Citation Nr: 1337914 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 09-00 205 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to a rating higher than 40 percent for residuals of fractures of the left tibia and fibula, both prior to August 10, 2007 and since December 1, 2007. 2. Entitlement to a rating higher than 20 percent for limitation of extension of the left knee, both prior to and since May 21, 2008. REPRESENTATION Veteran represented by: Andrew Stearns, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The Veteran served on active duty from June 1955 to June 1959. Following receipt of his initial VA claim, in a May 1960 rating decision the Department of Veterans Affairs (VA) Regional Office (RO) in San Francisco, California, granted him service connection for residuals of a fractured left tibia and fibula and assigned the disability an initial 0 percent (i.e., noncompensable) rating, retroactively effective from June 5, 1959, the day following his discharge from service. The current appeal to the Board of Veterans' Appeals (Board/BVA) is from the RO's more recent March 2008 rating decision, which was not based on his original claims folder, including the prior rating decision. This decision, too, resulted in a grant of service connection for the same disability, but recharacterized to acknowledge two fractures, rather than one, and to include traumatic arthritis of the left knee, status post partial medial meniscectomy, but also the assignment of a higher 20 percent rating for the disability effective August 10, 2007, the date of receipt of the Veteran's more recent claim. He appealed both the 40 percent rating assigned the disability and the effective date assigned the 40 percent rating. By Decision Review Officer (DRO) decision dated in October 2008 and rating decision dated in April 2009, the RO increased the rating assigned for his disability to 30 percent and then to 40 percent, retroactively effective from August 10, 2007. In the latter decision, the RO explained that it had discovered an older claims folder of his, which housed the original claim and rating decision, identified by a different claims number, 21 417 431, and, as a result, had consolidated all documents from both folders into one. By rating decisions in March and September 2013, the RO granted the Veteran a temporary total rating for his newly- characterized left leg disability, effective from December 1, 2007 to April 30, 2008, and also granted him a separate 20 percent rating for limitation of extension of his left knee (on account of arthritis), effective from May 21, 2008. Based on the RO's actions in this regard, the Board has recharacterized the original claim on appeal as now involving two. The Veteran testified in support of this appeal in October 2010 during a hearing at the RO before the undersigned Veterans Law Judge (VLJ) of the Board, in other words at a Travel Board hearing. The Board subsequently, in November 2012, remanded the case for further development. The Veteran has since, in January 2013, also participated in an informal conference with a DRO at the RO. Please also note the Board has advanced this appeal on the docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Board addresses the claim of entitlement to a rating higher than 20 percent for the limitation of extension of the left knee with post-traumatic arthritis, status post partial medial meniscectomy, both prior to and since May 21, 2008, in the REMAND section of this decision. Whereas the Board, instead, is going ahead and deciding the claim for a rating higher than 40 percent for the residuals of the fractures of the left tibia and fibula, both prior to August 10, 2007 and since December 1, 2007. FINDINGS OF FACT 1. The Veteran is in receipt of the highest schedular rating assignable under Diagnostic Code (DC) 5262 for impairment of the tibia and fibula, and the criteria of this DC contemplate the level of severity of, and symptomatology associated with, the impairment. 2. Symptoms associated with his left knee arthritis include pain and limited extension, rated separately and discussed in the REMAND section of this decision, not limitation of flexion, ankylosis or instability. 3. He has a painful scar on his left leg as an additional residual of the fractures he sustained in service and consequent surgery. 4. As of August 10, 2006, it was factually ascertainable that the impairment of his left tibia and fibula was 40-percent disabling. CONCLUSIONS OF LAW 1. The criteria are met for a 40 percent rating for the residuals of the fractures of the left tibia and fibula as of August 10, 2006. 38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. §§ 3.400, 4.71a, DC 5262 (2013). 2. The criteria are not met, however, for a rating higher than 40 percent for this disability - either prior to August 10, 2006 or since December 1, 2007. 38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. §§ 3.321, 3.400, 4.1, 4.3, 4.6, 4.7, 4.10, 4.71a, DC 5262 (2013). 3. But the criteria are met for a separate 10 rating for the painful scar on the left leg. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.10, 4.14, 4.118, DC 7804 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, including apprising him of the information and evidence VA will obtain versus the information and evidence he is expected to provide. 38 C.F.R. § 3.159 (2013). Here, prior to adjudicating the Veteran's claim, by letters dated in October 2007 and December 2007, the RO sent him the required VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II) (indicating that VCAA notice, ideally, should precede the initial adjudication of the claim). The Board and RO provided the Veteran further notice during his October 2010 hearing before the undersigned VLJ and February 2013 informal conference with the local DRO. The October 2010 Board hearing included the required explanation of the nature of the claim on appeal, including that it involved a dispute not only with the rating the RO had assigned the Veteran's left leg disability but also the effective date assigned the rating, and identified possible sources of evidence that may have been overlooked and might tend to substantiate the appeal, including, in part, evidence of an alleged 1978 informal claim. 38 C.F.R. 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). Also pursuant to the VCAA, VA has a duty to assist the Veteran by obtaining potentially relevant records, affording him an examination or obtaining a medical opinion when necessary to make a decision on a claim. Here, the RO met this duty. 38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). It attempted to obtain all potentially relevant documents, including service records, post-service VA and private treatment records and correspondence sent to VA. It also afforded the Veteran VA examinations, the reports of which collectively describe the severity of his left leg disability. Neither he nor his attorney alleges that VA provided deficient notice or assistance during the course of this appeal or that the VLJ or DRO failed to satisfy the hearing requirements of Bryant. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (clarifying that VA notice and assistance errors, even when shown to have occurred, are not presumptively prejudicial - rather, must be judged on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran has this burden of proof of not only establishing error but also, above and beyond that, of showing how it is unduly prejudicial, meaning caused actual harm so as to affect the essential fairness of the adjudication or the outcome of his claim). II. Analysis The Veteran claims entitlement to a rating higher than 40 percent, preferably 100 percent, for the residuals of the fractures of his left tibia and fibula that he sustained during his military service, including because of the consequent itching, swelling and pain where doctors inserted the pin below his knee and at the fracture sites, loose motion or nonunion of the left tibia and fibula, requiring use of brace, and arthritis of the left knee with pain and limited motion. He asserts that the symptoms associated his left knee arthritis should be rated separately. He also claims that the increased rating, whatever the percentage, should be assigned an earlier effective date corresponding to the date these problems surfaced. A. Disability Rating First of all, since the Veteran and his attorney expressed some of the contentions noted above and below, the RO has separately service connected the Veteran for limited extension of the left knee on account of his painful left knee arthritis. The Veteran has not specifically indicated that there are other left knee symptoms he is experiencing that also should be rated separately, but given that he is, in general, claiming entitlement to a 100 percent rating for all residuals of the fractures, considered collectively, whether rated separately or not, the Board will consider this matter in this context. The Board will not consider the matter of whether an increased rating may be assigned the limited extension of the left knee, as that question is the subject of the REMAND development below. Initially, in a December 2008 VA Form 9, the Veteran indicated that he would "accept a rating of 60 percent to cease any further appeal of this claim." During his October 2010 hearing and in a December 2010 written statement, however, he indicated he wanted an even higher 100 percent disability rating. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (It is presumed a Veteran is requesting the highest possible rating for a disability unless he receives the highest possible rating or expressly indicates he is content with a lesser rating, albeit higher rating than he had initially). According to written statements he and his representative have submitted since 2007 and the hearing testimony, the Veteran's left leg symptoms have not improved since his initial fractures and surgery in service, necessitating further surgeries and the daily use of a brace, cane and pain medication, severely impair his quality of life, hinder his use of his left leg beyond that contemplated in the rating schedule, interfere with his ability to work and limit his income. Allegedly, these symptoms should be rated under all applicable DCs, including DC 5256, which allows for a 60 percent rating, and all reasonable doubt should be resolved in his favor. He asserts that the 40 percent rating does not account for his knee injury and that all of his knee symptoms should be rated separately. He has pointed out that the pin, which causes the itching and swelling, can never be removed without destroying his knee and in the future a knee replacement might be necessary. He has testified that he stopped working in 2007 because he bumped his knee, resulting in inflammation and necessitating surgery, and that since then he has unsuccessfully attempted to obtain a sales job. The 40 percent rating assigned for the residuals of the tibia and fibula fractures does not now contemplate any left knee symptomatology and, instead, is based solely on the misalignment of the Veteran's tibia and fibula secondary to the fractures and resultant surgery in service. This misalignment necessitates the use of ambulating aids, including a brace. The misalignment and need for the brace are contemplated in the 40 percent rating assigned this disability, the maximum rating assignable under DC 5262. See 38 C.F.R. § 4.71a, DC 5262. In certain circumstances, including when the rating criteria are inadequate to rate a disability, a claimant may be assigned an increased rating on an extra-schedular basis. The question of whether such a rating may be assigned on such a basis is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign a rating on an extra-schedular basis in the first instance, when the question is raised either by the claimant, or reasonably by the evidence of record, the adjudicator must specifically decide whether to refer the claim to the Chief Benefits Director of VA's Compensation and Pension Service under 38 C.F.R. § 3.321 for consideration of the matter. Barringer v. Peake, 22 Vet. App. 242 (2008). He is authorized to approve the assignment of an extra-schedular rating if the claim "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). If the claimant or the evidence raises the question of entitlement to an increased rating on an extra-schedular basis, as a threshold matter, the Board must determine whether the evidence before VA presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. This requires comparing the level of severity and symptomatology of the service-connected disability with the established criteria found in the rating schedule pertaining to that disability. Thun v. Peake, 22 Vet. App. 111, 118 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). If the criteria reasonably describe the level of severity and symptomatology of the disability, the disability picture is contemplated by the Rating Schedule, the assigned schedular rating is adequate and no referral is necessary. Id. If the criteria do not reasonably describe the level of severity and symptomatology of the disability, the disability picture is not contemplated by the Rating Schedule and the assigned schedular rating is inadequate. The RO or Board must then determine whether the exceptional disability picture involves other related factors such as those outlined in 38 C.F.R. 3.321(b)(1) as "governing norms", including "marked interference with employment" and "frequent periods of hospitalization". Id. In this case, the criteria of DC 5262 are adequate as they contemplate the level of severity of, and symptomatology associated with, impairment of the Veteran's tibia and fibula. He reports multiple residuals of the in-service fractures, some affecting his left knee, some involving his left leg scar (discussed below). The reported use of a brace is the only problem he associates with his tibia and fibula impairment and, as previously indicated, that problem is specifically contemplated in the 40 percent rating assigned the impairment. The misalignment of the bones, which medical professionals indicate caused the development of the left knee arthritis, is also contemplated in the 20 percent rating. As such, a referral for extra-schedular consideration is unnecessary. The question now becomes whether he has any other residuals of the in-service fractures, which are not rated as part of the previously discussed disability (impairment of the tibia and fibula under DC 5262), or as part of the left knee disability (limited extension under DC 5261 on account of painful arthritis). It is possible for a claimant to have separate and distinct manifestations from the same injury, which permit rating the manifestations under several DCs. The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition(s). Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Pyramiding, which is the evaluation of the same disability or the same manifestation of a disability under different DCs, is to be avoided. 38 C.F.R. § 4.14. Here, according to private medical records dated in 2007, 2008, 2011 and 2012, VA examination reports and a February 2013 addendum opinion, although the Veteran exhibited limited flexion of his affected left knee during the periods of time at issue in this appeal, such flexion was never shown to be sufficiently severe as to warrant a separate rating under DC 5260 or 5256. He never had flexion limited to 60 degrees or less, including during flare-ups or on repetitive use, let alone ankylosis. Ankylosis, incidentally, is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996), citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999). See, too, Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. While there is no disputing he has some limitation of motion of his knee, especially on extension even if somewhat less so on flexion, particularly on account of his pain, it cannot be said that his motion is so restricted as to amount to ankylosis, which essentially contemplates absolutely no motion at all. In addition, doctors never confirmed his assertion that he had left knee instability. In any event, although they acknowledged use of a brace and cane, which often suggest instability, that problem is contemplated in the 40 percent rating assigned him under DC 5262. Assigning him a separate rating for the use of the brace under DC 5257, assuming such use is indicative of instability, would amount to pyramiding. 38 C.F.R. § 4.14. What would not amount to pyramiding is the assignment of a separate 10 percent rating for a painful scar on his left leg. See 38 C.F.R. § 4.118, DC 7804. He reports that the painful scar constantly affects him, causing swelling and itching. According to the examiner who prepared the report of VA examination conducted in July 2011, such scar exists, is painful and should be rated separately. The examiner who performed the December 2012 examination disagreed, specifically indicating the scar was not painful. But the evidence concerning this is clearly in relative equipoise, meaning probatively both for and against this notion, requiring resolution of this reasonable doubt in the Veteran's favor. 38 C.F.R. §§ 3.102, 4.3. B. Effective Date By rating decision dated in May 1960, the RO granted the Veteran service connection for residuals of a fracture, left tibia and fibula, and assigned the disability an initial 0 percent rating effective June 5, 1959. The RO since has increased the rating assigned this disability to 40 percent, effective August 10, 2007. According to the representative's September 2012 written statement, the appropriate effective date to assign the greater rating, whether increased or not, is June 5, 1969, the day after the Veteran's separation from service, March 15, 1960, the day he first submitted a claim to VA for benefits based on service-related injuries, or May 4, 1978, the day he mailed a letter to Max Cleland, then head of VA, seeking entitlement to benefits for the injury in service. Generally, the effective date of an award based on an original claim or a claim for increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C.A. § 5110(a) (West 2002). In the case of a claim for increase, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if a claim is received by VA within one year after that date; otherwise the effective date will be the date of receipt of claim or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(o)(2) (2013). This means that, if the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of the claim. If the increase occurred after the date of the claim, the effective date is the date of the increase. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(1)(2). See also Harper v. Brown, 10 Vet. App. 125 (1997); VAOPGCPREC 12-98 (1998). See, too, Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010) (explaining that the legislative history of 38 U.S.C.A. § 5110(b)(2) was to provide Veterans a one-year grace period for filing a claim following an increase in the severity of a service-connected disability). A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a) (West 2002); 38 C.F.R. § 3.151(a) (2012). "Claim" is defined broadly to include a formal or an informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-5 (1998). Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). The Veteran filed his original claim for service connection for residuals of his in-service left leg fractures in March 1960 and does not contend that he appealed the RO's May 1960 denial of that initial claim. The RO's decision is thus final. 38 U.S.C. § 4005(b) (1958); 38 C.F.R. § 3.104(a) (1956, Supp. 1960). His representative questions how VA could have rejected that claim and left the Veteran without relief knowing that he had been hospitalized in service for his injury for in excess of 20 months and, at the time of the claim, had residual swelling and pain in his left leg; these symptoms might have been less than 10-percent disabling, but not zero (0)-percent disabling. Allegedly, the Veteran did not appeal the disability rating the RO initially assigned his left leg disability as he did not want to dwell on his injury. Rather, he endured the pain and discomfort, applied to become a postal carrier, was hired to work at the counter, and did not want to jeopardize his position by challenging the VA decision, taking medical leave, or being classified as disabled (in the 1960s there was a stigma associated with such actions). The representative asserts that, in any event, the Veteran cannot be held liable for failing to appeal the 1960 decision. Allegedly, in 1960 and 1976, the political and social environments were such that the Veteran was unable to take action as it would affect his employment and earning capability. The representative points out that the Navy trained the Veteran not to question authority and, as a 22-year old African-American, he was especially dissuaded from doing so. The representative also points out that VA's benefit system in ineffective and the Veteran should not be held accountable for this ineffectiveness. It is reportedly evidenced by the fact that VA erred in mishandling the Veteran's original claims folder and took years to consolidate the documentation associated with the present claims with that of the original claim. The representative requests the Board to consider these extenuating circumstances. The Board indeed acknowledges that there might have been extenuating circumstances surrounding the Veteran's failure to appeal the initial 0 percent rating the RO assigned his left leg disability. And even assuming VA's mix up with his recent claim somehow establishes its ineffectiveness or an error in processing his 1960 claim, the fact remains that, after he filed the 1960 claim, the RO denied it and he did not appeal the decision. He does not contend otherwise, including by asserting that he never received notice of the denial. As such, for him to be awarded an effective date based on the 1960 final and binding denial of his initial claim, he has to collaterally attack that prior denial by alleging that it contained clear and unmistakable error (CUE). See Flash v. Brown, 8 Vet. App. 332, 340 (1995); Rudd v. Nicholson, 20 Vet. App. 296 (2006) (there is no basis for a free-standing earlier effective date claim). Or he has to show that he filed a request to reopen the claim based upon new and material evidence. See Cook v. Principi, 318 F.3d 1334, 1339 (Fed.Cir.2002) (discussing the types of collateral attack authorized to challenge a final decision by the Secretary); DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006). And even assuming the filing of a claim to reopen, the statutory framework does not allow the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated on that reopened claim. Sears v. Principi, 16 Vet. App. 244, 248 (2002). Rather, for reopened claims, the effective date shall be the date of receipt of the reopened claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r). The representative agrees that the Veteran's failure to appeal the decision is not an impediment to the assignment of an earlier effective date. He argues the evidence in this case is sufficient to overcome the finality of the 1960 decision and this case must be resolved in the Veteran's favor based on reasonable doubt. Allegedly, the 1960 decision contains CUE. Alternatively, he argues that, following the RO's issuance of the 1960 decision, in 1978, the Veteran submitted new and material evidence to reopen the claim. According to the representative, in 1978, when the Veteran filed what he perceives as the second claim or claim to reopen, it was not a good time to be a Veteran or to seek benefits. It was time to keep one's head down and work hard to try and get ahead, but the Veteran was older and not as naïve regarding his right to VA benefits. The Veteran therefore deposited the letter to Max Cleland in the mailbox, but has no postal documentation to confirm that VA received it. In this context, it should be noted that the provisions of 38 U.S.C.A. § 5110 refer to the date an "application" is received. And "date of receipt" means the date on which a claim, information or evidence was received by VA. 38 C.F.R. § 3.1(r). He reportedly never received a response from VA, despite following up with multiple phone calls, but points out that during his hearing he testified under oath to these facts. First, although the Veteran attempted to collaterally attack the 1960 denial, as alleged, by rating decision dated in March 2013 the RO found that the May 1960 decision did not contain CUE, and there is no evidence in the physical claims file or electronic claims file ("Virtual VA") indicating the Veteran since has appealed that decision as it specifically relates to this issue. Second, although the claims file includes a May 1978 letter addressed to Max Cleland, then Head of VA, and signed by the Veteran, as the Board pointed out in its December 2010 remand, this letter is insufficient to establish the filing of a second claim or claim to reopen. To reiterate, the provisions of 38 U.S.C.A. § 5110 refer to the date an application is received. And "date of receipt" means the date on which a claim, information or evidence was received by VA. 38 C.F.R. § 3.1(r). As the Veteran does not contend, and the evidence does not otherwise establish, that VA actually received that letter, the date of the letter cannot serve as the effective date for any increased rating. According to the claims file, for decades after 1978, the Veteran did not correspond with VA. On August 10, 2007, however, the RO received a formal application from him, which requested compensation for multiple disabilities, including his left leg. As the May 1960 rating decision assigning him a 0 percent rating for his left leg disability had become final and binding by that time, and there was no evidence of VA having received another claim filed at any time between 1960 and July 2007, when the RO increased the rating assigned his left leg disability to 40 percent, it assigned the increase an effective date of August 10, 2007, the day VA had received his most recent claim. However, according to private treatment records upon which the RO based the 40 percent rating, as of October 2007 he had not shown any dramatic improvement from before the surgery. Such a finding indicates that, prior to August 2007, when the surgery occurred, his left leg was at least as equally as disabling if not worse, certainly 40-percent disabling. Thus, the 40 percent rating may be assigned an earlier effective date of August 10, 2006, but no earlier, one year immediately preceding the receipt of his increased-rating claim. Gaston, 605 F.3d at 983. ORDER The 40 percent rating is granted for the residuals of the fractures of the left tibia and fibula as of an earlier effective date - namely, as of August 10, 2006 - subject to the statutes and regulations governing the payment of VA retroactive compensation. But a rating higher than 40 percent for the residuals of the fractures of the left tibia and fibula, either prior to August 10, 2006 or since December 1, 2007, is denied. However, a separate 10 rating is granted for the associated painful scar on the left leg, subject to the statutes and regulations governing the payment of VA compensation. REMAND The Veteran is now separately service connected for limited extension of his left knee on account of his left knee arthritis. On occasion during the course of this appeal, he has asserted that his left leg disability, considered broadly to include both residuals of the tibia and fibula fractures and his left knee symptoms, interfered with his employability. During his hearing, however, he clarified that his left knee symptoms caused his unemployability. Specifically, he testified that he had stopped working in 2007 because he had bumped his knee, resulting in inflammation and necessitating surgery, and that since then he has attempted to obtain a sales job, but unfortunately only unsuccessfully. By so testifying, he is raising claims of entitlement to a total disability rating based on individual unemployability (TDIU) due to his service-connected left knee disability and for an increased rating on an extra-schedular basis, components of the claim being remanded. During the 2012 VA examination, the examiner acknowledged the Veteran was not working. He did not, however, comment on whether the Veteran's left knee disability or service-connected disabilities, considered collectively, preclude him from reentering the workforce and obtaining employment that could be considered substantially gainful versus just marginal in comparison. Private medical records suggest that such might be the case. In addition, the RO did not consider whether the claim being remanded should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration. 1. Return the Veteran's claims file to the VA examiner who evaluated the Veteran in December 2012 for an addendum opinion. If this examiner is not available, transfer the claims file to another VA examiner for initial review of the claims file and submission of an opinion. Ask the examiner to do the following: a. Review the claims file, paying particular attention to the report of the December 2012 examination and all private medical records in the claims file, the latter of which suggest the Veteran's employability is somewhat impaired, indeed if not altogether precluded, because of his left knee disability. b. Offer an opinion as to whether the Veteran's service-connected left knee disability, alone or in conjunction with his other service-connected disabilities, render him unemployable. i. In so doing, provide rationale with specific references to the record, for the opinion expressed. ii. If the opinion cannot be expressed without resort to speculation, indicate this fact in writing in the record and note any evidence that could be secured to aid in providing such an opinion. 2. Review the written opinion to ensure it includes the requested information and, if not, return it to the examiner for correction. 38 C.F.R. § 4.2. 3. Then readjudicate the increased-rating claim based on this and all other additional evidence. Also adjudicate the derivative claim of entitlement to a TDIU, a component of the increased-rating claim. Consider whether the written opinion and other evidence cited in this remand necessitates submission of the increased-rating claim to the Director of the Compensation and Pension Service for consideration on an extra-schedular basis. If either the increased rating or TDIU claim is denied, send the Veteran and his representative a supplemental statement of the case and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these remaining claims. The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs