Citation Nr: 1603183 Decision Date: 02/01/16 Archive Date: 02/11/16 DOCKET NO. 09-39 463 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an increased rating for posttraumatic arthritis of the left knee, status post meniscectomy, currently evaluated as 10 percent disabling. 2. Entitlement to an increased rating for posttraumatic arthritis of the right knee, status post meniscectomy, currently evaluated as 10 percent disabling. 3 Entitlement to an increased rating for instability of the left knee, currently evaluated as 10 percent disabling. 4. Entitlement to a separate disability rating for instability of the right knee. 5. Entitlement to a total disability rating for individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and D.L. ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran served on active duty from October 1979 to October 1983. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In July 2013 and April 2015, the Board remanded the claims on appeal to the Agency of Original Jurisdiction for additional development. This appeal was processed electronically using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. Throughout the period of appeal, the Veteran experienced frequent episodes of "locking," pain, and effusion into both knee joints due to prior meniscectomies. 2. Throughout the period of appeal, flexion of the Veteran's left knee was limited, at most, to 100 degrees with consideration of pain; extension was limited, at most, to 0 degrees with consideration of pain; mild instability was also demonstrated. 3. Throughout the period of appeal, flexion of the Veteran's right knee was limited, at most, to 100 degrees with consideration of pain; extension was limited, at most, to 0 degrees with consideration of pain; mild instability was also demonstrated. CONCLUSIONS OF LAW 1. Throughout the period of appeal, a 20 percent disability rating is warranted for dislocated semilunar cartilage of the left knee, with frequent episodes of "locking," pain, and effusion into the joint. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5258, 5259 (2015). 2. Throughout the period of appeal, a 20 percent disability rating is warranted for dislocated semilunar cartilage of the right knee, with frequent episodes of "locking," pain, and effusion into the joint. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5258, 5259 (2015). 3. Throughout the period of appeal, a disability rating in excess of 10 percent on the basis of instability for the left knee is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5257, 5260, 5261 (2015). 4. Throughout the period of appeal, a separate disability rating of 10 percent on the basis of instability for the right knee is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5257, 5260, 5261 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duty to Notify & Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that the notice requirements have been satisfied. With regard to the Veteran's claim for a higher rating, the Veteran received sufficient Veterans Claims Assistance Act of 2000 (VCAA) notice prior to the initial adjudication of the claim, thereby satisfying the VA's duty to notify in this case. See the March 2006 and May 2007 VCAA letters; Dingess, supra. The Board concludes that the duty to assist has been satisfied. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's service treatment records, post service VA treatment records and lay statements are in the file. During the appeal period, the Veteran underwent VA examination in to assess the current severity of her service-connected knee disorders. The VA examinations are adequate, as they were predicated on a review of the Veteran's medical records, an interview of the Veteran, and examination findings supported by a complete rationale for the opinions stated. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4). In light of the foregoing, the Board finds that VA has provided the Veteran with every opportunity to submit evidence and arguments in support of her appeal. The Veteran has not identified any outstanding evidence that needs to be obtained. Additionally, in light of the VA compensation and pension examination findings, the additional adjudications performed by the AOJ, and the Veteran's November2015 Board hearing, the Board finds substantial compliance with the prior remand directives. The Veteran had a VA Videoconference Board Hearing in November 2015 before the undersigned Veterans Law Judge (VLJ). During the hearing, the VLJ engaged in an appropriate discussion with the Veteran on the issues, including the evidence needed to substantiate her claims. The Veteran did not indicate that she had more evidence to submit, other than evidence that was already of record. Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Board finds the due process requirements of 38 C.F.R. § 3.103(c) have been satisfied. Id. at 496-97. The Veteran has not alleged any prejudicial deficiencies in the conduct of the hearing. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). For the above reasons, the Board finds that VA has fulfilled its duty to notify and assist the Veteran. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the claim. II. Increased Rating Claims A. Law and Regulations Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2014). Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2015). The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2015). VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath, 1 Vet. App. at 589. The Veteran's entire history is to be considered when making disability evaluations. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2015). B. Bilateral Knees Service connection for left and right knee disabilities was established by means of an April 1984 rating decision. The current claim for increased ratings was filed in June 2009. An MRI of the left knee taken in July 2006 reflected results consistent with status-post extensive medial menisectomy. There was a tear of the small residual component of the medial meniscus. On VA compensation and pension examination in August 2006, it was noted that the Veteran had medical meniscectomies of both knees while she was on active duty. She experienced pain, stiffness, swelling, giving way, and locking of the bilateral knees. Bilateral knee flexion was to 120 degrees, and bilateral knee extension was to 0 degrees with pain. There was no ankylosis. Mild anterior instability of the left knee was observed. In December 2006, a VA treatment provider found that the Veteran had a full range of motion of both knees. In January and February2008, a VA treatment provider found that the Veteran's right knee had a range of motion from 0 to 100 degrees. No instability was found. Another VA treatment record from February 2008 reflects the presence of some instability in the right knee. An MRI of the right knee taken in February 2008 revealed a diminutive medial meniscus consistent with menisectomy. A physical rehabilitation record from June 2008 reflects that the Veteran had a full range of motion of both knees with crepitation. No laxity was noted. On VA compensation and pension examination in November 2008, it was noted that the Veteran needed braces to walk. Instability of both knees was observed. Pain and stiffness were noted. There were no episodes of dislocation or subluxation of either knee. Severe daily flare-ups of both knees were reported. Right knee flexion was to 110 degrees with pain. Right knee extension was to 0 degrees with pain. Left knee flexion was to 115 degrees with pain. Left knee extension was to 0 degrees with pain. No ankylosis was present. In November 2009, a VA examiner found that the Veteran's right knee had a range of motion from 0 to 130 degrees with pain. The right knee was stable to varus and valgus stress. A May2010 VA treatment note contains a range of motion finding of 0 to 100 degrees for the right knee. No laxity was found. In July 2010, the Veteran was treated at a VA facility for right knee pain. She rated her pain as 10 on a 0 (low) to 10 (high) pain scale. She was only able to walk approximately four blocks due to pain. She had previously received cortisone injections in her bilateral knees. The examiner indicated that flexion and extension were limited by pain to an unspecified extent. No joint laxity was found. VA treatment records from August, September, and October 2010 documents the Veteran's long history of knee pain. She had a history of intermittent swelling and severe knee pain that responded to Motrin. She also had a steroid injection. It was further noted that she had a full range of motion and medial lateral instability in the right knee. She used a hinged knee brace. On VA examination in October 2010, the Veteran reported having difficulty sleeping due to knee pain. Pain and stiffness were found in each knee. No instability or giving way or either knee was observed. Severe flare-ups occurred two to three times per week. The examiner found no meniscus abnormality of the left knee, but the meniscus had been removed from the right knee. Right knee flexion was to 100 degrees. Right knee extension was to 0 degrees. Left knee flexion was to 100 degrees. Left knee extension was to 0 degrees. There was objective evidence of pain following repetitive motion of both knees. No joint ankylosis was found. An MRI revealed a tear of the medial meniscus of the left knee. On VA compensation and pension examination in September 2013, the Veteran reported that dampness and cold weather aggravated the pain in her knees. Right knee flexion was to 120 degrees with no objective evidence of painful motion. Right knee extension was to 0 degrees with no objective evidence of painful motion. Left knee flexion was to 120 degrees with no objective evidence of painful motion. Left knee extension was to 0 degrees with no objective evidence of painful motion. Repetitive motion testing produced pain with no reduction in range of motion for either knee. Crepitus was present in both knees. Stability testing yielded normal results for both knees. There was no evidence of recurrent patellar subluxation or dislocation for either knee. It was noted that the Veteran had previously had a meniscectomy and a meniscal tear in the right knee. The examiner found that the Veteran occasionally used braces on both knees. There was no X-ray evidence of patellar subluxation. At her November 2015 Board hearing, the Veteran testified that she experienced knee pain that rated an eight or nine on a 0 (low) to 10 (high) pain scale in the mornings. She used two knee braces. She experienced extreme pain, and her knees stiffened in the cold. When her knees stiffened, she had very limited mobility. She could only walk for about seven to ten minutes. Her knees would make clicking, popping, and cracking noises. To begin the Board's analysis, it is noted that two Diagnostic Codes are applicable to disabilities involving the cartilage of the knees: Diagnostic Codes 5258 and 5259. Under Diagnostic Code 5258, Cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint warrants a 20 percent disability rating. This is the only disability rating available under Diagnostic Code 5258. 38 C.F.R. § 4.71a, Diagnostic Code 5258 (2015). Under Diagnostic Code 5259, cartilage, semilunar, removal of, symptomatic, warrants a 10 percent disability rating. This is the only disability rating available under Diagnostic Code 5259. 38 C.F.R. § 4.71a, Diagnostic Code 5259 (2015). The record clearly shows that the Veteran underwent bilateral meniscectomies while on active duty. The Veteran is currently in receipt of 10 percent disability ratings bilaterally under Diagnostic Code 5259. However, the evidence suggests that the cartilage of each knee was not entirely removed. Indeed, MRIs taken during the course of the appeal reveal that the Veteran has a partial meniscus in each knee. See MRI reports from July 2006, February 2008. Additionally, as reviewed above, the Veteran has experienced frequent episodes of locking, pain, and effusion in each knee throughout the period of appeal. As such, the Board finds that instead of the current 10 percent disability rating currently awarded under Diagnostic Code 5259 (removal of semilunar cartilage), the Veteran should be granted a 20 percent disability rating for each knee under Diagnostic Code 5258 (dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint). The Board additionally notes that a 20 percent disability rating is the maximum schedular rating available under Diagnostic Code 5258. The Veteran is not currently in receipt of a disability rating for either knee on the basis of limitation of motion. Diagnostic Code 5010, for arthritis, due to trauma, substantiated by X-ray findings, indicates that such disability is to be rated as arthritis, degenerative. 38 C.F.R. § 4.71a (2015). Diagnostic Code 5003 provides that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a (2015). When, however, limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is generally for application. 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 (2015). The general rating schedules for limitation of motion of the knee are 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5260, limitation of flexion of the knee is rated as follows: A 10 percent disability rating is assigned for flexion limited to 45 degrees; A 20 percent disability rating is assigned for flexion limited to 30 degrees; and A 30 percent disability rating is assigned for flexion limited to 15 degrees. Under Diagnostic Code 5261, limitation of extension of the knee is rated as follows: A 10 percent disability rating is warranted for extension limited to 10 degrees; A 20 percent disability rating is assigned for extension limited to 15 degrees; A 30 percent disability rating is assigned for extension limited to 20 degrees; A 40 percent disability rating is assigned for extension limited to 30 degrees; and A 50 percent disability rating is assigned for extension limited to 45 degrees. See 38 C.F.R. § 4.71a. In addition, separate ratings may be assigned for compensable limitation of both flexion and extension. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint). The VA General Counsel has held that a Veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257. See VAOPGCPREC 23-97 (1997); VAOPGCPREC 9-98 (1998). In VAOPGCPREC 9-98, the VA General Counsel further explained that when a Veteran has a knee disability evaluated under Diagnostic Code 5257, to warrant a separate rating for arthritis based on X-ray findings, the limitation of motion need not be compensable under Diagnostic Code 5260 or 5261; rather, such limited motion must at least meet the criteria for a zero-percent rating. 64 Fed. Reg. 52,376 (1999). A separate rating for arthritis (in addition to Diagnostic Code 5257) could instead be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). The Board also notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2009); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Concerning the left knee, the evidence reflects that flexion of the left knee was limited, at worst, to 100 degrees, with consideration of pain. For the right knee, the evidence reflects that flexion of the right knee was limited, at worst, to 100 degrees, with consideration of pain. The aforementioned flexion measurements are consistent with no more than a 0 percent (noncompensable) rating for either knee under Diagnostic Code 5260, for limitation of flexion. For the appeal period, the evidence reflects that extension of the left knee was limited, at worst, to 0 degrees, with consideration of pain. Extension of the right knee was limited, at worst, to 0 degrees, with consideration of pain. These findings do not meet the criteria for a compensable rating under Diagnostic Code 5261, for limitation of extension. The Board notes that the Veteran's functional loss was considered, in excess of that noted above, as the medical evidence shows that the Veteran has consistently complained of pain in both knees. 38 C.F.R. §§ 4.40, 4.45. However, the limitation of motion and functional loss documented in the medical records as resulting from pain, including flare-ups, is already contemplated in the disability ratings now currently assigned-in particular, in the increased 20 percent disability ratings that have been awarded on the basis of pain, effusion, and locking under Diagnostic Code 5258 as of this decision. Moreover, although the Veteran had pain on repetitive motion, that pain did not result in limitation of flexion or extension to the level that a separate or higher rating would be warranted. There is otherwise no evidence of additional significant impairment of motor skills, muscle function, or strength attributable to the Veteran's knee disabilities, beyond what is already being compensated. Consequently, the Board finds that a higher disability rating based on limitation of motion is not warranted for either knee, in excess of what was discussed above. The Veteran is currently in receipt of a separate 10 percent disability rating for the left knee under Diagnostic Code 5257, for instability. The Veteran is not currently in receipt of a disability rating for the right knee on the basis of instability. Diagnostic Code 5257 provides for the assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability of a knee; a 20 percent rating when there is moderate recurrent subluxation or lateral instability; and a 30 percent evaluation for severe knee impairment with recurrent subluxation or lateral instability. Id. Subluxation of the patella is "incomplete or partial dislocation of the knee cap." Rykhus v. Brown, 6 Vet. App. 354, 358 (1993) (citing Dorland's Illustrated Medical Dictionary at 1241, 1599 (27th edition 1988)). The Board observes that 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 (2015). The Board concludes that rating in excess of 10 percent under Diagnostic Code 5257 is not warranted at any time throughout the period of appeal for the left knee. On VA examination in August 2006, the examiner described the Veteran's instability of the left knee as "mild." A physical rehabilitation record from June 2008 reflects that the Veteran had no laxity of the left knee. Although a November 2008 VA examiner noted left knee instability, examiners in October 2010 and September 2013 found no instability of the left knee. Based on the Veteran's descriptions of her left knee giving way, balanced with the objective findings of the VA examiners, the Board finds that the instability of the left knee is best described as "slight," and thus warrants no higher than a 10 percent disability rating under Diagnostic Code 5257. However, instability has also been manifest in the right knee during the course of the appeal. Although numerous treatment providers found no laxity in the Veteran's right knee, the August 2006 VA examiner noted that the Veteran's right knee would give way, and a VA treatment record form February 2008 reflects the presence of some instability in the right knee. Additionally, the November 2008 VA examiner indicated that the Veteran's right knee was unstable. In light of this evidence, coupled with the Veteran's description of instability of her right knee, the Board finds that a separate disability rating of 10 percent is warranted under Diagnostic Code 5257 for slight instability of the right knee. A higher disability rating is not warranted under Diagnostic Code 5257, as moderate subluxation of the right knee has not been demonstrated. No higher or alternative rating under a different Diagnostic Code can be applied. The Board notes that there are other Diagnostic Codes relating to knee disorders, such as Diagnostic Code 5256 (ankylosis of the knee), Diagnostic code 5262 (impairment of the tibia and fibula), and Diagnostic Code 5263 (for genu recurvatum). The Veteran's bilateral knee disabilities are not manifested by nonunion or malunion of the tibia and fibula, or genu recurvatum. Ankylosis is "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). The Veteran is able to move both of his knees, albeit with some limitation of motion, so they are clearly not ankylosed. Moreover, the Board notes that the Veteran is being compensated for all her symptomatology under Diagnostic Codes 5257 and 5258 to include consideration of all the pertinent regulatory factors, such as functional loss. In evaluating the Veteran's claims for higher ratings, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disabilities is inadequate. A comparison between the level of severity and symptomatology of the Veteran's knee disabilities with the established criteria found in the rating schedule for these disabilities shows that the rating criteria reasonably describes the Veteran's disability levels and symptomatology, as discussed above. The Board further observes that, even if the available schedular evaluation for the disabilities are inadequate (which they manifestly are not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that the Veteran has required frequent hospitalizations for her bilateral knees. There is also no persuasive evidence in the record to indicate that the service-connected disability on appeal would cause any impairment with employment, such as "marked interference", over and above that which is already contemplated in the assigned schedular ratings. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Specifically, the schedular evaluations contemplate some degree of interference with employment. The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. According to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b)] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities. In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. In this case, there is neither allegation nor indication that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. ORDER A disability rating of 20 percent, but no higher, for posttraumatic arthritis of the left knee, status post meniscectomy, is granted, subject to the law and regulations governing the payment of VA compensation benefits. A disability rating of 20 percent, but no higher, for posttraumatic arthritis of the right knee, status post meniscectomy, is granted, subject to the law and regulations governing the payment of VA compensation benefits. A disability rating in excess of 10 percent for instability of the left knee is denied. A separate disability of 10 percent, but no higher, for instability of the right knee is granted, subject to the law and regulations governing the payment of VA compensation benefits. REMAND The Veteran has applied for a TDIU. For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Here, the record is not clear that the Veteran is unable to secure and follow a substantially gainful occupation. In this matter, the Board finds that completion of a Vocational Survey would be helpful in resolution of the claim for a TDIU. Accordingly, the case is REMANDED for the following action: 1. The RO must contact the Veteran and afford her the opportunity to identify or submit any additional pertinent evidence in support of her claims. Based on her response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of her response, the RO must obtain all outstanding VA treatment records. Any records obtained must be associated with the Veteran's electronic claims file. All attempts to secure this evidence must be documented in the electronic claims file by the RO. If, after making reasonable efforts to obtain the named records, the RO is unable to secure the same or determines that further efforts to obtain them would be futile, the RO must notify the Veteran and her representative in accordance with 38 C.F.R. § 3.159(e) (2015). The Veteran and her representative must then be given an adequate opportunity to respond. 2. Then, afford the Veteran a VA Social and Industrial Survey, to determine if it is at least as likely as not (a degree of probability of 50 percent or higher) that the Veteran's service-connected disabilities alone preclude her from obtaining and maintaining substantially gainful employment. The examiner should be provided a complete copy of the Veteran's claims file (to include any relevant records in Virtual VA and VBMS) and must review the file in connection with the examination. In making the requested determination, the Veteran's current age and nonservice-connected disabilities are not factors to be considered, but consideration may be given to the Veteran's education, special training, and previous work experience. A complete rationale for any opinion expressed must be provided, to include if an examiner determines an opinion cannot be provided without resort to speculation. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. Following completion of the above directives, review the claims file to ensure compliance with this remand. If an examination report does not include adequate responses to the specific opinions requested, it must be returned to the examiner for corrective action. 4. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO/AMC should readjudicate the claims on appeal in light of all pertinent evidence and legal authority. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran an appropriate SSOC that includes clear reasons and bases for all determinations and afford him an appropriate time period for response. 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). ______________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs