Citation Nr: 1804360 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 12-22 623 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to a rating in excess of 10 percent disabling for service connected bilateral knee arthritis from September 16, 2008 to June 2, 2010 and from September 1, 2010 to August 13, 2012 (following a period of temporary total disability from June 2, 2010 to September 1, 2010). 2. Entitlement to a compensable evaluation from August 13, 2012 prior to May 12, 2015, and in excess of 10 percent thereafter, for right knee patellofemoral pain syndrome (PFPS) with degenerative arthritis. 3. Entitlement to a compensable evaluation from August 13, 2012 prior to May 12, 2015, and in excess of 10 percent thereafter, for left knee patellofemoral pain syndrome (PFPS) with degenerative arthritis. 4. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran had active military service from February 1989 to February 1993. This case comes before the Board of Veterans' Appeals (Board) on appeal of August 2011(mailed in September 2011), and June 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the Board at a March 2013 hearing conducted at the RO. A transcript of this hearing is of record. This case was previously before the Board in February 2015 and in July 2017, at which times the issues on appeal were remanded to the Agency of Original Jurisdiction (AOJ) for further development. Other issues were disposed of by the Board and are no longer on appeal. Procedurally, the RO denied compensable evaluations each for the left and right knee PFPS in the June 2012 rating on appeal. During the pendency of this appeal after the Board's most recent remand, the RO granted a staged increased rating in a September 2015 Decision Review Officer (DRO) rating decision. First, this decision granted an increased evaluation of bilateral knee arthritis from 0 percent disabling to 10 percent effective September 16, 2008 to June 2, 2010. Following a period of temporary 100 percent for a period of convalescence from June 2, 2010, to August 31, 2010, which resulted in the September 2015 DRO decision temporarily reducing the rating to 0 percent during this period, the 10 percent rating for bilateral knee arthritis was resumed from September 1, 2010 to August 13, 2012. Effective August 13, 2012, the September 2015 rating separated the left and right knee PFPS disabilities and reduced each to 0 percent disabling prior to May 12, 2015. (This did not result in a reduction of the Veteran's combined rating.) Thereafter, the September 2015 rating granted a separate 10 percent rating for left knee PFPS effective May 12, 2015 and a separate 10 percent rating for right knee PFPS effective May 12, 2015. Because this increased rating grant covers a period dating back to September 16, 2008, the Board's adjudication shall extend back to that date, notwithstanding the fact that the current increased rating claim on appeal was filed in March 2012. The Board has reclassified the issues to reflect the staged adjudications dating back to September 16, 2008 per the DRO's September 2015 decision. The issue(s) of entitlement to TDIU addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. For the period on appeal from September 16, 2008 to August 13, 2012, excluding the temporary 100 percent rating period of June 2, 2010 to September 1, 2010, the Veteran's bilateral knee disorder was manifested with noncompensable limitation of motion (flexion not less than 90 degrees on the right and not less than 120 degrees on the left and zero degrees extension bilaterally), X-ray indications of degenerative joint disease (arthritis) bilaterally. 2. For the period of the appeal from August 13, 2012 to May 12, 2015 the Veteran's bilateral knee disorder with arthritis was manifested with no evidence of limitation of motion bilaterally. 3. For the period of the appeal from May 12, 2015 the Veteran's right knee disorder with arthritis was manifested with flexion at 95 and 90 degrees and full extension on VA examinations May 2015 and July 2017 and records showing full or nearly full range of motion. 4. For the period of the appeal from May 12, 2015 the Veteran's left knee disorder with arthritis was manifested with flexion at 115 degrees and full extension on VA examinations May 2015 and July 2017 and records showing full or nearly full range of motion. 5. For the period of the appeal prior to November 19, 2010 the Veteran's right knee disorder of PFPS is not manifested by objective evidence of instability; as of that date his right knee symptoms more closely resemble the criteria for slight recurrent subluxation or lateral instability. 6. For the period of the appeal prior to March 7, 2017 the Veteran's left knee disorder of PFPS is not manifested by objective evidence of instability; as of that date his left knee symptoms more closely resemble the criteria for slight recurrent subluxation or lateral instability. CONCLUSIONS OF LAW 1. From September 16, 2008 to August 13, 2012, excluding the temporary 100 percent rating period of June 2, 2010 to September 1, 2010, the criteria for a rating in excess of 10 percent for arthritis of the bilateral knees have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321. 4.3, 4.7, 4.40, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261 (2016). 2. From August 13, 2012 to May 12, 2015, the criteria for a compensable rating for arthritis of the bilateral knees have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321. 4.3, 4.7, 4.40, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261 (2016). 3. From May 12, 2015, the criteria for a rating in excess of 10 percent for arthritis of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321. 4.3, 4.7, 4.40, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261 (2016). 4. From May 12, 2015, the criteria for a rating in excess of 10 percent for 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, 3.321. 4.3, 4.7, 4.40, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261 (2016). 5. The criteria for a separate 10 percent rating for instability of the right knee have been met from November 19, 2010. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321. 4.3, 4.7, 4.40, 4.59, 4.71a, Diagnostic Code 5257, (2016). 6. The criteria for a separate 10 percent rating for instability of the left knee have been met from March 7, 2017. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321. 4.3, 4.7, 4.40, 4.59, 4.71a, Diagnostic Code 5257, (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Regarding the duty to assist, the VA has obtained VA and private treatment records. Additionally the Board remanded these matters for compliance with the duty to assist regarding obtaining adequate VA examinations, with the May 2015 VA examination complying with US Court of Appeals for Veterans Claims (CAVC) decision in the case of Mitchell v. Shinseki 25Vet. App. 32 (2011) and the most recent VA examination of July 2017 complying with the VA's duty to assist including joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158 (2016); See also Southall-Norman v. McDonald, 28 Vet. App. 346, 351 (2016). Criteria & Factual Background Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40 (2016). Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Id.; see also 38 C.F.R. § 4.59 (discussing facial expressions such as wincing, muscle spasm, crepitation, etc.). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45 (2016). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). As the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. Ap. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. 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 (2016); Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Pain without accompanying functional limitation cannot serve as the basis for a higher rating. Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). It is, however, VA's policy to grant at least the minimal compensable rating for actually painful motion. 38 C.F.R. § 4.59. VA's General Counsel has interpreted that a veteran who has arthritis and instability of the knee could receive separate ratings under Diagnostic Codes 5003 and 5257. VAOPGCPREC 23-97. When a knee disorder is already rated under DC 5257, the veteran must also have limitation of motion under DC 5260 or DC 5261 in order to obtain a separate rating for arthritis. If the veteran does not at least meet the criteria for noncompensable rating under either of those codes, there is no additional disability for which a rating may be assigned. In VAOPGCPREC 9-98, the VA General Counsel further explained that, when a veteran has a knee disability evaluated under DC 5257, to warrant a separate rating for arthritis based on X-ray findings, the limitation of motion need not be compensable under DC 5260 or DC 5261; rather, such limited motion must at least meet the criteria for a zero-percent rating. In the alternative, a compensable rating may be granted by virtue of 38 C.F.R. § 1.59. Pursuant to Diagnostic Code 5003, arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, x-ray evidence of involvement of 2 or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations warrants a 20 percent evaluation. X-ray evidence of involvement of 2 or more major joints or 2 or more minor joints warrants a 10 percent evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. For the purpose of rating disability from arthritis, the knee joint is considered a major joint. 38 C.F.R. § 4.45. Normal range of motion for the knee is defined as follows: flexion to 140 degrees and extension to 0 degrees. See 38 C.F.R. § 4.71, Plate II (2016). Under DC 5260, limitation of flexion of the leg provides a non-compensable rating if flexion is limited to 60 degrees, a 10 percent rating where flexion is limited to 45 degrees, a 20 percent rating where flexion is limited to 30 degrees, and a maximum 30 percent rating if flexion is limited to 15 degrees. 38 C.F.R. § 4.71a. Under DC 5261, limitation of extension of the leg provides a non-compensable rating if extension is limited to five degrees, a 10 percent rating if limited to 10 degrees, a 20 percent rating if limited to 15 degrees, a 30 percent rating if limited to 20 degrees, a 40 percent rating if limited to 30 degrees, and a 50 percent rating if limited to 45 degrees. Id. A knee disability can be rated for both limitation of leg flexion under DC 5260 and limitation of leg extension under DC 5261. See VAOPGCPREC 9-2004 (Sept. 17, 2004). Under 38 C.F.R. § 4.71a, DC 5257 covers "other impairment of the knee," and an assignment of a 10 percent rating is warranted when there is slight recurrent subluxation or lateral instability. A 20 percent rating is warranted when there is moderate recurrent subluxation or lateral instability. A 30 percent evaluation is for severe knee impairment with recurrent subluxation or lateral instability. DC 5258 covers dislocated semilunar cartilage with frequent episodes of locking, pain and effusion into the joint; this warrants a 20 percent rating. DC 5259 covers removal of symptomatic semilunar cartilage, which warrants a 10 percent rating. "Chondromalacia patella is defined as the premature degeneration of the patellar cartilage, the patellar margins are tender so that pain is produced when the patella is pressed against the femur." Odiorne v. Principi, 3 Vet. App. 456, 458 (1992) and Rollings Brown, 8 Vet. App. 8, 11 (1995). Chondromalacia patellae is abnormal softness of the cartilage of the kneecaps. Clyburn v. West, 12 Vet. App. 296, 298 (1999). Patellofemoral pain syndrome (chondromalacia of patella, retropatellar pain syndromes, patellofemoral syndrome) are a group of disorders characterized by anterior knee pain between the patella and the femur, especially on climbing or descending stairs or on squatting. There may be deep tenderness on palpation and pressure on the patella, crepitus on motion, a grinding sensation behind the patella, and occasionally swelling. 68 Fed. Reg. 7018 (February 11, 2003). By way of history, service connection for a bilateral knee disorder of PFPS was granted by the RO in a June 1994 rating which assigned initial noncompensable ratings from initial entitlement. The current increased rating claim filed by the Veteran was dated March 9, 2012. However during the pendency of this appeal the September 2015 DRO decision granted a 10 percent rating for the bilateral knee disorder under DC 5003, effective September 16, 2008, based on there being a VA X-ray of that date showing arthritis in both knees. Generally, and except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation (DIC) based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110 (a) (West 2014); 38 C.F.R. § 3.400 (2016). The Board finds no evidence of an open and pending claim for an increased rating of the bilateral knee disorder prior to September 16, 2008. Thus, the Board shall consider entitlement to an increased rating for the bilateral knee disorder back to September 16, 2008 but no earlier. The Board also notes that in an April 2008 VA examination for multiple joint complaints, the Veteran declined to discuss his knee symptoms but indicated that they were as bad as his other joints and the remainder of the examination focused on problems other than the knees On September 16, 2008 the Veteran was seen in the ER for a lump on his right knee present for a month or more with swelling over the right tibial tubercle. There were similar findings on the left knee, though the lump was smaller. He had pain of 5/10 intensity when walking and on range of motion. He was assessed with bursitis, most likely Osgood-Schlatters. An X-ray taken the same day confirmed minimal symmetrical degenerative joint disease (DJD) shown, See 150 pg. medical treatment recs entered 6/2/10 pg. 33; see also February 2011 VA examination at pg. 1. Records dated in December 2009 and February 2010 disclosed continued complaints of right knee pain and issues with a mass lesion below the right knee that was painful when working on his knees, to the extent that he used a towel when kneeling in his work as a handyman. However he had a full range of motion of his knee. See 150 pg. medical treatment recs entered 6/2/10 at pg. 13-14. In May 2010 he continued with right knee pain, assessed as a probable loose body and plans were made to undergo surgery. Id. At pg. 2, 10. The records were silent for any left knee issues. For the period of June 2, 2010 to August 31, 2010 the Veteran was in receipt of a 100 percent rating following surgery to remove a lipoma of the right knee. This right knee lipoma and a subsequent right knee neuroma surgically removed in September 2011 have been adjudicated as non-service connected and not due to an additional disability as a result of VA medical treatment due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or an event not reasonably foreseeable under 38 U.S.C. § 1151 by the Board in July 2017. Records after the expiration of the temporary 100 percent rating show that from September 2010 through December 2010, the Veteran continued to have issues with the right knee, including a tearing type of pain lateral to the right patella when trying to flex. He underwent injections of the right knee in October 2010. On November 19, 2010 the Veteran reported symptoms of giving way and backing up of the right knee. He was assessed with internal derangement in the November 19, 2010 note. See 2 pg. document received 12/03/10 at pg. 2 and 28 pg. med recs received 12/09/10 at pg. 2, 10, 11. On follow-up in January 2011 he was noted to have an essentially normal right knee MRI except for slight effusion and bruising. His Neoprene sleeve he was issued helped but he still had difficulty kneeling, but with nearly full range of motion. There continued to be no mention of any left knee problems in the records up to this point. The report of a February 2011 VA examination addressed the Veteran's claim of TDIU in regard to his right knee PFPS. This examination noted a history of surgery in the prior year for a non-service-connected lipoma of the right knee with residuals of pain, weakness and difficulty using stairs. This examination noted the presence of a September 16, 2008 X-ray of the bilateral knees with minimal symmetrical DJD shown, with the X-ray report itself attached to the first page of the examination report. The surgical history of removal of right knee lipoma/ganglion cyst in June 2010 was noted and discussed in detail, including the subsequent development of another cyst and continued trouble bending and kneeling. Complaints were limited to right knee symptoms with pain in the front right knee and he was not able to kneel on this knee or stand for more than 4 hours. He was able to walk but when asked about limitation in distance, was unable to quantify it, just indicating that it was difficult to exercise. He reported pain when going up and down stairs and has to use the hand rail. He treated with an Etodalac pill once a day. He further reported having scars on both knees from doing sports prior to service and bilateral knee pain in military service. On physical examination, his gait was mildly antalgic favoring the right leg. On range of motion his active and passive motion were the same and measured 0-120 degrees for the right knee and 0-130 degrees for the left knee. He had pain on right knee flexion and extension. Additional limitation identified after repetitive use was in active range against mild/moderate resistance in each above range times three. There was no further limitation in range of motion secondary to pain, fatigue weakness or loss of endurance. He continues to report the pain however. On review of diagnostic tests, a December 2010 MRI of the right knee showed an impression of joint effusion with dissecting complex popliteal cyst which appears to have partially ruptured and mild bony contusion of the medial femoral condyle. He was diagnosed with service connected bilateral PFPS and the non-service-connected right patellar lipoma status post-surgical removal with residual pain and limitation in mobility. The examiner was unable to assess limitation in right knee for TDIU purposes or on activities of daily living as his current complaint was surgery residual from a lipoma excision, not his service-connected PFPS. Left knee complaints were not reported as specifically limiting at the time of this examination. The Veteran was focused on right knee concerns, as well documented in the objective section of the report. The report of an August 2011 VA joints examination for multiple joints disorder primarily addressed the history and etiology of the right knee non-service connected issues, with a surgical history of removal of a loose body on the right knee the right knee, which was initially diagnosed as Baker's cyst in May 2010 but on pathology in June 2010 was diagnosed as lipoma with possible ganglion cyst. The pre-surgery notes reviewed in this examination included records from February 2010 that showed the Veteran to walk without a limp, have full range of motion of the knee and unremarkable X-rays. Post-surgery records from October 2010 reviewed by this examiner disclosed complaints of pain on the knee when kneeling, but still with good range of motion and strength. Complaints of pain on the lateral side of the joint were thought to be possibly joint related and unrelated to his surgery. The records reviewed included those of injection of the right knee joint in November 2010, at which time he also had giving way and backing of the right knee, suspected to possibly be internal derangement. The examiner pointed to a January 2011 note showing a slight effusion in the right medial femoral condyle on MRI and continued pain in the area where the lipoma was removed with some difficulty kneeling. The examiner also reviewed February 2011 VA examination which he also conducted, noting at that time that his range of motion of the right knee was nearly full, but with some residuals attributed to the surgery of pain, weakness and difficulty using stairs. Current findings of right knee joint symptoms were negative for deformity, giving way or instability. There was pain, stiffness, weakness or decreased speed of joint motion. He also had signs of inflammation, such as warmth, redness, swelling and tenderness. Regarding other findings, the August 2011 examiner referred to his prior examination of February 2011. The diagnoses included service connected PFPS and non-service-connected fibrous lipoma/ganglion cyst (previously thought to be a Bakers cyst) of the right knee, status post-surgical excision. The rest of the examination addressed the etiology of the non-service-connected knee disability which was confirmed to be unrelated to the service-connected PFPS. As for his current complaints of pain and limited flexion, these were deemed to be related to his non-service-connected surgical residuals, with the examiner providing rationale for this opinion based on the location of the pain and extensive orthopedic notes. In July 2011, a little over a year after his right knee surgery, the Veteran had continued pain and exquisite tenderness over the incision line of the right knee, thought to be a neuroma. This non-service-connected neuroma was surgically removed in September 2011. On follow-up two months post surgery in November 2011 he had improved with some numbness on the lateral side of the right knee that was probably permanent. Plans were made to obtain a neoprene Mueller brace for immobilization and return in 3 months. See 15 pg. medical records received 8/8/11 at pg. 2; see also 6 pg. private records received 9/22/11 and 1 pg. 11/22/11 record received 3/14/12. A June 2012 VA medical opinion determined that the Veteran's exquisite tenderness on the anterior knee was related to his prior non-service connected surgeries. The examiner determined that it is more likely than not that the objective evidence of pain elicited with motion was due to his non-service connected prior right knee surgeries. See 1 pg. 6/18/12 VAX addendum. Again the records were completely silent for left knee complaints. In June 2012 the Veteran underwent a knee VA examination, with PFPS/chondromalacia diagnosed for both knees. The examiner referred to prior examinations from February 2011 and August 2011 for the surgical history of the right knee. The examiner noted that all symptoms related to his right knee surgeries in June 2010 and September 2011 for right knee lipoma, ganglion cyst sac and right prepatellar bursa right knee for right knee painful neuroma had been determined by the VA to not be service-connected. Thus, the Veteran was only service connected for right and left knee PFPS. He had no surgeries on his left knee. Flare-ups from increased pain impacted function of his knees. Range of motion of the right knee was 0-90 degrees, and left knee was 0-120 degrees. There was painful motion at 90 degrees on the right but no other painful motion. There was no additional loss of motion or other functional impairment on repetitive testing. He had pain on palpation on the right side only. Muscle strength testing was full 5/5. Joint stability tests for both knees were negative and there was no history of recurrent subluxation or lateral instability. There was no history of recurrent patellar dislocation, "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. The only surgical history of the right knee was the 2 surgeries for the right knee with chronic right knee pain as a residual which should not be considered as this had been determined to be non-service-connected. He used braces and cane which were for his non-service-connected right knee disorder. His bilateral knee disorder did not result in impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. Diagnostic tests confirmed the presence of arthritis bilaterally but no other significant findings including no evidence of patellar subluxation. Functional impact of the bilateral knee disorders was described as having no effect on sedentary and light manual labor. For manual labor, prolonged walking, prolonged standing, squatting and kneeling on the ground were limited. The examiner remarked that he had right knee scars not due to his service-connected right knee PFPS. VA records dated from November 2012 through 2014 document continued right knee issues but remain silent as to left knee problems until 2014. Generally, the records show that the Veteran repeatedly underwent injections (Hyalogen or Supartz) for his right knee pain. The records from November and December 2012 records disclosed that he was still wearing his brace on the right knee. See 17 pg. VA records 1/7/13 at pg. 6-7. An October 2012 record described him doing well with his injections and he only wore the brace when symptoms happened due to chondromalacia. In March 2013, a recent MRI of the right knee was said to show a possible ganglion or synovial cyst. Later in July 2013 his right knee pain, with the recent MRI findings of a cyst or mass had improved to nearly asymptomatic after injections. He was still wearing his neoprene brace during the day to alleviated chondromalacia symptoms. In January 2014 his knee pain was described as primarily arthritic type chondromalacia. A February 2014 note described his right knee as painful after a recent injection but with full range of motion. In April 2014 again he was noted to wear the brace for chondromalacia, which was improving his condition. See 269 pg. CAPRI entered 4/14/15 at pg. 10-15, 18, 19, 22 In August 2014 the Veteran was followed for recurrent right knee pain, with recent onset of left knee pain for 2 months. The provider assessed possible overload syndrome due to excessive weight and injections were scheduled. He continued to receive treatment that included injections in March 2015, with X-rays showing mild arthritic changes and unload chondromalacia patella on the right knee for which he continued to use a neoprene brace. Id at pg. 2, 7, 8. At his hearing held in February 2015 the Veteran described restrictions on kneeling and bending from his surgeon who performed his right knee surgery. He also reported decreased range of motion. He described wearing a brace specially built to stabilize his right knee as his patella and femur bone no longer line up properly. He did not use a brace for his left knee. He described functional limitations in having to turn down handyman jobs because of being unable to crawl. He described being able to walk short distances, and could walk a little longer with the brace. He described using handrails on the stairs out of fear of falling. He also reported right knee swelling and that he had to sleep with the right leg elevated. He described his left knee as having never caused him to fall but he was putting more weight on it. The left knee hurt but not as bad as the right knee. Transcript pg. 7-14. On May 12, 2015 the Veteran underwent a VA examination of the bilateral knees. The examiner diagnosed PFPS and arthritic conditions/arthritis degenerative of both knees. The Veteran reported that since the last rating examination both knees were worse. He described flare-ups of the bilateral knee disorder worse with physical activity and with going up and downstairs. Range of motion of the right knee was 0-95 degrees, and left knee was 0-115 degrees. Both knees had abnormal motion, but this abnormal range did not contribute to functional loss. For both knees, pain was noted on exam on both flexion and extension but did not result in functional loss. Pain was not evident on weight bearing but there was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. Tenderness to palpation over the patella and surrounding soft tissues and objective evidence of crepitus was noted bilaterally. On repetitive testing there was no additional functional loss after three repetitions for either knee. The knees were not being examined immediately after repetitive use over time or during flare-ups. The examination of both knees was neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use or flare-ups over time. As to whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time, the examiner was unable to say without mere speculation due to this examiner having not examined the Veteran after repeated use over a period of time or after an acute exacerbation. Additional contributing factors to disability for both knees included decrease range of motion due to DJD and residuals of surgery( adhesions and pain) for the right knee and DJD for the left knee. Muscle strength testing was 5/5 strength bilaterally without evidence of muscle atrophy or ankyloses. His bilateral knee disorder did not result in impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. Joint stability tests for both knees were negative and there was no history of recurrent subluxation, lateral instability. There was no history of recurrent patellar dislocation, "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. However for the right knee he did have a history of effusions, which occurred weekly. There was no history of a meniscus condition. His surgical history included excisions of a lipoma in June 2010 and with residuals of effusions, pain and decreased active range of motion. As for assistive devices, he used braces regularly for bilateral knee support. Imaging studies documented arthritis in both knees and additionally showed a small effusion of the right knee in a March 2012 X-ray. Functional impact was that he was limited in his ability to perform physical and sedentary labor. The examiner further discussed functional loss per the Mitchell factors. The examiner stated that it is feasible that, during flare-ups or when the joint is used repeatedly over time, the Veteran could suffer a limitation in the functional ability of the bilateral knees. Any additional limitation of functional ability would most likely be further loss of range of motion (ROM) of the bilateral knees. However, the examiner stated that it is not feasible to comment on the actual numerical degree of limitation, as this would be nothing more than mere speculation, due to the fact that any limitation of range of motion of the joint would likely vary somewhat from day to day depending upon, but not limited to, the types of activities performed by the joint and/or the repetitions the joint is put through, whether the Veteran takes or does not take medication for the condition, and even perhaps weather influences, among others. The examiner opined that no one could respond accurately without resorting to speculation given current medical science or the known facts, stating that there is no scientific research available to provide a basis for calculating additional range of motion during use. Records dated in 2015 show continued treatment for mostly ongoing right knee symptoms with injections and continued bracing. Although symptomatic with a small effusion and crepitus of the right knee in a May 2015 record, he nevertheless had good range of motion with calf nontender and neurovascularly intact. See 269 pg. CAPRI received 6/09/15 at pg. 30. In July 2015 he reported little improvement with injections. Obesity was said to aggravate his chondromalacia patella; this would be noted again in subsequent records. He wore a hinged neoprene brace and at times when he was severely symptomatic, he also wore a patellar tracking orthosis and needed knee sleeves for wearing the brace. See 170 pg. CAPRI received 9/2/15 at pg. 45. He continued with injections in October and November 2015 and used his patellar and tracking orthosis for right sided chondromalacia. By December 2015 he reported pain relief after injections and had full range of motion and ambulated without assistive device and his right lower extremity was without deformity or muscle atrophy. See 41 pg. CAPRI received 2/23/16 at pg. 2, 4, 7, 15, 40. No left knee issues were described in the 2015 records. Likewise, the records in 2016 show continued right knee treatment without significant left knee problems mentioned. In May of 2016 the Veteran requested additional injections for degenerative arthritis and chondromalacia of the right knee. He was noted to work as a groundskeeper in a job that did not require heavy lifting, crawling or kneeling required in previous employment. He underwent the Hyalogen injections in June 2016 with good pain relief from the first injection. Examination again showed normal range of motion in the right lower extremity without significant issues, full weight bearing and without an assistive device. See 134 pg. CAPRI received 8/21/17 at pg. 66, 68, 72. By 2017 some left knee problems were increasingly mentioned, along with persistent right knee complaints. In February 2017, the Veteran was seen for bilateral knee pain, greater on the right, and he was noted to have done well with Hyalogen injections in the left knee as well as the right. Examination was significant for tenderness to palpation over the patella and joint line. He was assessed with bilateral knee pain, DJD and chondromalacia. In March 2017 he was seen for bilateral knee pain and was starting another series of injections. The March 7, 2017 note significantly described him as having increased symptoms of crepitus and pain, as well as mild edema in the lower extremities. However, his knees were without effusion or signs or symptoms of infection. His range of motion was 0-115 degrees comfortably. X-rays were ordered and on follow-up a week later the X-rays showed no significant increase in arthritic changes. The next week on March 21, 2017 he complained of his left knee "blowing up" without specific injury a few days earlier while shopping. This was now resolved but he still had moderate effusion. He also complained that the left knee felt unstable with giving way. He was injected and MRI results for the left knee showed a Baker's cyst. See 134 pg. CAPRI received 8/21/17 at pg. 23, 24, 27, 29, 31. In July 2017 the Veteran underwent a VA examination of the bilateral knees. The examiner diagnosed PFPS and arthritis of both knees. The Veteran reported that since the last rating examination in 2015, both knees had worsened. He continued to receive Halogen injections to right knee at the VA Orthopedic clinic since the last rating and began the same kind of injections to his left knee in January 2017. He had two of these injections to both knees every six months. A recent MRI of the left knee revealed a Baker's cyst. Regarding flare-ups, the bilateral knee condition was flared-up by prolonged standing, walking, and sitting, squatting, climbing and descending stairs. It was alleviated better by rest, NSAIDs, elevation and avoiding the above inciting activities. His right knee was a little worse. When his knee flared up he was not able to function at all and was not able to perform any duties around the house, the symptoms greatly affect his daily activities, he found it difficult to do routine projects, such as shopping, yard work, and cleaning. Range of motion of the right knee was 0-90 degrees, and left knee was 0-115 degrees. Both knees had abnormal motion, but this abnormal range did not contribute to functional loss. For both knees, pain was noted on examination (on both flexion and extension and both active and passive motion) but did not result in or cause functional loss. The discussion of pain included addressing the Correia factors. Bilaterally, pain was evident on weight bearing and non-weight-bearing and there was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. As for the pain on motion, both joints were damaged. On repetitive testing there was no additional functional loss after three repetitions for both knees. The knees were not being examined immediately after repetitive use over time or flare-up but the examination was found to be medically consistent with the Veteran's statements describing functional loss with repetitive use over time. Pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time, with pain the factor causing the functional loss in both knees. However, the examiner was unable to describe the impact of pain in terms of range of motion for either knee finding this would involve having to resort to speculation on this matter, using the identical rationale that the May 2015 VA examiner used when discussing speculation. Additional contributing factors of disability included disturbance of locomotion, interference with sitting and standing for both knees. Muscle strength testing was 5/5 strength bilaterally without evidence of muscle atrophy. His bilateral knee disorder did not result in impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. Joint stability tests for both knees were negative and there was no history of recurrent subluxation, lateral instability. There was no history of recurrent patellar dislocation, "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. There was no history of a meniscus condition. His surgical history included excisions of a lipoma in 2010 and of a neuroma in 2011 on the right with a scar over right knee, measuring 9 centimeters by 1.0 centimeters. This scar was not painful, unstable, nor did it have a total area equal to or greater than 39 square cm (6 square inches). Regarding assistive devices, the Veteran used an unloading brace with patella tracker for the right knee wearing all day, every day. He used a brace for his left knee occasionally, three days a week. Review of imaging studies confirmed that arthritis was present on X-ray bilaterally. Other diagnostic tests included a February 2014 MRI that showed a Bakers cyst of the left knee. Occupationally, his bilateral knee condition would affect or impose work restriction in fields of labor requiring prolonged sedentary work, light, moderate and heavy manual labor and would restrict the veteran's ability to lift, pull or carry light and heavy loads for short and prolonged periods of time. He worked in construction until 2010 at which time he had right knee surgery as he was then unable to up and down stairs, climb ladders, work on his knees, squat, bend. Analysis Rating in excess of 10 percent disabling for bilateral knee disability with arthritis from September 16, 2008 to August 13, 2012, excluding the temporary 100 percent rating period of June 2, 2010 to September 1, 2010. The RO has assigned the 10 percent disability for arthritis of the bilateral knees during this period based on the September 16, 2008 X-rays showing X-ray in 2 major joints (bilateral knees) in the absence of compensable loss of motion. See DC 5003. On review of the evidence extending from September 16, 2008 to August 13, 2012, the criteria for a rating in excess of 10 percent for the bilateral knee disability has not been met. During this period (excluding the period of temporary 100 percent rating from June 2, 2010 to September 1, 2010) the documented ranges of motion were repeatedly full or nearly full both in the clinical records and the VA examination reports detailed above. At no point are his ranges of motion shown to even meet the criteria for even a 0 percent rating on flexion and extension, with ranges of motion shown to be greater than the 5 degrees extension and 60 degrees flexion meeting that criteria, and well above the 10 degrees extension and 45 degrees flexion contemplated by the criteria for 10 percent ratings under DC 5260 and 5261. Most of the findings are noted to refer to the right knee, as the left knee was not mentioned in most of the records and examination reports. However the left knee's range of motion was nearly full at 0-120 degrees in the June 2012 VA examination. Regarding painful motion affecting function, the evidence during this time period from September 16, 2008 to August 13, 2012 did include findings of issues with pain and tenderness of the right knee, as well as some functional limits on activities such as kneeling and bending, which were attributed to the non-service-connected lipoma that had been surgically removed in June 2010. The VA examinations of August 2011 and in June 2012 described pain and exquisite tenderness on motion of the right knee also provided opinions that these issues were more likely than not related to his non-service-connected lipoma and subsequent neuroma. As for the left knee, it was asymptomatic during this period. Thus, there is no basis for assigning separate compensable ratings based on limited motion, to include painful motion for either the right or left knee, and a rating in excess of the 0 percent rating assigned for the bilateral knee disorder under Diagnostic Code 5003 is not warranted. The records also fail to discloses evidence functional loss due to pain, weakness, fatigue or incoordination as contemplated by 38 C.F.R. §§ 4.40, 4.45 and 4.59 that could potentially warrant a 10 percent rating for either left or right knee disability during this time period. There is also no evidence of occasional incapacitating exacerbations due to the service-connected PFPS with arthritis of the bilateral knees. Again as noted above, while the Veteran has had some issues with right knee pain during this period, such pain was shown to be due to his non-service connected lipoma and neuroma disorders. There is no medical evidence showing that the Veteran had any incapacitating episodes in either knee due to his service connected PFPS with arthritis. Given the above, the criteria for a rating in excess of 10 percent disabling for a arthritis of either knee under Diagnostic Code 5003 have not met for the period from September 16, 2008 to August 13, 2012, excluding the temporary 100 percent rating period of June 2, 2010 to September 1, 2010. Entitlement to a compensable rating for a bilateral knee disability with arthritis from August 13, 2012 to May 12, 2015 As noted in the procedural history, the September 2015 DRO decision in its staged rating decreased the rating for the bilateral knee disability with arthritis from 10 percent bilaterally to 0 percent during this period from August 13, 2012 to May 12, 2015. This was based on evidence of a service-connected lumbar spine disorder now having manifestations of arthritis with a compensable loss of motion on August 13, 2012. See 269 pg. CAPRI received 4/14/15 on pg. 45. Because the service-connected lumbar spine arthritis was now rated compensably as of this date, each arthritic joint had to be evaluated separately, to include the bilateral knee arthritis manifestations under DC 5003. Again under this Diagnostic Code, if the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. A review of the evidence regarding range of motion revealed no objective findings suggestive of motion loss for either the right or left knee during the period from August 13, 2012 to May 12, 2015. Generally, the records disclosed him responding well to injections with his right knee being nearly asymptomatic in July 2013 and with a full range of motion in February 2014. No findings of any issues with the left knee were shown at all in the records for this time period. Although the Veteran testified at his February 2015 hearing of having limited motion of his right knee to the extent that his right knee remained straight, this is not confirmed by the medical evidence, showing full range of motion. Thus, a compensable rating is not warranted even based on noncompensable limited motion under DC 5003, and it is not warranted under the criteria governing limited motion under DC 5260 and 5261 for either the left knee or right knee for the period from August 13, 2012 to May 12, 2015. The records also fail to discloses evidence functional loss due to pain, weakness, fatigue or incoordination as contemplated by 38 C.F.R. §§ 4.40, 4.45 and 4.59 that could potentially warrant a 10 percent rating for either left or right knee disability during this time period. Hence, a compensable rating for the left knee and the right knee disorders is not warranted during this time period. Entitlement to ratings in excess of 10 percent each for left and right knee disabilities with arthritis from May 12, 2015 As of May 12, 2015, the RO granted bilateral 10 percent ratings each for the left knee and right knee disabilities based on the findings from the VA examination of this date showing painful limited motion of the knees, under 38 C.F.R. § 4.59. A review of the evidence from this date onward fails to disclose that ratings in excess of the 10 percent ratings for each knee are warranted based on limited motion. His ranges of motion shown in the May 2015 and July 2017 VA examination were nearly identical, with the right knee at 95 and 90 degrees flexion respectively and the left knee with 115 degrees flexion both examinations and full extension at all times for both knees; albeit with pain on motion. Likewise, his ranges of motion repeatedly were shown in the treatment records from May 2015, December 2015 and June 2016 to be described as good, full or normal. His ranges of motion in March 2017 were noted to be 0 to 115 degrees. These findings do not more closely resemble the criteria for a 20 percent rating for either flexion or extension even with consideration of functional loss, they do not approach that of flexion limited to 30 degrees or extension limited to 15 degrees. Thus, ratings in excess of 10 percent disabling each are not warranted based on loss of motion for the right knee and for the left knee. In sum the preponderance of the evidence is against a rating in excess of 10 percent for the right knee PFPS with arthritis and limited motion and in excess of 10 percent for the left knee PFPS with arthritis and limited motion as of May 12, 2015. Entitlement to Separate ratings under Diagnostic Codes 5257 for left and right knee disabilities manifested by instability The Board must also consider whether a separate rating under DC 5257 is warranted for either knee. Regarding the right knee, with consideration of the application of the benefit of the doubt, a separate 10 percent rating is warranted based on slight recurrent subluxation or lateral instability as of the November 19, 2010 date in which he reported symptoms of giving way and backing up of the right knee and was assessed with internal derangement in the November 19, 2010 note. See 2 pg. document received 12/13/10 at pg. 2 and 28 pg. med recs received 12/09/10 at pg. 2, 10, 11. The evidence is in equipoise whether these symptoms are due to his service connected PFPS as opposed to the non-service-connected residuals of lipoma and neuroma surgery. Subsequent to this diagnosis the records repeatedly show that the Veteran was in receipt of a hinged neoprene brace to treat a right knee chondromalacia (described in January 2014 as "primarily arthritic type chondromalacia") and that he used this brace when his symptoms flared throughout the pendency of this appeal. The Board finds that this evidence supports a finding that his right knee PFPS (also referred to as chondromalacia) caused symptoms that required bracing and more closely resembles the criteria for slight recurrent subluxation or lateral instability. However, there is no evidence of a moderate recurrent subluxation or lateral instability warranting a 20 percent rating for his right knee disorder. Repeatedly, his stability tests were normal on VA examinations and there is no evidence that the Veteran had episodes of falling due to this instability. In his February 2015 hearing, he did report using handrails due to fear of falling, but did not report actual incidents of falls from his right knee. Thus with consideration of the benefit of the doubt, a separation 10 percent rating for a right knee disability due to PFPS with slight recurrent instability is warranted from November 19, 2010. For the left knee, there is no evidence of any left knee symptoms shown, to include no recurrent subluxation or lateral instability during the pendency of this appeal prior to March 7, 2017, and he denied his left knee causing any issues with falling in his hearing testimony. Thus a separate compensable rating is not warranted for the left knee disorder under these criteria prior to March 7, 2017. As of March 7, 2017 the Board finds that the evidence for the left knee more closely resembles the criteria for a slight recurrent subluxation or lateral instability. The March 7, 2017 note significantly described him as having increased symptoms of crepitus and pain, as well as mild edema in the lower extremities, which includes the left knee. Later on March 21, 2017 he complained that his left knee "felt unstable" with giving way. He was also now receiving injections in the left knee at this time. He also now used a brace for his left knee occasionally, three days a week according to the July 2017 VA examination. Thus with consideration of the benefit of the doubt a separate 10 percent rating for slight instability is warranted as of March 7, 2017. However a 20 percent rating is not warranted under DC 5257, as there is no evidence of moderate recurrent subluxation or lateral instability of the left knee. Although he now had some left knee stability complaints, stability testing was completely normal on the July 2017 VA examination report. Elsewhere the record is silent for any left knee instability issues. In sum, separate 10 percent ratings are warranted under DC 5257 based on instability for the right knee PFPS as of November 19, 2010 and for the left knee PFPS as of March 7, 2017. Other Considerations There is also no evidence of ankyloses shown for either knee, nor of tibia-fibula impairment shown with either knee, nor dislocated or removed semilunar cartilage or genu recurvatum shown, thus higher ratings under the Diagnostic Codes pertaining to these disorders are not warranted during any stage of this appeal. ORDER Entitlement to a rating in excess of 10 percent disabling for service connected bilateral knee PFPS with degenerative arthritis from September 16, 2008 to June 2, 2010 and from September 1, 2010 to August 13, 2012 (following a period of temporary total disability from June 2, 2010 to September 1, 2010) is denied. Entitlement to a compensable evaluation from August 13, 2012 prior to May 12, 2015, and in excess of 10 percent thereafter, for right knee PFPS with degenerative arthritis is denied. Entitlement to a compensable evaluation from August 13, 2012 prior to May 12, 2015, and in excess of 10 percent thereafter, for left knee PFPS with degenerative arthritis is denied. Entitlement to a separate 10 percent rating for right knee PFPS with instability is granted from November 19, 2010. Entitlement to a separate 10 percent rating for left knee PFPS with instability is granted from March 7, 2017. REMAND Regarding the claim for a TDIU, readjudication of this matter is indicated in light of the recent grants of increased 10 percent ratings each for the bilateral knee disorders with manifestations of instability. The Board notes that the combined rating remains less than a scheduler 100 percent rating even with these grants per the criteria for combined ratings under 38 C.F.R. § 4.25. Additionally, a vocational rehabilitation file was added to the record in October 2017, after the RO issued its supplemental statement of the case in October 2017. Although the Veteran's substantive appeal was filed after February 2, 2013, these records were obtained by VA rather than the Veteran. Therefore, there is no automatic waiver of AOJ review. See c.f. § 501 of the Honoring America's Veterans Act, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide for an automatic waiver of initial AOJ review of evidence submitted to the AOJ or to the Board at the time of or subsequent to the submission of the substantive appeal, unless the claimant or claimant's representative requests in writing that the AOJ initially review such evidence). Likewise the Board notes that this VA-generated evidence may not be waived by the Veteran, including in his August 2017 30 day waiver which was limited to evidence submitted by the Veteran. On remand, the RO should review these records as they pertain to the Veteran's TDIU claim. Further the Board finds that in light of recent evidence obtained, further clarification is necessary as to whether the Veteran is currently engaged in substantial gainful employment. Among the records obtained pursuant to the most recent remand are 134 pages of VA records obtained on August 21, 2017. At page 72, a May 23, 2016 orthopedic note describes the Veteran as currently working as a groundskeeper at a golf course, but makes no indication as to whether this is on a full time or part time basis for the purposes of substantial gainful employment. Thus the Veteran should provide an updated VA Form 21-4192 with this most recent employment information. Additionally given the Veteran's multiple service connected disabilities, should the evidence show that he is not presently engaging is substantial gainful employment, a vocational assessment should be completed to assess the impact of the Veteran's service-connected disabilities on his ability to maintain gainful employment. The July 2017 VA examination disclosed reports of functional loss of both knees since 2014. The examiner explained that the veteran's bilateral knee condition would affect or impose work restriction in fields of labor requiring prolonged sedentary work, light, moderate and heavy manual labor and would restrict the veteran's ability to lift, pull or carry light and heavy loads for short and prolonged periods of time. The examiner considered the Veteran's history of working in construction until 2010 at which time he had right knee surgery and the residuals of that surgery made him unable to up and down stairs, climb ladders, work on his knees, squat, or bend. This statement from the July 2017 examiner suggests employment restrictions to sedentary work due to service-connected knee disabilities. In addition to the knee disabilities, the Veteran has multiple other service connected disabilities including a service connected psychiatric disorder of a mood disorder with mixed anxiety disorder. It is suggested from a June 2015 lay statement from his former employer that the Veteran had quit his job due to interpersonal difficulties with other coworkers, recently raising the possibility of interference with employment from his psychiatric symptoms. Given this history, a vocational assessment should be obtained that considers the impacts of all his service connected disabilities to his employability if he is not presently working in substantially gainful employment. Furthermore the effective date of the increased rating for the bilateral knee disorder was adjudicated back to September 16, 2008 and the combined rating met the criteria for a schedular TDIU rating no earlier than March 9, 2012 (when it reached 80 percent and is now 90 percent since July 24, 2014; a combined 50 percent rating was in effect from November 21, 2007 to March 8, 2012 except for a temporary 100 percent rating from June 2, 2010 to August 31, 2010). Thus, consideration of the appropriateness of extraschedular consideration, including possible submission to the Director, Compensation and Pension Service, for extraschedular consideration should be made during any period during the pendency of any TDIU claim stemming from the increased rating knee claim when the scheduler criteria for TDIU was not met. See 38 C.F.R. § 4.16 (a)and (b)Rice v Shinseki, 22 Vet. App. 447 (2009). Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran complete an updated VA Form 21-4192 with his most recent employment information to include that mentioned in the May 23, 2016 orthopedic record so VA can appropriately ascertain whether he is engaging in substantial gainful employment. 2. Thereafter, if the response to the above requests discloses the Veteran to not be currently engaged in substantial gainful employment, a vocational assessment should be completed to assess the impact of all the Veteran's service-connected disabilities on his ability to maintain gainful employment. 3. Thereafter, following any additional development, to include consideration of the appropriateness of submitting the claim to the Director, Compensation and Pension Service, for extraschedular consideration per § 4.16(b) for any portion of the TDIU appeal period that does not meet the scheduler criteria for TDIU; review the record, including the vocational rehabilitation file that was added to the record in October 2017 and vocational assessment, and readjudicate the claim for a TDIU. If any issue remains denied, the AOJ should issue an appropriate supplemental statement of the case and afford the Veteran the opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs