateral instability of the left knee. To warrant a rating in excess of 10 percent for chondromalacia patella of either knee based on limitation of motion, there would need to be evidence of flexion limited to 30 degrees or extension limited to 15 degrees. Because the medical evidence shows that pain-free range of motion of the lower extremities has been from 0 to at least 90 degrees throughout the appeal period, with pain-free motion of each knee from 0 to more than 130 degrees on the most recent VA evaluations in May 2010 and November 2011, a rating in excess of 10 percent is not warranted for either knee under the schedular criteria for limitation of motion. Additionally, because there is no evidence of ankylosis, dislocation of semi-lunar cartilage, or malunion of the tibia and fibula, a higher evaluation is not warranted under another diagnostic code for the knee. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5262 (2013). As previously noted, when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements and 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The medical evidence does not show knee symptomatology that, based on the factors noted in DeLuca, 38 C.F.R. § 4.40, and 38 C.F.R. § 4.45, more nearly approximates the criteria for an increased evaluation at any time during the appeal because there was no additional limitation of motion reported on repetitive testing on evaluations in September 2007, May 2010, and November 2011. In VAOPGCPREC 23-97, the VA General Counsel concluded that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5010, 5257 (2013). The Veteran in this case is already assigned separate compensable evaluations for arthritis and instability of each knee. As neither limitation of flexion nor limitation of extension of either knee is severe enough, by itself, to warrant a compensable evaluation under the rating schedule, a higher rating is also not warranted for either knee disability based on VAOPGCPREC 9-04; 69 Fed. Reg. 59990 (2004), which involves rating compensable limitation of flexion and extension of the leg as separate disabilities under Diagnostic Codes 5260 and 5261. The Veteran is competent to report the symptoms related to his service-connected bilateral knee disabilities. His complaints are credible to the extent that they involve musculoskeletal pain. The Veteran's complaints have been considered in this case; however, evaluations for VA purposes have not shown the severity required for a higher rating for the disabilities at issue at any time during the appeal period, as discussed above. The Board has also considered whether the Veteran's claims should be referred for an extraschedular rating. See 38 C.F.R. § 3.321(b) (2012); Thun v. Peake, 22 Vet. App. 111, 114 (2008). Because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual Veteran's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability. Thun, 22 Vet. App. at 114. However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration. Id. The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). In this case, the Board finds that referral for extraschedular consideration is not warranted. As shown in the above discussion, the Veteran's service-connected knee disabilities are contemplated and reasonably described by the rating criteria discussed above. The Veteran does not have symptoms associated with these disabilities that have been left uncompensated or unaccounted for by the assignment of a schedular rating. See Thun, 22 Vet. App. at 115. Accordingly, a comparison of the Veteran's symptoms and functional impairment with the schedular criteria does not show that any one of the Veteran's knee disabilities presents "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b). The Board finds that the available schedular evaluations are adequate to rate these disabilities. In the absence of this threshold finding, there is no need to consider whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization. See Thun, 22 Vet. App. at 118-19 (holding that the Board's finding that the rating criteria were adequate to evaluate the claimant's disability was a sufficient basis for denying extraschedular consideration without regard to whether there was marked interference with employment). Therefore, referral for extraschedular consideration is not warranted. Finally, the Board finds that the preponderance of the evidence weighs against each of the Veteran's claims decided herein. Consequently, the benefit-of-the-doubt rule does not apply, and entitlement to higher initial ratings for the disabilities at issue, is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102; 4.3; Gilbert, 1 Vet. App. at 55. ORDER Entitlement to an initial rating in excess of 20 percent for recurrent subluxation and lateral instability of the left knee is denied. Entitlement to an increased rating for chondromalacia patella of the right knee, currently evaluated as 10 percent disabling, is denied. Entitlement to an increased rating for chondromalacia patella of the left knee, currently evaluated as 10 percent disabling, is denied. REMAND In the Board's August 2011 remand, the examiner was directed to opine on whether there was any subluxation and instability of each knee and, if so, to provide the degree of resulting impairment, meaning either mild, moderate, or severe. Although the VA examiner in November 2011 noted subluxation of the right tibia, he failed to provide an opinion on the severity of the subluxation. The Court has held that RO compliance with a remand is not discretionary, and that if the RO fails to comply with the terms of a remand, another remand for corrective action is required. Stegall v. West, 11 Vet. App. 268 (1998). As indicated above, the Board finds that the RO did not adequately comply with the terms of the Board's August 2011 remand. Id. Because the TDIU issue on appeal cannot be determined until all increased rating issues are resolved, it is inextricably intertwined with the increased rating issue remanded herein. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, this case is REMANDED to the AMC/RO for the following actions: 1. The VA examiner who evaluated the Veteran for knee disability in November 2011 will be requested to again review the evidence of record and provide an additional opinion, with a clear rationale based on the evidence of record, on the severity of the Veteran's right knee subluxation, meaning whether it is slight, moderate, or severe. If the medical professional who examined the Veteran in November 2011 is unavailable, another appropriate health care provider will review the evidence of record and provide the requested information. If the medical professional determines that an additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled and the Veteran informed as to the consequences for failure to report for a VA examination without good cause in accordance with 38 C.F.R. § 3.158, 3.655 (2013). However, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary. 2. Thereafter, the issues of entitlement to an initial evaluation in excess of 20 percent for recurrent subluxation and lateral instability of the right knee and TDIU will be readjudicated based on all relevant evidence on file. If either of the benefits sought on appeal remains denied, the Veteran and his representative must be provided a Supplemental Statement of the Case and must be afforded an appropriate opportunity to respond. 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 or by the Court 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). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs