Citation Nr: 1600201 Decision Date: 01/05/16 Archive Date: 01/12/16 DOCKET NO. 08-38 870 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an increased rating for residuals of a right shoulder injury, including post-operative rotator cuff repair with acromioplasty, currently evaluated as 20 percent disabling. 2. Entitlement to an increased rating for residuals of a left shoulder injury, currently evaluated as 20 percent disabling. 3. Entitlement to an increased rating for status post-surgical repair, bony exostosis, right anterior tibial tubercle (right knee), currently evaluated as 10 percent disabling. 4. Entitlement to a total rating for compensation based upon individual unemployability due to service-connected disabilities (TDIU). 5. Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from October 1972 to November 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2004 (shoulders), April 2008 (TDIU) and April 2009 (right knee) rating decisions of the Department of Veterans' Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The RO issued a rating decision in April 2005 that reduced the Veteran's left shoulder VA disability rating from 20 to 10 percent. In February 2011 the Board issued a decision finding that the reduction was improper and the 20 percent rating was restored. In November 2009, a hearing was held before a Veterans Law Judge (VLJ) who is no longer employed by the Board. In November 2015, VA wrote to the Veteran informing him of this fact and that he could have another hearing before a VLJ if he so chose. The Veteran wrote back that he did not wish to have another hearing. In September 2011, a second hearing was held before the undersigned Veterans Law Judge. Copies of the November 2009 and September 2011 hearing transcripts are of record. Due to the fact that the VLJ who conducted the November 2009 hearing is no longer employed at the Board, there remains only one VLJ who has taken testimony concerning the Veteran's appeal that is available to sign the current decision. Consequently, a panel is no longer needed and this decision will only be signed by the VLJ who presided at the September 2011 hearing. At the November 2009 hearing, the Veteran indicated that he desired to withdraw his appeal regarding a claim for a higher evaluation for erectile dysfunction. Therefore that claim is no longer in appellate status before the Board. Additional VA treatment records added to the Veterans Benefits Management System (VBMS) file subsequent to the April 2013 supplemental statement of the case (SSOC) were either of record prior to April 2013 or are not relevant to the claims decided below. The issue of entitlement to service connection for sleep apnea and the issue of entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran has range of the right arm to shoulder level. 2. The Veteran does not have nonunion, fibrous union or loss of the head of the left humerus. 3. The Veteran has full extension of the right knee and 120 degrees or more of flexion of the right knee. 4. The Veteran has slight instability of the right knee. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for residuals of a right shoulder injury, including post-operative rotator cuff repair with acromioplasty, have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.40, 4.45, 4.71a, 4.118, Diagnostic Codes 5200-5203 (2015). 2. The criteria for a rating in excess of 20 percent for residuals of a left shoulder injury have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5200-5203 (2015). 3. The criteria for a rating in excess of 10 percent for painful flexion due to status post, surgical repair, bony exostosis, right anterior tibial tubercle (right knee), have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2015). 4. The criteria for a separate 10 percent rating for instability due to status post, surgical repair, bony exostosis, right anterior tibial tubercle (right knee), have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, the United States Department of Veterans Affairs has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). In June 2004 and March 2009 letters, the RO advised the Veteran of the VCAA, including the types of evidence and/or information necessary to substantiate his claims and the relative duties upon himself and VA in developing his claims. Quartuccio v. Principi, 16 Vet. App. 183 (2002). An August 2008 letter, as well as the August 2007 and March 2009 letters noted above, advised him of the bases for assigning ratings. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). An August 2007 letter, which informed the Veteran of how he could substantiate his claim for an increased rating on the basis of TDIU, also informed him of how ratings and effective dates are assigned. As to the duty to assist, VA has associated with the claims folder the Veteran's service treatment records, VA treatment records, and Social Security Administration (SSA) medical records. The Veteran has been provided VA medical examinations. The Veteran has provided testimony at two hearings. During the hearings, the VLJs enumerated the issues on appeal. Information was obtained regarding severity of the Veteran's shoulder and knee disabilities. At the September 2011 hearing it was determined that all the Veteran's medical treatment is through VA. The Veteran has not asserted that there was any prejudice with regard to the conduct of either hearing. As such, the Board finds that, consistent with Bryant v. Shinseki, 23 Vet. App. 488 (2010), the duties set forth in 38 C.F.R. 3.103(c)(2) were met. The Veteran has been accorded ample opportunity to present evidence and argument in support of the appeal and he has done so. In September 2012 decisions, the Board remanded the Veteran's shoulder and right knee claims for further development, to specifically include obtaining updated VA treatment records and VA medical examinations. The Board has reviewed the development conducted by the AOJ and finds that it has satisfied the Board's remand orders. The Veteran's updated VA treatment records were obtained and the Veteran was provided appropriate VA medical examinations. Thus, there has been substantial compliance with the Board's remand orders. In sum, the Board is satisfied that the originating agency properly processed the Veteran's claims after providing the required notice and that any procedural errors in the development and consideration of the claims by the originating agency were insignificant and non-prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Shoulders A March 1993 rating decision granted the Veteran service connection and 20 percent ratings for his right and left shoulder disabilities. In May 2004, the Veteran submitted his claim for ratings in excess of 20 percent for each of his shoulder disabilities. The medical evidence of record reveals that the Veteran is right hand dominant. The Veteran testified in November 2009 that he had pain and popping with movement of the shoulders. He reported that he could not pick up anything that weighed more than a gallon of milk, and reported that he had pain when picking up a gallon of milk. VA examinations dated from August 2004 have shown that the Veteran complains of bilateral shoulder pain. In September 2007 the Veteran reported frequent crepitus with range of motion activities involving the shoulders. Examination at that time revealed no swelling, tenderness or deformity of either shoulder. There was no evidence of laxity with stress testing of either shoulder. An April 2011 VA examination revealed the Veteran to have full motor strength of the shoulders. There was absolutely no atrophy or deformity of the shoulders other than a scar. A December 2012 VA examiner noted that the Veteran had full strength of the shoulders, had no ankylosis, and had no history of recurrent subluxation. Diagnostic Code 5201 provides that limitation of motion of the arm at the shoulder level is rated 20 percent for the major shoulder and 20 percent for the minor shoulder; limitation of motion of the arm midway between the side and shoulder level is rated as 30 percent for the major shoulder and 20 percent for the minor shoulder; limitation of motion of the arm to 25 degrees from the side is rated as 40 percent for the major shoulder and 30 percent for the minor shoulder. 38 C.F.R. § 4.71a, DC 5201. The regulations define normal range of motion for the shoulder as forward flexion from zero to 180 degrees, abduction from zero to 180 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees. 38 C.F.R. § 4.71, Plate I (2015). With forward elevation (flexion) and abduction, range of motion for the arm is from the side of the body (zero degrees) to above the head (180 degrees) with the mid-point of 90 degrees where the arm is held straight out from the shoulder. In general, evaluation of a service-connected disability involving a joint requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). It is noted that the Veteran's left shoulder disability is evaluated analogous to impairment of the humeral head, or malunion of the humerus under Diagnostic Code 5202. In the October 2004 rating decision the RO determined that a continued 20 percent evaluation was warranted for episodes of dislocation of the scapulohumeral joint with guarding of arm movements at the shoulder level. The Veteran reported during the December 2004 examination that he had not had dislocations of the left shoulder after the 1970s but did have difficulty when he tried to lift heavy objects with his left arm and some discomfort and popping with motion of the left shoulder. The September 2008 examiner noted that the Veteran developed some tremulousness of the left arm when testing forward elevation against resistance. During the 2011 examination, the Veteran reported that his left arm pain increased when lifting the arm above shoulder level. The Veteran's non-dominant shoulder is assigned a 20 percent evaluation which contemplates recurrent dislocation of the scapulohumeral joint with frequent episodes and guarding of all arm movements, as well as infrequent episodes and guarding of movement only at shoulder level. Higher evaluations require fibrous union of the humerus, nonunion of the humerus, or loss of head of the humerus. As none of these manifestations are shown by the evidence, a higher rating is not warranted under these criteria. The right shoulder disability is rated pursuant to Diagnostic Code 5201. By way of a June 2002 rating decision, the RO found that the disability manifested by limitation of arm motion midway between the side and shoulder level. The Board finds that the Veteran is not entitled to a rating in excess of 20 percent under Diagnostic Code 5201 for the right shoulder because the evidence does not show that the Veteran's right shoulder disability results in limitation of motion of the right arm to midway between the side and shoulder. On VA examination in August 2004 the Veteran's left shoulder flexion was to 120 degrees (above shoulder level) and abduction was to 90 degrees. His right shoulder flexion was to 90 degrees (shoulder level) and abduction was to 90 degrees. The Veteran had pain on the extremes of right shoulder motion and minimal left shoulder pain with motion. A December 2004 VA examination revealed that the Veteran had 145 degrees of left shoulder flexion. The Veteran complained of pain with motion, particularly after the shoulder was elevated. In September 2007 a VA examiner noted that the Veteran had 90 degrees of right shoulder flexion and 160 degrees of left shoulder flexion, with pain at the extremes of range of motion. He could abduct the right shoulder to 90 degrees and the left shoulder to 100 degrees. On VA examination in September 2008 the Veteran had 120 degrees or right shoulder flexion with pain beginning at 100 degrees. He had 120 degrees of left shoulder flexion. Right shoulder abduction was to 110 degrees and left shoulder abduction was to 135 degrees. A July 2009 SSA record indicates that the Veteran had forward elevation of the right shoulder to 120 degrees and of the left shoulder to 150 degrees. VA examination in April 2011 revealed the Veteran to have 165 degrees of forward flexion and abduction bilaterally, with pain beginning at 90 degrees (shoulder level). In December 2012, a VA examiner found that the Veteran had 140 degrees of flexion in both shoulders, with painful motion in each shoulder beginning at 90 degrees. He had abduction bilaterally to 130 degrees with pain beginning at 110 degrees. These ranges of motion do not warrant a 30 percent rating for the right shoulder as limitation to 25 degrees from the side is not shown. Moreover, a separate rating for the left shoulder limitation of motion is not warranted as the currently assigned rating pursuant to Diagnostic Code 5202 contemplates guarding of all arm movements. As the Veteran's guarding of arm movements contemplates limitation of motion, to assign a separate rating for limitation of motion would constitute impermissible pyramiding. Even with consideration of DeLuca factors the Veteran's range of motion of the shoulders does not result in limitation such that the Veteran would be entitled to a rating in excess of 20 percent for either shoulder. In December 2012, while the Veteran reported flare-ups of pain bilaterally with use, repetitive testing revealed the Veteran to have increased range of motion of both shoulders on flexion compared to before the repetitions. The examiner noted the Veteran had less movement than normal and painful movement bilaterally and weakened movement on the right. Repetitive motion testing in April 2011 revealed no additional limitation of functional ability and there was no demonstrable weakness or fatigability of the shoulders. The September 2008 VA examiner noted that there was no additional limitation of motion demonstrated following repetitive use. He noted that the Veteran did not have flare-ups, but rather chronic daily symptoms. He also noted that the Veteran had no change in range of motion due to pain, spasm, tenderness, or fatigue after three repetitions. At the September 2007 VA examination the Veteran reported shoulder flare-ups, but denied any additional weakness or restricted range of motion of the shoulders during flare-ups. The examiner noted that there was no additional weakness, fatigability, incoordination, additional loss of range of motion, or functional impairment following repetitive stress testing of either shoulder. It is noted that a lay statement from B.P. from November 2007 indicates that the Veteran complained of not being able to lift or raise his arms because of popping/locking sensation in the shoulders. However, the Board finds most probative the medical findings on the multiple VA examinations. The Veteran reported flare-ups on use, however, repetitive use testing has not shown that there is additional functional limitation such that he has right arm range of motion limited to midway between the side and shoulder, or left arm range of motion limited to 25 degrees from the side so as to warrant ratings in excess of 20 percent under Diagnostic Code 5201. Accordingly, the currently assigned ratings contemplate the Veteran's functional limitations. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran has not been shown to have ankylosis, accordingly evaluation under Diagnostic Code 5200 is not warranted. The Veteran has not been shown to have impairment of the clavicle or scapula resulting in malunion, nonunion or dislocation. Consequently the Veteran is not entitled to a compensable rating under Diagnostic Code 5203. In addition, the VA examiner in 2012 evaluated the Veteran for any neurological manifestations of the service-connected disabilities. The examiner found that there was normal motor strength bilaterally as well as sensation and present deep tendon reflexes. The examiner opined that there was no evidence of nerve involvement with respect to either shoulder. Accordingly, a separate evaluation under the diagnostic codes pertaining to neurological disorders is not warranted. Regarding extraschedular evaluation, the manifestations of his bilateral shoulder disabilities are contemplated by the scheduler criteria as was discussed above. The criteria contemplate limitation of motion and recurrent dislocation although such has not been shown during the pendency of the claim. The April 2011 VA examiner noted that the functional limitation was that the Veteran would be limited to activities below the shoulder level. Based on a review of the entire evidence of record, the Board is of the opinion that the disability picture presented by the Veteran's service-connected right and left shoulder disabilities, including pain and limitation of motion, is appropriately contemplated by the Rating Schedule. Therefore, referral for consideration of an extraschedular evaluation is not warranted. See Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board has considered the Veteran's right shoulder scar associated with his January 2002 right shoulder surgery. The Board notes that the criteria for rating scars were revised, effective October 23, 2008. See 73 Fed. Reg. 54,708 (Sept. 23, 2008) (codified at 38 C.F.R. § 4.118 , DCs 7800 to 7805). The amendments are only effective, however, for claims filed on or after October 23, 2008. Under the prior criteria, in order to warrant a compensable rating the evidence must show: scars, other than on the head, face, or neck, that are deep or that cause limited motion in an area or areas exceeding 6 sq. in. (39 sq. cm.) (10 percent disabling under Diagnostic Code 7801); scars, other than on the head, face, or neck, that are superficial and that do not cause limited motion with an area or areas exceeding 144 square inches (929 sq. cm.) (10 percent disabling under Diagnostic Code 7802); scars, superficial and unstable (i.e. frequent loss of the skin covering the scar) (10 percent disabling under Diagnostic Code 7803); or scars, superficial, that are painful upon examination (10 percent disabling under DC 7804). In this case, the Veteran's residual scar, is not of sufficient size to warrant compensable rating under Diagnostic Codes 7801 or 7802. The right shoulder scar is linear and 11cm long. The December 2012 VA examination report specifically states that the right shoulder scar covers an area of less than 39 sq. cm. The evidence also does not indicate that the right shoulder scar is unstable or painful upon examination. Overall, the medical evidence does not reflect, nor has the Veteran reported, that the scar is unstable in that he has frequent loss of skin covering the scar. Moreover, the evidence does not show that the Veteran's residual scar has caused any functional limitation of his right shoulder. Therefore, given the small size of the scar, and given the fact the scar has not been shown to be either unstable or painful upon examination, the criteria for rating scars are not applicable in this case. Because the Veteran has not met the criteria for a rating in excess of 20 percent for either shoulder disability, at any time during the appeal period, a staged rating in excess of 20 percent for either shoulder disability is not for assignment. See Hart v. Mansfield, 21 Vet. App. 505 (2007). III. Right Knee A March 1993 rating decision granted the Veteran service connection and 10 percent rating for his right knee disability. The Veteran underwent right knee surgery in June 2004 in which a painful bony exostosis was excised. By rating decision in October 2004, the Veteran's right knee disability was recharacterized as status post-surgical repair, bony exostosis, right anterior tibial tubercle (right knee). After a temporary total rating for convalescence, the right knee rating was returned to 10 percent, analogously under DC 5099-5015. An August 2008 rating decision, pursuant to an April 2008 Board decision, granted the Veteran a separate 10 percent rating for right lower extremity numbness. This rating decision, also pursuant to the April 2008 Board decision, recharacterized the Veteran's 10 percent for his right knee disability from DC 5015 to DC 5257 (instability). An April 2013 rating decision granted the Veteran a separate noncompensable rating for right knee scar. This rating decision also recharacterized the Veteran's 10 percent for his right knee disability from DC 5257 to DC 5260 (limitation of flexion). The Veteran has not disagreed with the separate rating assigned for the right knee scar. DC 5015 refers to new, benign growths of bones, and it is found in the rating criteria for musculoskeletal disabilities at 38 C.F.R. § 4.71a. The note following the code indicates that it will be rated based on limitation of motion of the affected parts, which in this case is the knee and leg. The limitation of motion codes referable to the knee and leg are found at 38 C.F.R. § 4.71a, DCs 5256, 5260, 5261. DC 5256 rates based on the presence of ankylosis, or immobility of the joint. As the veteran has movement in his knee joint, this code is inapplicable. Under DC 5260, when flexion of the leg is limited to 60 degrees, a noncompensable rating is warranted. When flexion is limited to 45 degrees, a 10 percent rating is warranted. Flexion limited to 30 degrees warrants a 20 percent rating, while flexion limited to 15 degrees warrants the maximum 30 percent rating. DC 5261 rates based on limitation of extension. That code provides that when extension is limited to 5 degrees, a noncompensable rating is warranted. Extension limited to 10 degrees warrants a 10 percent rating. When limitation of extension is at 15 degrees, a 20 percent rating is warranted. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to more than 20 degrees warrants higher still ratings. As noted above, the Veteran currently has a 10 percent rating for his right knee under DC 5260, the code for limitation of flexion of the knee. The Board finds that the Veteran is not entitled to a rating in excess of 10 percent under DC because he has not been shown to have right knee flexion limited to 30 degrees or less. VA examination in April 2009 revealed that the Veteran had 120 degrees of right knee flexion. He was noted to have pain on motion. The examiner noted that the Veteran had chronic pain and that functional impairment was that the Veteran was unable to squat, kneel, climb, or be on his feet for long periods of time because of the right knee. There was no additional limitation of flexion with repetitive testing. On VA examination in December 2012 the Veteran had full (140 degrees or greater) flexion of the right knee without pain. There was no additional limitation of flexion with repetitive testing. Functional impairment included swelling and instability of station. The Veteran reported flare-ups of pain and the knee going out. The December 2012 VA examiner noted that the Veteran did not have degenerative arthritis of the right knee. Even with consideration of DeLuca factors including flare-ups, the Veteran has full, or almost full range of motion of the right knee, with no additional limitation of motion shown on repetitive use testing, and is thus not entitled to a rating in excess of 10 percent for limitation of flexion of the right knee. The Veteran's limitation of motion is fully contemplated by the currently assigned 10 percent rating for limitation of flexion. The Board notes that even though the Veteran does not have arthritis of the right knee and does not have limitation of flexion of the right knee that is to the extent compensable under DC 5260, the current 10 percent rating under DC 5260 is appropriate. This is because the Veteran was shown to have painful motion of the right knee due to his right knee disability on VA examination in April 2009. See Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Although the December 2012 VA examination indicated that there was no objective evidence of painful motion, the Board finds the Veteran's complaints of pain on motion of the right knee to be credible, competent and probative and contemplated by the currently assigned rating for limitation of motion. The Veteran is not entitled to a separate compensable rating based on DC 5261. Both the April 2009 and the December 2012 VA examinations revealed that the Veteran had full extension of the right knee, with no limitation of extension after repetitive motion testing. The criteria for disabilities of the knee and leg also provide for ratings based on other impairment of the knee. In particular, DC 5257 rates based on recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. Slight impairment is assigned a 10 percent rating, moderate impairment a 20 percent rating, and severe impairment a 30 percent rating. Although the April 2009 VA examiner did not find the Veteran to have instability of the right knee, the December 2012 VA examiner indicated that the Veteran had 1+ (slight) anterior instability of the right knee. As this is a manifestation of the service-connected disability that is not contemplated by the currently assigned rating, the Veteran is entitled to a separate 10 percent rating under DC 5257 for slight instability of the right knee. Given that the April 2009 VA examiner found no instability of the right knee, and that the December 2012 VA examiner stated that the right knee had no more than 1+ anterior instability, the weight of the evidence indicates that the Veteran's right knee instability is no more than slight in nature and the criteria for a rating in excess of 10 percent under DC 5257 has not been met. This rating contemplates the Veteran's reports of his knee giving way, which are found to be competent, credible and probative. However, the most probative evidence as to the severity thereof is the medical finding of no more than slight instability which was found on testing conducted to determine whether there was instability and if so the severity thereof. Consequently the Veteran is entitled to a separate 10 percent rating, but no higher, for instability of the right knee under DC 5257. Regarding other potentially applicable diagnostic codes, a December 2004 VA examination report indicates that the Veteran has a tear in the medial meniscus. DC 5258 states that semilunar cartilage (that of the meniscus) which is dislocated (torn), with frequent episodes of "locking," pain, and effusion into the joint, warrants a 20 percent rating. There is evidence of pain, as well as occasional subjective complaints of swelling; however, x-rays of record do not reveal effusion into the joint. Nor has the Veteran referred to locking type episodes. Therefore, an additional rating based on DC 5258 is not warranted. A rating under DC 5259 is also not appropriate because the record does not indicate that the Veteran has had removal of the semilunar cartilage. Higher ratings in the knee and leg criteria are provided when there is malunion or nonunion of the tibia and fibula. The evidence does not demonstrate such defect in this Veteran's case. Therefore, an additional rating based on DC 5262 is not warranted. In this appeal, there has been no showing that the Veteran's right knee disability picture is not contemplated adequately by the applicable schedular rating criteria discussed above. Those criteria provide for higher ratings, but as has been explained herein, the currently assigned ratings for the right knee adequately describe the severity of the Veteran's right knee symptoms of pain, limitation of motion, and instability. The Veteran's symptoms, including pain, giving way and swelling, ultimately result in limitation of motion and instability, which are contemplated by the schedular criteria. Given that the applicable schedular rating criteria are adequate, the Board need not consider whether the Veteran's disability picture includes such exceptional factors as periods of hospitalization and interference with employment, which, in any event, have not been documented. Referral for consideration of the assignment of a disability rating for the right knee on an extraschedular basis, therefore, is not warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). Finally, 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 disabilities experienced. Johnson v. McDonald, 762 F.3d 1362 (2014). The Veteran has not alleged that his currently service-connected disabilities combine to result in additional disability or symptomatology that is not already contemplated by the rating criteria for each individual disability. Further, there is no medical evidence indicating that the Veteran's right knee or bilateral shoulder disabilities combine or interact with his other service-connected disabilities (i.e., depressive disorder, right lower extremity numbness, hypertension, erectile dysfunction or scars) in such a way as to result in further disabilities, functional impairment, or additional symptomatology not accounted for by the rating criteria applicable to each disability individually. 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 conditions. ORDER Entitlement to a rating in excess of 20 percent for residuals of a right shoulder injury, including post-operative rotator cuff repair with acromioplasty, is denied. Entitlement to a rating in excess of 20 percent for residuals of a left shoulder injury is denied. Entitlement to a rating in excess of 10 percent for status post-surgical repair, bony exostosis, right anterior tibial tubercle (right knee) based on painful limitation of flexion is denied. Entitlement to a separate 10 percent rating for status post-surgical repair, bony exostosis, right anterior tibial tubercle (right knee) with instability, is granted, subject to the law and regulations regarding the award of monetary benefits. REMAND In September 2015, the Veteran submitted a notice of disagreement (NOD) with respect to a September 2015 rating decision which denied service connection for sleep apnea. The Veteran has not been issued a statement of the case (SOC) on this matter. The current lack of a statement of the case regarding this claim is a procedural defect requiring remand. See Manlincon v. West, 12 Vet. App. 238 (1999). In July 2013, the AOJ issued an SSOC denying the Veteran's claim for TDIU. Unfortunately this SSOC clearly shows that the AOJ did not consider that the Veteran had recently been granted service connection and a 30 percent rating for a depressive disorder. Consequently, due process requires that the Veteran's TDIU claim be returned to the AOJ for consideration of all of the Veteran's service-connected disabilities. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran a statement of the case that addresses the issue of entitlement to service connection for sleep apnea. The Veteran and his representative should be provided notice of the Veteran's right to file a substantive appeal. This claim should be returned to the Board only if the Veteran perfects his appeal by filing a timely substantive appeal. 2. Readjudicate the TDIU matter and, if the matter remains denied, issue a supplemental statement of the case, which addresses whether the Veteran is entitled to TDIU taking into consideration all of his service-connected disabilities, including his recently service-connected depressive disorder. Then afford the Veteran the requisite opportunity to respond before the claims folder is returned to the Board for further appellate action. The appellant 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). ______________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs