Citation Nr: 21008765 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 10-19 816 DATE: February 18, 2021 ORDER Entitlement to an evaluation in excess of 30 percent for left knee injury with traumatic arthritis and instability, status post arthroscopy, to include on an extraschedular basis is denied. Entitlement to a separate 10 percent rating, but no higher, for left knee arthritis resulting in limited extension is granted. REMANDED Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s left knee has been demonstrated by severe lateral instability without compensable limitation of motion for limitation of flexion. 2. The Veteran’s left knee disability is manifested by findings of arthritic changes and extension limited at 13 degrees. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for a left knee disability are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5257 (2020). 2. The criteria for a separate 10 percent rating, but no higher, for left knee arthritis resulting in limited extension are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5261 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from August 1972 to December 1972. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before a Decision Review Officer (DRO) at a December 2010 RO hearing. A transcript of this hearing is of record. Pursuant to the Veteran’s request, a hearing before a Veterans Law Judge was scheduled for July 2012. In July 2012, VA was notified that the Veteran was incarcerated, and thus, he was unable to attend his hearing. In December 2013, VA asked the Veteran to respond to a request to schedule his hearing. The Veteran did not respond, and therefore, his request for a hearing is deemed withdrawn. 38 C.F.R. § 20.603 (d). The Board remanded the issue of entitlement to a higher evaluation for left knee injury with traumatic arthritis and instability, status post arthroscopy, for additional development in February 2014, June 2017 and January 2020. The Veteran has also separately appealed the issue of entitlement to an initial rating in excess of 10 percent for degenerative disc disease of the lumbar spine. In September 2020, the Veteran submitted a VA Form 20-0996, in which he opted into the Appeals Modernization Act (AMA) system and selected the higher-level review (HLR) lane. Therefore, this issue is not before the Board and will be addressed by the Agency of Original Jurisdiction (AOJ). Increased Ratings Laws and Regulations The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2020). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2020). The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2020). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the “staging” of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2020). In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of his knee disability. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities. 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. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. 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. 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. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. Although the first sentence of 38 C.F.R. § 4.59 refers only to arthritis, the regulation applies to joint conditions other than arthritis. Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011). In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of “the normal working movements of the body,” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). The Court has set forth a three-step analysis for analyzing extraschedular rating issues. Thun v. Peake, 22 Vet. App. 111, 115 (2008). The threshold factor for extraschedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Thun, 22 Vet. App. at 115. Therefore, initially there must be a comparison between the level of severity and symptomatology of the claimant’s service-connected disability and the established criteria found in the Rating Schedule for that disability. If the criteria reasonably describe the claimant’s disability level and symptomatology, then the claimant’s disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is adequate, and no referral is required. In the second step, if the schedular evaluation does not contemplate the claimant’s level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant’s exceptional disability picture exhibits other related factors such as those provided by 38 C.F.R. § 3.321 (b)(1) (i.e., marked interference with employment and frequent periods of hospitalization). Id. at 116. When the Rating Schedule is inadequate to evaluate a claimant’s disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred for a determination of whether, to accord justice, the claimant’s disability picture requires the assignment of an extraschedular rating. Id. The Veteran filed a claim for an increased rating for his left knee disability which was received by VA in September 2008. The Veteran currently has 30 percent rating for instability of the left knee under Diagnostic Code 5257. Traumatic arthritis is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved. In the alternative, a 10 percent rating is warranted if there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent evaluation is authorized if there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under 38 C.F.R. § 4.71a, Diagnostic Code 5260, if flexion of the knee is limited to 45 degrees a 10 percent rating is in order. If flexion of the knee is limited to 30 degrees a 20 percent rating is in order. If flexion of the knee is limited to 15 degrees a 30 percent rating is in order. Under 38 C.F.R. § 4.71a, Diagnostic Code 5261, if extension of the knee is limited to 10 degrees a 10 percent rating is in order. If extension of the knee is limited to 15 degrees a 20 percent rating is in order. If extension of the knee is limited to 20 degrees a 30 percent rating is in order. Diagnostic Code 5257 provides a 10 percent rating for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020). Diagnostic Code 5258, Cartilage, Semilunar, Dislocated, provides a 20 percent rating for frequent episodes of locking, pain, and effusion. 38 C.F.R. § 4.71a, Diagnostic Code 5258 (2020). The terms “mild,” “moderate,” “moderately severe” and “severe” are not defined in the Rating Schedule. 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 (2020). The use of terminology such as “mild” or “moderate” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2020). VA General Counsel has also held that separate ratings may be assigned in cases where a service-connected knee disability includes both a compensable limitation of flexion under Diagnostic Code 5260, and a compensable limitation of extension under Diagnostic Code 5261 provided that the degree of disability is compensable under each set of criteria. VAOPGCPREC 09-04; 69 Fed. Reg. 59990 (2004). The basis for the opinion was a finding that a limitation in planes of movement were each compensable. Id. A claimant who has arthritis and instability of the knee may also be rated separately under Diagnostic Code 5003 and Diagnostic Code 5257, and rating a knee disability under both of those codes does not amount to pyramiding under 38 C.F.R. § 4.14 (2020). VAOPGCPREC 23-97 (July 1, 1997), 62 Fed. Reg. 63604 (1997); Esteban v. Brown, 6 Vet. App. 259 (1994). However, a separate rating must be based on additional compensable disability as when a knee disorder is already rated under Diagnostic Code 5257, the veteran must also have limitation of motion under Diagnostic Code 5260 or 5261 in order to obtain a separate rating for arthritis. If the veteran does not at least meet the criteria for a zero percent rating under either of those codes, there is no additional disability for which a rating may be assigned. For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Factual Background and Analysis The Veteran underwent a VA examination in March 2009. The examiner noted that the Veteran had in-service meniscus surgery and 2 additional surgeries after service. The Veteran had continued pain and had a limp. He occasionally used a cane with minimal relief. He lost strength and was having difficulty doing his work. He had fatigue and no endurance. He had no flare-ups or incoordination. He did have some instability and used a brace for the instability with minimal relief. On examination, he had a limping gait. Flexion was from 0 to 80 degrees with 0 degrees extension and mild pain. He had mild effusion and crepitation. He had mild instability on varus and valgus pressure. With repetitive motion there was no change in range of motion, coordination, weakness, endurance, fatigue or pain level. The Veteran underwent a VA examination in January 2011. The Veteran presented with complaints of left knee pain. He also had painful clicking and popping as well as feelings of giving way that caused him to fall. He had feelings of locking and had swelling. There was no heat or redness. He had undergone 5 surgeries on his left knee but was not currently under any treatment from any medical advisor. He did not use any braces or assistive devices but would like to get a new brace. His walking was limited to ½ mile to a mile and he could stand for 45 minutes. He could take care of all basic activities of daily living but had difficulty dressing. He also had difficulty getting in and out of the shower but did not require assistance for this. He had flare-ups once every 3 days causing him to stop activity and lie down. On examination, his gait was slightly antalgic and there was palpable crepitus on range of motion testing. Flexion was from 0 to 80 degrees with pain at 80 degrees. The knee was stable to varus stress but there was increased laxity on valgus stress. There was no swelling, heat or redness. There was tenderness to palpation along the medial joint line at the surgical site. He did not exhibit any additional loss due to pain, fatigue, weakness, incoordination or lack of endurance on repetitive motion. He did however complain of mildly increased pain on repetitive motion testing. The diagnosis was left knee medial collateral ligament tear status post-surgery and left knee instability and left knee degenerative joint disease. The Veteran underwent a VA examination in September 2019. The diagnosis was a left knee injury with traumatic arthritis. He reported flare-ups as about twice a month his pain increased to 8/10 and was located to the front and the back of the knee. This was unrelated to activity and typically lasted about a week to 10 days. Straightening and bending the knee was limited due to pain and he used a cane to help walk during flare-ups. He had functional loss as walking, climbing, stooping, bending, weightbearing and knee flexion increased the pain. On examination, flexion was from 10 to 100 degrees and extension was from 100 to 10 degrees. Range of motion itself contributed to functional loss as there was limited flexion and bending of the knee. There was no evidence of pain with weight bearing and no tenderness on palpation. There was objective evidence of crepitus. The Veteran was able to perform repetitive use testing with no additional loss of range of motion after 3 repetitions. Pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time as the Veteran estimated a 15 percent loss in range of motion depending on the duration and intensity of his use during the day. The examiner noted that a review of the available treatment records provided no basis upon which to offer additional quantitative estimations of range of motion limitations after repetitive use over time. Pain, weakness, fatigability or incoordination significantly limited functional ability with flare-ups as the Veteran estimated a 30 percent loss in flexion and extension during flare-ups. The examiner noted that a review of the available treatment records provided no basis upon which to offer additional quantitative estimations of range of motion limitations during flare-ups. Muscle strength testing revealed active movement against some resistance (4/5) on left knee flexion as there was a reduction in muscle strength. There was no muscle atrophy and no ankylosis. Joint stability testing was normal for the right and left knees and there was no history of recurrent effusion. The Veteran had a meniscal condition and had frequent episodes of joint pain. He occasionally used a cane. The Veteran’s left knee disability impacted his ability to work as his knee pain would reduce efficiency due to limitations in bending, walking and during prolonged standing. Per the July 2020 Board remand instructions, the Veteran underwent a VA examination in August 2020. The diagnosis was left knee injury with traumatic arthritis and instability, status post arthroscopy. The Veteran presented with current complaints of an unstable gait, a grinding sensation and his left knee constantly getting worse with activity, walking and prolonged standing. He had flare-ups as cold weather increased his pain. He had functional loss as it was difficult to bend and squat for activities of daily living. On examination, flexion was from 0 to 120 degrees and extension was from 120 to 0 degrees. The range of motion itself contributed to functional loss as the Veteran found it hard to bend and squat for activities due to his limited range of motion. There was objective evidence of localized pain or tenderness. There was evidence of pain with weight bearing and evidence of crepitus. The Veteran was able to perform repetitive use testing with no additional loss of range of motion after 3 repetitions. Pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time as the examiner found that flexion was from 0 to 115 degrees and extension was from 115 to 0 degrees with repeated use over a period of time. Pain, weakness, fatigability or incoordination significantly limited functional ability during flare ups as the examiner found that flexion was from 0 to 115 degrees and extension was from 115 to 0 degrees during flare-ups. Muscle strength testing was normal. There was no muscle atrophy and no ankylosis. Joint stability testing was normal for the right and left knees and there was no history of recurrent effusion. The Veteran had a meniscal condition and had frequent episodes of joint pain. He occasionally used a brace. The Veteran’s left knee disability impacted his ability to work as prolonged walking and standing increased his left knee pain. Upon review of all relevant evidence of record, the Board finds that the disability picture associated with the Veteran’s left knee does not meet or more nearly approximate the criteria for an evaluation greater than 30 percent under Diagnositic 5257. As noted above, a 30 percent rating under Diagnostic Code 5257 is the maximum rating available under this Diagnostic Code. Regarding separate evaluations based on arthritis, arthritis has been demonstrated by x-ray readings. The Board again notes that when a knee disorder is already rated under Diagnostic Code 5257, the Veteran must also have limitation of motion under Diagnostic Code 5260 or 5261 in order to obtain a separate rating for arthritis. As noted above, a compensable evaluation under Diagnostic Code 5260 or 5261 requires either flexion limited to 45 degrees or extension limited to 10 degrees. In this instance the Veteran does not meet the criteria for a zero percent rating under Diagnostic Code 5260 as a compensable evaluation under Diagnostic Code 5260 requires flexion limited to 45 degrees which has not been demonstrated even when accounting for DeLuca factors. The Board notes that the VA examinations noted reported flare-ups of knee pain. However, to the degree that he has reported his left knee feeling pain, stiffness, incoordination, and weakness, the Board notes that on the most recent August 2020 VA examination, the Veteran’s flexion of the left knee was from 0 to 115 degrees with repeated use over a period of time and during flare-ups. Therefore, even considering functional limitations of a decrease in range of motion with repeated use over a period of time and during flare-ups, the adjusted range of motion would not equate to a compensable rating under Diagnostic Code 5260. Additionally, the examination found no signs of edema, redness, heat, deformity, malalignment or drainage. There was also no subluxation, no genu recurvatum or crepitus. The Board again acknowledges that the Veteran has pain and less movement than normal. This is well documented in the lay and medical evidence. Furthermore, the Board again accepts that he has functional impairment, pain and limited motion as demonstrated at the VA examinations. See DeLuca, supra. The Board further finds that the Veteran’s own reports of symptomatology to be credible. However, neither the lay nor medical evidence reflects the functional equivalent of impairment required for a compensable evaluation based on limitation of flexion. Therefore, even when considering functional limitations due to pain and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, the Board finds that the Veteran has not exhibited a compensable level of limitation of flexion under Diagnostic Code 5260. 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.45, 4.71a; DeLuca. Accordingly, a separate rating based on limitation of flexion is not warranted. However, considering the evidence of record in light of the above, and resolving all reasonable doubt in the Veteran’s favor, the Board finds that a separate 10 percent rating for limited extension of the left knee is warranted. Notably, on VA examination in September 2019 flexion of the left knee was from 10 to 100 degrees and extension was from 100 to 10 degrees. The examiner also found that the Veteran estimated a 30 percent loss in extension during flare-ups which would result in extension approximately from 13 degrees. Accordingly, a separate 10 percent rating, but no higher, for the left knee based on limited extension is warranted under Diagnostic Code 5261 as a result of the consideration of functional loss after a flare-up which resulted in extension from 13 degrees. See, DeLuca. The Board has also considered the applicability of Diagnostic Code 5258 for dislocated semilunar cartilage. Here, the record indicates that the Veteran has had a left knee meniscal tear with evidence of locking, pain, and effusion. However, the Board finds that the Veteran may not be assigned a separate rating under Diagnostic Code 5258 as this would constitute pyramiding under 38 C.F.R. § 4.14. Locking, pain, and effusion are factors that may be contemplated when rating ROM. See 38 C.F.R. §§ 4.45, 4.59. Here, the Veteran’s meniscus symptomatology is already contemplated and compensated by the Veteran’s current disability ratings under Diagnostic Code 5257 and Diagnostic Code 5261. Therefore, assigning a separate rating under Diagnostic Code 5258 in combination with the Veteran’s current ratings for Diagnostic Code 5257 or Diagnostic Code 5261 would violate the prohibition against pyramiding. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261 (1994) (the critical element is that none of the symptomatology for any condition is duplicative of or overlapping with the symptomatology of the other condition). Regarding a higher rating under Diagnostic Code 5258, the Board notes that the Veteran’s current 20 percent rating is the maximum available under Diagnostic Code 5258. The Board also notes that the RO referred the Veteran’s claim for extraschedular consideration by the Director of Compensation and Pension Service in accordance with 38 C.F.R. § 3.321(b) in light of the Veteran’s report that he was unable to work due to his left knee disability. In December 2020, the Director of Compensation and Pension Service issued an Advisory Opinion on the matter. The Director ultimately found that the evidentiary record failed to show an exceptional disability pattern for the service-connected left knee disability that rendered application of the regular rating criteria as impractical. See Thun v. Peake, 22 Vet. App. 111 (2008). In making this determination, the Director noted that there is no indication that the Veteran has been hospitalized for any extended periods of time due to the left knee condition. The Director determined that none of the available evidence supports the Veteran’s contention that his left knee condition warrants an extra schedular evaluation. As this issue has been considered by the Director in the first instance, the Board now has jurisdiction to consider the issue. Based on thorough consideration of the evidence, the Board finds that the Veteran’s disability picture is not so exceptional or unusual as to render impractical the application of the regular schedular criteria. In so finding, the Board acknowledges that the symptoms of the Veteran’s left knee disability included constant pain and limitation of motion which impacted his ability to work as he had difficulty bending and squatting. However, all of these factors, including economic inadaptability, are considered in the assignment of the 30 percent rating under Diagnostic Code 5257. In the instant case, the Board has carefully compared the level of severity and symptomatology of the Veteran’s service-connected left knee disability on appeal with the established criteria found in the rating schedule. The Board finds that the Veteran’s symptomatology is fully addressed by the rating criteria under which such disability is rated. Therefore, the Board finds that the rating criteria reasonably describe the Veteran’s disability level and symptomatology of his service-connected left knee disability. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran’s disability picture. In this regard, there is nothing exceptional or unusual about the Veteran’s disability because the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet. App. at 115. Accordingly, the Board need not proceed to consider the second factor, whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. In light of the opinion of the Director, Compensation and Pension Service, and the analysis herein, the Board finds that 38 C.F.R. § 3.321 is inapplicable and thus an extraschedular is not warranted. Accordingly, the Board finds that a rating in excess of 30 percent for a left knee disability stability to include on an extraschedular basis is not warranted. REASONS FOR REMAND Following a review of the Veteran’s claims file, the Board finds that further development is required prior to the adjudication of the claim for entitlement to a TDIU. As noted above, the issue of entitlement to an initial rating in excess of 10 percent for degenerative disc disease of the lumbar spine will be addressed by the AOJ under the AMA and is not currently before the Board. Consideration of entitlement to a TDIU is dependent upon the impact of the Veteran’s service-connected disabilities on his ability to obtain or retain substantially gainful employment. Accordingly, the matter of entitlement to a TDIU is inextricably intertwined with the Veteran’s AMA claim regarding entitlement to an initial rating in excess of 10 percent for degenerative disc disease of the lumbar spine. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless all issues have been considered). Accordingly, adjudication of the claim for entitlement to a TDIU must be deferred pending completion of adjudication for entitlement to an initial rating in excess of 10 percent for degenerative disc disease of the lumbar spine. The matters are REMANDED for the following action: After AMA adjudication of the issue of entitlement to an initial rating in excess of 10 percent for degenerative disc disease of the lumbar spine, the RO must readjudicate the issue of entitlement to TDIU. If the benefit is not granted, the Veteran must be furnished with a supplemental statement of the case, with a copy to his representative, and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James A. DeFrank, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.