Citation Nr: 21040513 Decision Date: 07/05/21 Archive Date: 07/05/21 DOCKET NO. 15-40 757 DATE: July 5, 2021 ORDER Entitlement to service connection for a neck disability is granted. Entitlement to an increased evaluation in excess of 10 percent for left knee anterior cruciate ligament (ACL) tear (limitation of motion) is denied. A separate 20 percent evaluation for left knee disability (instability) 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 cervical spondylosis manifested during the one-year presumptive period following active service. 2. Throughout the period on appeal, the Veteran's left knee ACL tear manifested by no more than intermittent pain of the left knee with flexion limited to 130 degrees. 3. The Veteran has a separate left knee disability manifested by instability requiring the use of a knee brace and cane. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for cervical spondylosis are met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for an increased evaluation in excess of 10 percent for left knee ACL tear, post-operative, (limitation of flexion) are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1 4.7, 4.21, 4.40, 4.59, 4.71a, Diagnostic Code 5003, 5260. 3. The criteria for a separate rating of 20 percent for a left knee disability (instability) are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1 4.7, 4.14, 4.21, 4.40, 4.59, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1979 to September 1994. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran testified at a November 2018 hearing held before the undersigned at the RO. A transcript of the hearing is associated with the claims file. These issues have been before the Board previously, most recently in November 2019. In its November 2019 decision, the Board denied the Veteran's claims for entitlement to an increased evaluation for his left knee anterior cruciate ligament tear and for entitlement to service connection for a neck disability. The Veteran appealed the Board's decision to the Court of Appeals for Veterans Claims (Court). In January 2021, the parties agreed to a Joint Motion for Remand (JMR). The Court vacated the Board's decision and remanded the matter to the Board for action consistent with the JMR. Specifically, the matters were remanded because the parties agreed that the Board erred in not providing an adequate statement of reasons and bases for its determinations. The Court also found that Board did not explicitly consider whether the issue of entitlement to TDIU was reasonably raised by the record and remanded this issue for readjudication consistent with the Court's holding in Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The issue of entitlement to TDIU has been added to the title page to reflect the Board's jurisdiction over this matter. Id. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case. Appropriate notice was provided in December 2012. The RO associated the Veteran's service and VA private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. Appropriate and necessary examinations were afforded the Veteran, and are adequate for evaluation, as they include needed findings to permit application of the rating schedule and identification of current disability. As such, VA has satisfied its duet to assist with the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection on a direct basis, the record requires competent evidence showing: (1) the existence of a present disability; (2) in service incurrence or aggravation of an injury or disease; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Some chronic diseases may be presumed to have been incurred in service if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101 (3), 1112(a); 38 C.F.R. §§ 3.307 (a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Arthritis, with a presumptive period of one year following separation from service, is a listed condition. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence, the benefit of the doubt is afforded the claimant. The Veteran asserts his neck disability is related to his time in service. The Veteran's service treatment records reflect treatment for complaint of neck pain in service. He was diagnosed with neck strain. There is no record of a neck disability on the Veteran's July 1994 separation examination. The Veteran underwent a VA joints examination in October 1994. The VA examiner noted the Veteran's history of neck and upper back pain for several years. X-rays of the cervical spine revealed joint space narrowing at the C5-C6 level and an anterior hypertrophic osteophyte. Impression was mild joint space narrowing and osteophyte at C5-C6 which appear degenerative. The VA examiner noted that the Veteran's history and physical examination were consistent with chronic cervical strain. The evidence shows the Veteran was diagnosed with mild joint space narrowing and an osteophyte at C5-C6 which appeared degenerative, one month after his discharge from active duty. As arthritis is considered a chronic disease entitled to presumptive service connection when manifesting within a year from separation from service, service connection for the Veteran's cervical spondylosis is warranted. 38 C.F.R. §§ 3.307, 3.309. Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 - 127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahuna v. Shinseki, 24 Vet. App. 428, 435 (2011). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. The intent of the rating schedule is to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. There are numerous Codes which are potentially applicable to evaluation of knee disabilities. The Board notes that the rating criteria for musculoskeletal disorders were revised on February 7, 2021. The amended regulations became effective on February 7, 2021 and claims that were pending on this date must be considered under the former and revised criteria with the most favorable version applied to the claim. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (now codified at 38 C.F.R. § 4.71a, Codes 5256, 5257, 5258, 5259, 5260, 5261, 5262). Code 5256 is utilized for evaluation of ankylosis or the functional equivalent; as there is motion of the left knee, this Code is not applicable here. Code 5257 evaluates disabilities of the knee based on the degree of subluxation and instability of the joint. Under the former criteria, a 10 percent evaluation is assigned for slight, recurrent subluxation or lateral instability of the knee. A 20 percent evaluation is assigned for moderate recurrent subluxation or lateral instability of the knee. A 30 percent evaluation is assigned for severe recurrent subluxation or lateral instability of the knee. 38 C.F.R. § 4.71a, Code 5257. Pursuant to the new criteria, Code 5257, recurrent subluxation or lateral instability, assigns a 10 percent evaluation for sprain, incomplete ligament tear or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent evaluation is assigned for either (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g. cane(s), crutch(es), walker) for ambulation; or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g. cane(s), crutch(es), walker) or bracing for ambulation. A 30 percent evaluation is assigned for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. 38 C.F.R. § 4.71a, Code 5257 (Effective February 7, 2021). Additionally, pursuant to the new criteria for Code 5257, a 10 percent evaluation is assigned for patellar instability when the condition is diagnosed and involves the patellofemoral complex with recurrent instability (with or without a history of surgical repair) that does not require a prescription from a medical provided for a brace, cane or walker. A 20 percent evaluation is assigned for diagnosed patellar instability involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provided for one of the following: a brace, cane, or walker. A 30 percent evaluation is assigned for a diagnosed patellofemoral instability condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Note (1) to Code 5257 for patellar instability, defines the patellofemoral complex as consisting of the quadriceps tendon, the patella, and the patellar tendon. Note (2) specifies that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). 38 C.F.R. § 4.71a, Code 5257 (Effective February 7, 2021). Code 5258 assigns a 20 percent evaluation for dislocated semilunar cartilage with frequent episodes of "locking" pain, and effusion into the joint. 38 C.F.R. § 4.71a, Code 5258. Code 5259 assigns a 10 percent evaluation for symptomatic removal of semilunar cartilage. 38 C.F.R. § 4.71a, Code 5259. For limitation of motion, there are two potentially applicable Codes; the rating criteria for these codes were unaffected by the new regulations. Code 5260 assigns evaluations based on limitation of flexion. Limitation to 60 degrees merits a noncompensable, or 0 percent, evaluation. A 10 percent evaluation is assigned for limitation to 45 degrees. Limitation to 30 degrees flexion warrants a 20 percent evaluation, and a 30 percent evaluation is assigned for limitation to 15 degrees of flexion. 38 C.F.R. § 4.71a, Code 5260. Limitation of extension is rated under Code 5261. Limitation to 5 degrees merits a noncompensable, or 0 percent, evaluation. A 10 percent evaluation is assigned for limitation to 10 degrees. Limitation to 15 degrees extension warrants a 20 percent evaluation. A 30 percent evaluation is assigned for limitation to 20 degrees of extension. A 40 percent evaluation is assigned for extension limited to 30 degrees. A 50 percent evaluation is assigned for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Code 5261. Under the former criteria for Code 5262, tibia and fibula, impairment of, a 10 percent disability evaluation is assigned for malunion of with slight knee or ankle disability. A 20 percent disability evaluation is assigned for malunion with moderate knee or ankle disability. A 30 percent evaluation is assigned for malunion with marked knee or ankle disability. A 40 percent evaluation is assigned for nonunion of the tibia and fibular with loose motion, requiring brace. 38 C.F.R. § 4.71a, Code 5262. Pursuant to the new criteria for Code 5262, for medial tibial stress syndrome (MTSS), or shin splints, a noncompensable evaluation is assigned for treatment for less than 12 consecutive months, one or both lower extremities. A 10 percent evaluation is assigned for MTSS or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities. A 20 percent evaluation is assigned for symptoms requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. A 30 percent evaluation is assigned for symptoms requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities. Malunion of tibia and fibula is evaluated under Codes 5256, 5257, 5260, or 5261 for the knee, of 5270 or 5271 for the ankle whichever results in the highest evaluation. Nonunion of tibia and fibula with loose motion, requiring brace is assigned a 40 percent evaluation. 38 C.F.R. § 4.71a, Code 5262 (Effective February 7, 2021). The Veteran is seeking an increased evaluation in excess of 10 percent for residuals of left knee ACL tear. The Veteran's left knee ACL is currently evaluated under Code 5260, for limitation of flexion of the leg. In the JMR, the parties agreed that the Board erred in failing to consider and discuss whether the Veteran's ACL tear is "analogous" to the semilunar cartilage or menisci injuries described in Codes 5258 and 5259, such that separate ratings under those Codes may be applicable, and remanded the issue for an adequate statement of reasons and bases that considers such. The Board notes that rating a diagnosed and listed condition by analogy is actually disfavored by the regulations. 38 C.F.R. § 4.20. More appropriately, the Board must consider the potential application of all diagnostic codes to ensure that all manifestations of the service-connected left knee disability are accounted for and compensated. 38 C.F.R. § 4.21; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran underwent a VA knee examination in December 2012. The VA examiner noted that the Veteran has a left knee ACL tear, post-operative, and history of a 1995 surgical repair of left ACL. Subjective complaints included stiffness and constant pain. No flare-ups were reported. Physical examination revealed left knee flexion to 135 degrees, with pain at 135 degrees; extension was to 0 degrees, with no objective evidence of painful motion. Repetitive motion testing resulted in no additional limitation of motion, and no additional functional loss or functional impairment. Tenderness or pain to palpation was noted. Pain on palpation was noted. Muscle strength was 5 out of 5, joint stability testing was normal for anterior instability, posterior instability, and medial-lateral instability. No evidence or history of subluxation or dislocation was present. The VA examiner noted that the Veteran had no semilunar cartilage condition and that the Veteran had not had any meniscal conditions or surgical procedures for a meniscal condition. VA treatment records dated September 2014 indicate the Veteran sought treatment for complaints of left knee pain. He reported giving way and some snapping in the knee about one year earlier, but no effusions or locking. He was walking with a cane and a limp on left leg was noted. Physical examination revealed no effusion, medial collateral ligament and lateral collateral ligament were stable. ACL appeared stable to the clinician and full range of motion of the left knee with no significant pain was observed. The clinician ordered an MRI to rule in or out internal derangement. The MRI was performed in October 2014 and revealed no fracture or dislocation, normal lateral meniscus with small medial and lateral compartment osteophytes. VA treatment records from March through June 2015 show the Veteran received injections for treatment of his left knee pain. VA treatment notes from September through December 2018 indicate the Veteran continued to be treated for left knee was seen for pain and mild osteoarthritis of the left knee. At his November 2018 hearing, the Veteran testified that his left knee disability had worsened. He stated that a knee brace was ordered for him, as well as a cane. He stated that he reported to the medical providers that his knee was still giving out and was painful. He was not able to run and jog any more. He testified that the clinician who gave him knee injections told him he would still have to wear his knee brace and use the cane despite having injections in his left knee. The Veteran reported that he was told that the instability would not go away and that he needed to continue to wear a knee brace. The Veteran reported that he avoided stairs, could only walk for about one block then having to sit down, and that he experienced swelling in his knee. The Veteran stated that his left knee will lock up when sitting down for too long and when bending down. VA treatment records dated March 2019 indicate the Veteran was seen for a fitting for a functional osteoarthritis knee brace. Notes indicate the brace uses a three- point force system to provide in brace correction which will unload or unweight the affected medial or lateral aspect of the knee. Additionally, it is noted that "This brace will slow down the progression of the deformity and or reduce pain." The Veteran underwent a VA knee examination in July 2019. The examiner noted the Veteran's history of ACL tear status post repair. The Veteran reported he had received steroid injections in the past, most recently in October 2018. Subjective complaints included locking and weakness in left knee, and pain on an almost daily basis. He takes Tylenol for pain. Flare-ups were described as occurring approximately three times per week, with an increase in pain to an 8 out of 10. He is unable to identify cause of increase in left knee pain, thinks it may increase with wet and cold weather. Functional loss was reported as difficulty kneeling, walking for prolonged distances and an inability to run. Physical examination revealed range of motion of left knee as follows: flexion to 130 degrees and extension to 0 degrees, pain noted on flexion. No objective evidence of pain with weight bearing, localized tenderness to palpation or evidence of crepitus was noted. Repetitive use testing resulted in no additional limitations of functional ability. Muscle strength was 5 out of 5. No ankylosis, history of joint instability, or semilunar cartilage condition was noted. Joint stability testing was performed on the left knee and no joint instability was present; results for anterior instability, posterior instability, medial instability, and lateral instability were all normal. The VA examiner noted that the Veteran did not now have nor has ever had shin splints, stress fractures or any other tibial and/or fibular impairment. Additionally, the VA examiner noted the Veteran has never had a meniscus (semilunar cartilage condition). The examiner noted that the Veteran used a cane occasionally to assist with ambulation. Left Knee ACL (limitation of motion) The Board has carefully considered all the evidence and potentially applicable diagnostic codes, including the DeLuca factors, and finds that the disability picture of the Veteran's left knee does not warrant a rating in excess of 10 percent pursuant to the criteria associated with Code 5260. The Veteran's range of motion was limited to 130 degrees, at most, with some functional impairment due to constant pain as noted upon the VA examinations. An October 2014 MRI revealed no fracture or dislocation, normal lateral meniscus with small medial and lateral compartment osteophytes. Even with consideration of the DeLuca factors, the Veteran's range of motion on flexion was not limited to 30 degrees which would warrant a higher evaluation of 20 pursuant to Code 5260, and based on the severity of his symptoms, the evidence does not support that a rating in excess of 10 percent is warranted. Left Knee Disability (Instability) The Veteran seeks a higher rating for his service-connected left knee disability diagnosed as left knee ACL repair. The Veteran is currently in receipt of a 10 percent disability evaluation for his left knee, limited flexion under Code 5260. In the JMR, the parties agreed that the Board failed to consider and discuss whether the Veteran's ACL tear is "analogous" to the semilunar cartilage or menisci described in Codes 5258 and 5259. It would be error to rate the knee disability by analogy, however, as; analogy is only used for unlisted conditions. 38 C.F.R. § 4.20. Instead, the Board must more appropriately consider whether there are knee symptoms not considered and rated under the currently applied criteria for Code 5260. Code 5258 provides for assignment of a 20 percent rating for dislocation of the semilunar cartilage, with frequent episodes of "locking," pain, and effusion of the joint. Code 5259 provides for assignment of a 10 percent rating for removal of semilunar cartilage, symptomatic. Codes 5258 and 5259 evaluate impairment of the semilunar cartilage, or menisci. There is no diagnosed meniscal condition, and further, the criteria associated with those Codes are subsumed by other Codes. The pain, locking, effusion and general "symptoms" are included in the currently assigned evaluations, as is discussed further below. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). After a careful review of the medical records, the Board find the Veteran is entitled to a separate 20 percent evaluation for instability requiring the use of a knee brace and a cane. The Board notes that when the Veteran was first granted service connection for his left knee anterior cruciate ligament tear, postoperative, he was assigned a 10 percent disability evaluation under Code 5257, which appeared to be for symptoms of instability. Throughout the years, the Code used to evaluate this disability has changed several times. VA treatment records and hearing testimony reveal the Veteran has complained of giving way, instability, pain, weakness, and swelling of his left knee. In September 2014, the Veteran was using a cane to assist with ambulation. In November 2018, he testified that a knee brace and cane had been ordered for him. In March 2019, the Veteran was fitted for a functional osteoarthritis knee brace. While the clinical findings of VA examinations reveal no instability or laxity of the left knee, it is clear that the Veteran experiences such and that his symptoms are severe enough to warrant prescription of a knee brace and require use of a cane. The Veteran is competent to report the symptoms of his left knee, including instability and giving way. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Additionally, the Board finds the Veteran's statements credible and corroborated by the record, as evidenced by his prescription for a left knee brace and cane. Thus, affording the Veteran the benefit of the doubt, the Board finds that the Veteran is entitled to a separate 20 percent evaluation for his left knee symptoms of instability and giving way under Code 5257. The Board has considered the applicability of other potentially applicable diagnostic criteria for rating the Veteran's left knee but finds that an evaluation under Code 5258 or 5259 is not appropriate as the Veteran has no meniscal damage and has made no allegations of meniscal damage. Additionally, review of the medical evidence of record shows there is no pathology to support assignment of a disability evaluation based on meniscal damage or injury, and there are no persistent complaints of symptoms associated with such. Similarly, an evaluation under Code 5256 is not appropriate as there is no ankylosis, nor under Code 5261 as there is no limitation of extension. A separate 20 percent disability evaluation is warranted for the Veteran's left knee disability, manifested by giving way, instability, pain, weakness and swelling. REASONS FOR REMAND The Court determined that the Board erred by failing to explicitly consider whether the issue of entitlement to TDIU was reasonably raised by the record. The Court noted that the Veteran's vocational rehabilitation counselor stated the Veteran had "not been able to continue his work as a scaffold carpenter and/or truck driver due to issue related to both rated and non-rated conditions" and that his disabilities "impact his employment opportunities and suggest that he would be most successful in employment medium to sedentary range." In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part and parcel of an increased-rating claim when raised by the record, as here. The Board finds it necessary to remand the issue of entitlement to TDIU for initial development and consideration, to include sending appropriate notice to the Veteran. Additionally, the issue of TDIU is inextricably intertwined with the grant of service connection for his claimed neck disability. The matters are REMANDED for the following action: 1. Send the Veteran an application for TDIU (VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability)) and an appropriate notification letter. Conduct any additional, necessary development with regard to the issue of entitlement to TDIU. 2. Then, readjudicate the remanded issue. If the benefit sought remains denied, the Veteran and his representative should be provided with a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Margaret M. Lunger 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.