Citation Nr: 22009455 Decision Date: 02/17/22 Archive Date: 02/17/22 DOCKET NO. 17-37 244 DATE: February 17, 2022 ORDER Entitlement to a rating in excess of 10 percent for patellofemoral pain syndrome of the right knee is denied. Entitlement to a separate 10 percent rating for recurrent subluxation/instability associated with patellofemoral pain syndrome of the right knee is granted. REMANDED Entitlement to a total disability rating due to individual unemployability based upon service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's right knee patellofemoral syndrome has been manifested by flexion limited to 50 degrees and extension limited to zero degrees both at worst and with pain, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups; without lateral instability, effusion, ankylosis, or genu recurvatum. 2. Throughout the period on appeal, the patellofemoral pain syndrome of the right knee manifested as slight recurrent subluxation/instability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for patellofemoral pain syndrome of the right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.71, Diagnostic Code 5260. 2. The criteria for a separate 10 percent rating for recurrent subluxation/instability associated with patellofemoral pain syndrome of the right knee have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.71, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2006 to January 2010. These matters come before the Board of Veterans' Appeals (hereinafter Board) on appeal from an October 2014 rating decision of the Regional Office (RO) in Indianapolis, Indiana, which denied the Veteran's claim for a rating in excess of 10 percent for right knee patellofemoral pain syndrome. He perfected a timely appeal to that decision. In December 2020, the Veteran testified before the undersigned Veterans Law Judge during a virtual hearing. A copy of the transcript is of record. In April 2021, the Board remanded instant matter to the RO for further evidentiary development. Specifically, the Board remanded to obtain updated VA treatment records and to obtain an examination to determine the current severity of his right knee patellofemoral pain syndrome. Updated VA treatment records have been associated with the record and a May 2021 letter requested that the Veteran complete an appropriate authorization form to allow VA to obtain treatment records on his behalf. A VA knee examination was conducted in December 2021. The Board therefore determines that there has been substantial compliance with its previous remand. As explained below, the issue of entitlement to a TDIU has been raised by the record and has been added to the appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453, 54 (2009) (holding that a request for a TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation). Increased Rating 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. 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. Reasonable doubt as to the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. It is permissible to switch diagnostic codes to reflect more accurately a claimant's current symptoms. See Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011). 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 concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disability. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45 but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to a rating in excess of 10 percent for patellofemoral pain syndrome of the right knee The Veteran contends that his right knee patellofemoral syndrome is more severely disabling than reflected in the currently assigned rating. At his Board hearing in December 2020, the Veteran testified that his right knee patellofemoral syndrome had worsened since his last examination. Specifically, the Veteran reported that he experiences instability in the right knee as well as painful motion. The Veteran testified that he noticed a lot of instability especially with going up or down stairs and that his right knee usually feels like it's about to give out; he noted that he had trouble using. The Veteran also reported having some swelling in the right knee. The Veteran's right knee patellofemoral pain syndrome is currently evaluated as 10 percent disabling under Diagnostic Code 5260 for limited leg flexion. 38 C.F.R. § 4.71a. Under Diagnostic Code 5260 where flexion is limited to 45 degrees, a 10 percent rating is assigned. When flexion is limited to 30 degrees, a 20 percent rating is assigned; and when flexion is limited to 15 degrees, a 30 percent rating is assigned. 38 C.F.R. § 4.71a. Separate ratings may be assigned for disability of the same joint under Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg). VAOPGCPREC 9-04. Specifically, where a veteran has both a limitation of flexion and a limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. Under Diagnostic Code 5261, where extension is limited to 10 degrees, a 10 percent rating is assigned. When extension is limited to 15 degrees, a 20 percent rating is assigned; when limited to 20 degrees, a 30 percent disabling is assigned; when limited to 30 degrees, a 40 percent rating is assigned and when extension is limited to 45 degrees, a 50 percent rating is assigned. Id. Normal range of motion in the knee is zero degrees of extension and 140 degrees of flexion. See 38 C.F.R. § 4.71a, Plate II. Diagnostic Code 5257 addresses recurrent subluxation or lateral instability of the knee. Under that code, a 30 percent rating is for application where subluxation or lateral instability is severe. A 20 percent rating is for application where subluxation or lateral instability is moderate. A 10 percent rating is for application where subluxation or lateral instability is slight. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Court has held that nothing in Diagnostic Code 5257, under the pre-amendment rating criteria, provided that objective medical evidence is required or is to be favored over lay evidence in determining whether to assign a rating for lateral instability of the knee. English v. Wilkie, 30 Vet. App. 347, 349 (2018). The Board notes that effective February 7, 2021, the criteria for schedule of ratings for the musculoskeletal system was revised. See 86 Fed. Reg. 8142 (Feb. 4, 2021) (codified at 38 C.F.R. pt. 4). In the instant case, the applicable rating period occurred before the implementation of these revised diagnostic criteria with regard to all evidence submitted after February 7, 2021. Therefore, the February 2021 musculoskeletal criteria apply to aspects of the Veteran's claims on appeal; and the appropriate criteria is discussed below. The Board also notes that the criteria under Diagnostic Code 5260 was not revised and the former and revised diagnostic criteria are identical. VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. As of February 7, 2021, under the amended criteria, Diagnostic Code 5257 evaluates knee, other impairment of, which may be rated under separate criteria for recurrent subluxation or instability or, alternatively, patellar instability. Under the amended criteria for rating patellar instability, a 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker warrants a 20 percent rating. A maximum 30 percent rating is warranted for a diagnosed 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. Diagnostic Code 5257, Note (1), as amended, defines the patellofemoral complex as consisting of the quadriceps tendon, the patella, and the patellar tendon. Note (2) instructs that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Separate ratings can be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology; this includes separate ratings based on limitation of flexion (Diagnostic Code 5260), limitation of extension (Diagnostic Code 5261), lateral instability or recurrent subluxation (Diagnostic Code 5257), and meniscal conditions (Diagnostic Codes 5258, 5259). See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 29 Vet. App. 107 (2017). In June 2014, the Veteran filed a claim for an increased rating for the right knee. In conjunction with his claim, the Veteran was afforded a VA examination in October 2014. At that time, the Veteran reported having right knee pain on an intermittent basis; he described the pain as a throbbing type pain, which he rated as a 6 to 7 out of 10. The Veteran indicated that his right knee pain was exacerbated by climbing stairs and bending; he stated that the pain is improved by avoiding stairs. The Veteran stated that he did not take any type of medication for his right knee. The Veteran stated that it hurts to walk; he stated that it feels like it is going to pop or something. Range of motion was from zero degrees to 140 degrees, with no objective evidence of painful motion. The Veteran was able to perform repetitive use testing with three repetitions. The Veteran did not have additional limitation in range of motion following repetitive use testing; he did not have any functional loss or functional impairment of the knee. There was no pain on palpation or tenderness of the right knee. Muscle strength testing was 5/5. The medial/lateral collateral ligaments stability test, the anterior/posterior cruciate ligaments stability test and the medial/lateral meniscus stability test are all within normal limits for the right knee. There was no evidence or history of recurrent patellar subluxation or dislocation. X-ray study of the right knee was normal. The diagnosis was patellofemoral syndrome, right knee. The Veteran was afforded a VA examination to assess his service-connected right knee patellofemoral pain syndrome in May 2019. At that time, the Veteran reported intermittent daily pain in both knees, with pain in the distal femoral aspect. The Veteran indicated that the pain was induced by prolonged standing, walking, running and climbing inclines; no swelling was reported or diagnosed. Range of motion was from zero degrees to 140 degrees, with no pain noted on examination. There was no objective evidence of tenderness or pain on palpation of the right knee. There was no evidence of pain with weight bearing; there was no objective evidence of crepitus. The Veteran was able to perform repetitive use testing with three repetitions. The Veteran did not have additional limitation in range of motion following repetitive use testing. There was no pain on palpation or tenderness of the right knee. It was noted that right knee pain caused interference with standing and pain with prolonged standing and walking. Muscle strength testing was 5/5. No muscle atrophy was noted. No ankylosis was noted. There was no history of lateral instability of the right knee. There were no findings of joint instability of the right knee. The right knee anterior instability test result was normal. The right knee posterior instability test result was normal. The right knee medial instability test result was normal. The right knee lateral instability test result was normal. The pertinent diagnosis was patellofemoral pain syndrome and right knee strain. The Veteran did not need the use of any assistive devices. It was noted that the Veteran had lost one week of work in the past 12 months due to his right knee. The examiner indicated that there was no objective evidence of pain on passive range of motion testing of the right knee. There was no objective evidence of pain when the joint was used in non-weight bearing. The examiner further stated that, although the examination was not done "immediately after repetitive use" no decrease in knee range of motion was described or diagnosed. In an addendum to the above examination, dated in June 2019, the VA examiner stated that right knee function was not significantly limited by pain, weakness, fatigability or incoordination. The examiner further indicated that he did not have any basis to offer additional losses of function or motion with repetitive use. He did not have any basis to offer additional losses of motion or function during a flareup. A December 2021 VA Disability Benefits Questionnaire (DBQ) report reflects the Veteran's reports that his right knee gives out going up stairs and with certain maneuvers on a weekly basis. The Veteran related that flareups of the right knee included pain, tenseness, swelling, giving out, and dislocation of the knee; he described the severity of the flareups as moderate to severe, and they lasts days to weeks. The Veteran indicated that the flareups are precipitated by stairs, prolonged walking, and weight bearing, and they are alleviated by rest and anti-inflammatory. Range of motion in the right knee was from zero degrees to 50 degrees. Passive range of motion was the same as active range of motion. There was evidence of pain with weight bearing. There was objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions, but there was no additional loss of function or range of motion after three repetitions. After repetitive use testing, flexion in the right knee was 50 degrees. No muscle atrophy was noted. No ankylosis was noted. The pertinent diagnosis was patellofemoral pain syndrome, right knee and right patellar subluxation. The Veteran did not need the use of any assistive devices. The examiner noted that there were no findings of chronic exertional compartment syndrome of the right lower extremity. There was slight recurrent subluxation of the right knee. There was no history of lateral instability of the right knee. There were no findings of joint instability of the right knee. The right knee anterior instability test result was normal. The right knee posterior instability test result was normal. The right knee medial instability test result was normal. The right knee lateral instability test result was normal. A review of the record shows that the Veteran receives treatment at the VA Medical Center for various disabilities. However, there is no indication from the record that her right knee symptoms are manifestly different than those reported at the above-mentioned examinations. After careful review of the evidentiary record, the Board finds that a rating in excess of 10 percent for patellofemoral pain syndrome of the right knee is not warranted. Significantly, right knee range of motion and stability were tested multiple times throughout the appellate period, including during VA examinations in October 2014, May 2019, and December 2021. Right knee flexion was limited, at worst, to 50 degrees and extension was full, which was found during the December 2021 VA examination. At no time during the period on appeal has the Veteran's right knee patellofemoral pain syndrome been manifested by flexion limited to 30 degrees or extension limited to 20 degrees. While the Veteran reported that he experiences functional impairment with standing, walking and climbing and certain maneuvers involving the right knee during the December 2021 examination, the evidence does not demonstrate that this level of impairment occurred at such a frequency that his right knee patellofemoral pain syndrome would more nearly approximate a compensable level of limited motion. Accordingly, a higher rating is not warranted on the basis of limitation of flexion. 38 C.F.R. § 4.71a, Diagnostic Codes 5260. In considering range of motion ratings, it is important to consider whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, supra. A minimum compensable evaluation for a joint disability is warranted for painful motion under 38 C.F.R. § 4.59. Here, the evidence shows that Veteran has painful motion in his right knee. As such, a minimum compensable rating for the right knee has been assigned. As 10 percent rating is already assigned for the right knee to compensate for the pain, a rating in excess of 10 percent for the right knee is not warranted in the absence of evidence showing that the limitation of range of motion has reached the level of the 20 percent rating. See Mitchell v. Shinseki, supra. Pursuant to VAOPGCPREC 9-04, the Board has also considered whether the Veteran is entitled to higher or separate ratings under Diagnostic Code 5261 pertinent to limitation of extension of the knee. As indicated previously, a 20 percent rating requires a finding of extension limited to 15 degrees. The Veteran's range of motion testing revealed normal extension to zero degrees consistently throughout the appeal, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups. See DeLuca v. Brown, supra; Mitchell v. Shinseki, supra. Therefore, a separate rating based on limitation of extension for the right knee is not warranted. The Board has also considered whether a separate rating is warranted for the right knee on the basis of recurrent subluxation or lateral instability. A December 2021 VA DBQ report found that there was slight subluxation in the right knee. Previous examinations conducted in October 2014 and May 2019, were negative for such findings. In addition, the Veteran has reported that his knee was unstable or "gave out" during the appeal period. Therefore, a separate 10 percent rating is warranted for recurrent subluxation/instability associated with the patellofemoral pain syndrome of the right knee. A higher rating is not warranted as objective evidence of instability was not found on VA examinations conducted in October 2014, May 2019 and December 2021. The May 2019 and December 2021 VA examiners specifically found that the Veteran's anterior instability test, posterior instability test, medial instability test and lateral instability tests to be normal. In addition, the Veteran has not been prescribed an assistive device such as a brace, cane, or walker. There is also no evidence of impairment of the tibia and fibula, genu recurvatum, or dislocation of the semilunar cartilage of the right knee to warrant a separate rating under Diagnostic Codes 5258, 5262, and 5263. Diagnostic studies have not shown these abnormalities, and they have not been reported elsewhere in the record. Moreover, as the Veteran has retained motion in his right knee throughout the period on appeal, by definition he does not have ankylosis. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992) (indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable). Therefore, Diagnostic Code 5256 is not for application in this case. Finally, the Board has considered the effects of repeated use over time and flare-ups along with the adequacy of the VA examinations in light of the Court's holdings in Correia and Sharp. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). In this case, the October 2014 VA examination occurred before these holdings and hence contains partial information. The May 2019 and December 2021 VA examinations measured active and passive range of motion as well as on weight-bearing and nonweight-bearing. Regarding repeated use over time and flare-ups, the Board notes that VA examiners conducted repetitive-use testing and concluded that there was no additional limitation in range of motion that would push the Veteran's rating to a higher rating. Therefore, the Board finds that all information required for rating purposes was provided. In this regard, the Board notes that the examiners clearly noted that the Veteran specifically reported pain and flare-ups with prolonged walking, bending and climbing stairs. There is no other indication from the record, to include the Veteran's own statements, that he experiences additional decreased range of motion, weakness, or incoordination during flare-ups or following repeated use other than shown above. As the Veteran has not endorsed those symptoms, the Board finds the examinations of record to be adequate for rating purposes. See Correia v. McDonald, supra; see also Sharp v. Shulkin, supra. In reaching its conclusions, the Board acknowledges the Veteran's belief that his right knee patellofemoral pain syndrome is more severe than is reflected by the currently assigned rating. The Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to provide evidence regarding his symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Ultimately, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disability in light of the rating criteria to be more persuasive than his reports regarding the severity of his right knee patellofemoral pain syndrome. The Board has considered whether a staged rating under Hart v. Mansfield, supra, are warranted, however, the Board finds that the Veteran's symptomatology has been stable throughout the period on appeal. Therefore, assigning a staged rating is not warranted. Furthermore, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the increased rating claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In summary, the Board finds that the criteria for a rating in excess of 10 percent for right knee patellofemoral pain syndrome is not warranted and that a separate 10 percent rating for recurrent subluxation/instability associated with patellofemoral pain syndrome of the right knee is warranted. To that extent, the appeal is granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. REASONS FOR REMAND Entitlement to a TDIU is remanded. The Veteran has alleged that he is unable to work due to his service-connected right knee patellofemoral syndrome. Specially, during the December 2021 VA examination, the Veteran reported that he had to resign from the United States Postal Service due to his knee condition and that it prevented him from working. The Veteran has not been provided proper notice regarding a TDIU claim, and therefore the RO should provide proper notice in accordance with 38 C.F.R. § 3.159 (b). The matter is REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Request that the Veteran complete an VA Form 21-8940 and furnish the Veteran with proper notice on how to substantiate his claim for a TDIU. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Suzie S. Gaston, 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.