Citation Nr: 1514255 Decision Date: 04/02/15 Archive Date: 04/09/15 DOCKET NO. 13-04 079 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for arthritis of the left knee. 2. Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Martz Ames, Counsel INTRODUCTION The Veteran had active service from September 1975 to September 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction over the Veteran's claims file was subsequently transferred to the VA RO in St. Paul, Minnesota. A review of the Virtual VA paperless claims processing system reveals additional VA treatment records from May 2011 through November 2012. In the November 2012 Statement of the Case, the RO specifically stated that these records were reviewed prior to the adjudication of the claim. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. The Veteran testified at a hearing in February 2015 before the undersigned. A copy of the transcript has been associated with the Veteran's electronic claims file. Although the Agency of Original Jurisdiction (AOJ) did not certify the issue of TDIU as part of this appeal, the Veteran asserted that his service-connected disability was an extremely significant contributor to his recent unemployment. Therefore a TDIU claim has been reasonably raised by the record, and the Board has jurisdiction to consider the issue of entitlement to a TDIU as part of the claim for an increased rating for a left knee disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The issue of entitlement to service connection for insomnia, to include as secondary to a service-connected left knee disability has been raised by the record in the Veteran's January 2014 VA Form 9, but has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT The Veteran has degenerative arthritis of the left knee with painful motion, flexion limited to 80 degrees when considering pain, normal extension, and subjective complaints of slight instability. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for degenerative arthritis of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5258, 5260, 5261, 5262, 5263 (2014). 2. The criteria for a separate 10 percent disability rating for slight instability of the left knee have been approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.71a, Diagnostic Code 5257 (2014). REASONS AND BASES FOR FINDING AND CONCLUSIONS I. Duty to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions set forth in the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2014). Letters in March 2010, January 2011, April 2012, and February 2014 satisfied the duty to notify provisions with regard to the Veteran's claim. With regard to the duty to assist, the Veteran's service treatment records, VA medical treatment records, and indicated private medical records have been obtained. The Veteran was afforded VA examinations in January 2009, August 2011, and August 2012 to evaluate the severity of his left knee disability. The VA examinations were adequate because they were based upon consideration of the Veteran's pertinent medical history, his lay assertions and complaints, and because they describe his left knee disability in detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). The Veteran testified at a hearing before the undersigned in February 2015. The hearing focused on the elements necessary to substantiate his increased rating claim and, through his testimony and his representative's statements, the Veteran demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. See Bryant v. Shinseki, 23 Vet. App. 488 (2010); see also Procopio v. Shinseki, 26 Vet. App 76 (2012). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Shinseki v. Sanders, 556 U. S. 396, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims, to include the opportunity to present pertinent evidence. II. Increased Rating Claim Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.20 (2014). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2014). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Furthermore, when it is not possible to separate the effects of the service-connected disability from a non service-connected condition, such signs and symptoms must be attributed to the service-connected disability. 38 C.F.R. § 3.102 (2014); Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2014). 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. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Veteran's entire history is to be considered when making a disability determination. 38 C.F.R. § 4.1 (2014); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a competent source. Second, the Board must determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of the evidence in light of the entirety of the record. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2014). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2014). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran's left knee disability is currently assigned a 10 percent disability rating under Diagnostic Code 5260, limitation of flexion of the leg. 38 C.F.R. § 4.71a (2014). Although, as discussed below, the Veteran's limitation of flexion does not meet the criteria for a 10 percent rating, it is the intention of the rating schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2014); see also Burton v. Shinseki,25 Vet. App. 1, 5 (2011). In this case, the Veteran's left knee disability is assigned a 10 percent rating solely as a result of painful, limited motion. When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40 (2014); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Under Diagnostic Code 5260, limitation of flexion of the leg, a noncompensable evaluation is warranted when flexion is limited to 60 degrees. A 10 percent evaluation is warranted when flexion of the leg is limited to 45 degrees. A 20 percent evaluation is warranted when flexion is limited to 30 degrees. 38 C.F.R. § 4.71a (2014). Normal flexion is 140 degrees. 38 C.F.R. § 4.71, Plate II (2014). Even when considering painful motion and functional loss, the Veteran's loss of flexion does not more closely approximate 30 degrees. At his January 2009 VA examination, the Veteran reported weakness, stiffness, and occasional giving way. His flexion was 120 degrees with pain at the endpoint of motion. After repetitive testing, he did not have additional limitation of motion. At his February 2010 VA orthopedic examination conducted in connection with another claim not currently on appeal, his left knee flexion was 130 degrees with no pain except on weight bearing. There was no additional limitation of motion following repetitive motion testing. At his August 2011 VA examination, the Veteran complained of weakness, swelling, stiffness, instability, and episodes of locking. His flexion was 120 degrees with pain at 80 degrees. He had no additional limitation of motion after repetitive testing. A September 2011 VA treatment record noted that his flexion was 120 degrees. A May 2012 VA treatment record noted that his flexion was 130 degrees. At his August 2012 VA examination, his flexion was 130 degrees with pain at 110 degrees. He had less movement than normal and painful motion, but the examiner did not find any other types of functional impairment as set forth in 38 C.F.R. §§ 4.40 and 4.45. After repetitive testing, there was no additional limitation of motion. He reported that he was unable to perform jobs that required long periods of standing or walking. The examiner noted that "...employment with restrictions is still possible." At his February 2014 VA examination, the Veteran's left knee flexion was 120 degrees with pain at 90 degrees. After repetitive testing, he did not have additional limitation of motion. The examiner found that the Veteran had painful limited motion, disturbance of locomotion, and interference with sitting, standing, and weight bearing. The examiner stated that, "it is more likely than not...that pain, but not weakness, fatigability or incoordination, could significantly limit functional ability during flare-ups, or when the joint is used repeatedly over a period of time and that there is additional limitation due to pain with change in the base line range of motion due to 'pain on use or during flare-ups.' It would be pure speculation to state what additional ROM loss would be present due to pain on use or during flare-ups since the Veteran is not examined during a flare-up." At worst, the Veteran's flexion was limited to 120 degrees with pain beginning at 80 degrees in August 2011, and he has had painful motion throughout the appeal period. Even interpreting the evidence in the most favorable light and assuming that his flexion is limited to 80 degrees, where his pain began during range of motion testing in August 2011, his limitation of flexion does not more closely approximate limitation to 30 degrees, even when considering pain and functional loss. In fact, it does not more closely approximate the criteria for a noncompensable evaluation. 38 C.F.R. § 4.71a (2014). Therefore, a 20 percent disability rating under Diagnostic Code 5260 is not warranted. The Board must consider other potentially applicable Diagnostic Codes for the evaluation of the Veteran's left knee disability. Under Diagnostic Code 5261, limitation of extension of the leg, a noncompensable evaluation is warranted when extension is limited to 5 degrees. A 10 percent evaluation is warranted when extension of the leg is limited to 10 degrees. A 20 percent evaluation is warranted when extension is limited to 15 degrees. 38 C.F.R. § 4.71a (2014). Normal extension is 0 degrees. 38 C.F.R. § 4.71, Plate II (2014). Even when considering pain, the Veteran's right knee extension does not more closely approximate limitation of extension to 15 degrees, which is required for a 20 percent evaluation. In fact, it does not more closely approximate the criteria for a noncompensable evaluation. 38 C.F.R. § 4.71a (2014). The record has consistently shown that the Veteran's extension has been normal at 0 degrees. It was normal at all of his VA examinations. Further, the majority of his VA examination reports note that he did not have painful extension, with the exception of a single finding at his January 2009 VA examination noting a range of motion of 0 degrees of extension to 120 degrees of flexion with pain at the extremes of motion. This is the only recorded instance of painful extension, and even when considering his pain and functional loss, his extension remains normal and does not more closely approximate a limitation to 15 degrees. For these reasons, Diagnostic Code 5261 is not more favorable to the Veteran. The Veteran has advanced competent, credible lay assertions of left knee pain. Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). However, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain, may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance." Id., quoting 38 C.F.R. § 4.40. The Veteran has provided competent, credible descriptions of his symptoms, including pain. In his January 2014 VA Form 9, he stated that he has limited motion, weakness, excessive fatigue, lack of endurance, and incoordination. He also reported pain, stiffness, popping and grinding, and an altered gait. At his February 2015 hearing, he testified that weight bearing was painful and that he could not run, climb stairs, or use a ladder without a handrail. However, as discussed above, the 10 percent disability rating already assigned under Diagnostic Code 5260 contemplates his left knee painful motion and functional loss, and the record does not show that it causes additional functional impairment such that the criteria for higher ratings under Diagnostic Codes 5260 or 5261 would be more closely approximated. The Board is bound in its decisions by the regulations of the Department, instructions of the Secretary, and precedent opinions of the General Counsel of the VA. 38 U.S.C.A. § 7104(c) (West 2014); 38 C.F.R. § 20.101(a) (2014). VA's General Counsel has found that separate ratings are available for limitation of flexion and limitation of extension under Diagnostic Codes 5260 and 5261. VAOPGCPREC 9-2004 (2004). As noted above, the Veteran's limitation of flexion does not meet the criteria for a noncompensable evaluation under Diagnostic Code 5260 and his extension is normal. Therefore, separate evaluations under Diagnostic Codes 5260 and 5261 are not warranted. VAOPGCPREC 9-98 (1998); VAOPGCPREC 9-2004 (2004). The Veteran has left knee arthritis that has been confirmed by x-ray. Under Diagnostic Code 5003, degenerative arthritis, if the limitation of motion is noncompensable, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2014). In the absence of limitation of motion, a 10 percent evaluation is warranted when there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is warranted under Diagnostic Code 5003 where there is x-ray evidence of the involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a (2014). The Veteran's arthritis does not involve 2 or more major joints or 2 or more minor joint groups. Further, there are no incapacitating exacerbations. Therefore, a 20 percent disability rating under Diagnostic Code 5003 is not warranted. VA's General Counsel has held that a claimant who, as in this case, has arthritis as shown by x-ray and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997). However, the General Counsel subsequently clarified that for a knee disability rated under Diagnostic Codes 5257 or 5259 to warrant a separate rating for arthritis based on x-ray findings and limitation of motion, the limitation of motion under Diagnostic Codes 5260 or 5261 need not be compensable but must at least meet the criteria for a noncompensable rating. VAOPGCPREC 9-98 (1998). But, read together, Diagnostic Code 5003 and 38 C.F.R. § 4.59 provide that painful motion due to degenerative arthritis, which is established by x-ray, is deemed to be limitation of motion and warrants the minimum rating for a joint, even if there is no actual limitation of motion. Id., citing Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). As noted above, a 10 percent evaluation was granted in the August 2011 rating decision based upon painful limitation of motion even though it did not meet the criteria for a noncompensable evaluation. Under Diagnostic Code 5257, a 10 percent evaluation is warranted when there is slight recurrent subluxation or lateral instability. A 20 percent evaluation is warranted when there is moderate recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a (2014). The criteria in Diagnostic Code 5257 are based upon instability and subluxation, not limitation of motion, as a result, the criteria set forth in DeLuca do not apply. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The words "slight," "moderate" and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2014). It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2014). The competent medical evidence of record shows that the Veteran has slight instability of the left knee. He is competent to report the symptoms of an unstable joint. Layno v. Brown, 6 Vet. App. 465 (1994). His assertions are credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). He has consistently reported that his left knee gives way. In September 2011, he reported that he had fallen as a result of his knee giving way. The record shows that the Veteran has used a left knee brace as early as January 2009. At his February 2015 hearing, he testified that he used a brace all the time. The record also shows that the Veteran uses a cane. Because he has slight instability of the left knee joint, a separate 10 percent evaluation will be granted under Diagnostic Code 5257. 38 C.F.R. § 4.71a, VAOPGCPREC 9-98 (August 14, 1998). However, VA examiners in January 2009, August 2011, August 2012, and February 2014 found that his left knee joint was stable. A March 2009 VA treatment record noted that the Veteran's joint was stable, and at a September 2009 VA orthopedic consult, it was found to be "very stable." Therefore a 20 percent disability rating is not warranted for his subjective complaints of instability because the objective medical evidence of record has consistently shown that his left knee is stable to testing. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2014). The Veteran has a bucket handle tear of the medial meniscus that is confirmed by MRI. Under Diagnostic Code 5258, dislocation of the semilunar cartilage, a 20 percent evaluation is warranted for frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a (2014). The criteria in Diagnostic Code 5258 are conjunctive, not disjunctive and therefore must all be met. See Melson v. Derwinski, 1 Vet. App. 334 (1991). The Veteran has competently and credibly reported that he has frequent episodes of locking of his left knee. Layno, 6 Vet. App. 465; Barr, 21 Vet. App. at 308. He has consistently reported this to VA examiners and health care providers, as well as testifying about it at his February 2015 hearing. The Board finds that the Veteran has frequent episodes of locking. However, the most probative evidence does not show that the Veteran has frequent effusion into the joint. At his January 2009 VA examination, the examiner concluded that there was no effusion. At a September 2009 VA orthopedic consult, the physician noted that the Veteran "...certainly does not have ...any effusions at this point in time." At his August 2011 VA examination, the examiner found that the Veteran's left knee did not have warmth or swelling. A May 2012 VA treatment record notes that the Veteran had a "scant" left knee effusion. At his August 2012 VA examination, the examiner noted a September 2011 x-ray which showed a "question of small joint effusion," but did not note that one was ever diagnosed. The medical evidence does not show that the Veteran has frequent effusion into the joint. The Veteran reported swelling to his VA health care providers, and he is competent to report it as an observable symptom. Layno, 6 Vet. App. 465. His assertion is also credible. Barr, 21 Vet. App. at 308. However, he has not asserted that he has frequent effusion. Instead, he and his representative argue that a 20 percent rating should be granted under Diagnostic Code 5258 for frequent episodes of locking. However, because the preponderance of the evidence shows that Veteran does not have frequent effusion into the joint, all criteria for a 20 percent evaluation under Diagnostic Code 5258 have not been met. Melson, 1 Vet. App. 334. Application of Diagnostic Code 5258 is not warranted. The Veteran has not had meniscus surgery. Therefore, Diagnostic Code 5259, symptomatic removal of the semilunar cartilage, is not applicable. 38 C.F.R. § 4.71a (2014). As for other potentially applicable Diagnostic Codes, the Veteran's knee has never been ankylosed, there is no malunion or nonunion of the tibia and fibula, and there is no genu recurvatum. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263 (2014); see also VAOPGCPREC 23-97, 62 Fed. Reg. 63604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56704 (1998). Accordingly, application of these Diagnostic Codes is unwarranted. See Butts v. Brown, 5 Vet. App. 532 (1993) (choice of Diagnostic Code should be upheld if supported by explanation and evidence). In conclusion, even when considering functional limitations due to pain and other factors identified in 38 C.F.R. §§ 4.40, 4.45, the Board finds that the Veteran's functional loss from his left knee disability does not equate to more than the disability picture contemplated by the 10 percent rating already assigned under Diagnostic Code 5260. 38 C.F.R. § 4.7 (2014). Therefore, the preponderance of the evidence is against this claim, and it must be denied. 38 C.F.R. § 4.3 (2014). However, a separate 10 percent rating is granted for slight instability of the left knee under Diagnostic Code 5257. 38 C.F.R. § 4.71a (2014). There is no evidence of exceptional or unusual circumstances to warrant remand to refer this claim for extraschedular consideration. 38 C.F.R. § 3.321(b)(1) (2014). The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Therefore, there must be a comparison between the level of severity and the symptomatology of the Veteran's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is adequate, and no referral to the Director of the Compensation Service for consideration of an extraschedular rating is required. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). As described above, the manifestations of the Veteran's left knee disability are contemplated by the schedular criteria set forth in Diagnostic Codes 5257, 5258, and 5620. As discussed above, the Veteran's meniscal symptoms do not satisfy the criteria for a 20 percent rating under Diagnostic Code 5258, however his reports of frequent episodes of locking are contemplated by the schedular criteria. The Veteran has also reported use of assistive devices. However, his use of braces and a cane is for relief of instability, a symptom for which a separate rating has been assigned. Finally, he has asserted that he has insomnia as a result of his knee pain. As noted above, a claim for service connection for insomnia secondary to his service-connected left knee disability has been referred to the AOJ for initial consideration. The criteria practicably represent the average impairment in earning capacity resulting from the Veteran's service-connected left knee disability, such that he is adequately compensated for "considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." See 38 C.F.R. § 4.1 (2014). Further, no examiner has reported an exceptional disability picture with symptoms not represented in the rating schedule. In sum, there is no indication that the average industrial impairment from the disability would be in excess of that contemplated by the assigned rating. Accordingly, the Board has determined that remand for referral of this case for extraschedular consideration is not in order. Finally, the Board notes that under Johnson v. McDonald, 762 F. 3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected symptoms experienced. However, in this case, after applying the benefit of the doubt under Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional service-connected symptoms that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple service-connected conditions. ORDER A disability rating in excess of 10 percent for arthritis of the left knee is denied. A separate 10 percent disability rating for instability of the left knee is granted. REMAND Additional development is required before the Board may adjudicate the Veteran's TDIU claim. Accordingly, the case is REMANDED for the following action: After conducting any necessary development, adjudicate of the claim of entitlement to TDIU. If the Veteran's service-connected disabilities do not meet the rating criteria under 38 C.F.R. § 4.16(a), but they prevent him from securing or following a substantially gainful occupation, refer the claim to the Director, Compensation Service, for consideration on the issue of entitlement to TDIU on an extraschedular basis, pursuant to 38 C.F.R. § 4.16(b). The Veteran has the right to submit additional evidence and argument on the matter or 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 2014). ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs