Citation Nr: 0813837 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 05-01 903 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an increased disability rating for a service- connected right knee disability, currently evaluated as 10 percent disabling under Diagnostic Code 5257 with a separate 10 percent rating under Diagnostic Code 5003. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Morgan, Counsel INTRODUCTION Procedural history The veteran served on active duty from April 1973 until October 1977. In October 2003, the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio received the veteran's claim of entitlement to service connection for a right knee disability. A February 2004 rating decision granted entitlement to service connection for the right knee disability. Effective May 1, 2003, a 20 percent disability rating was assigned under Diagnostic Code 5257. A temporary 100 percent rating was assigned for the period between July 24, 2003 and October 1, 2003 due to surgery, see 38 C.F.R. § 4.29, and a 10 percent disability rating was assigned for the period after October 1, 2003. The veteran disagreed with the February 2004 rating decision only as to the disability rating assigned for the period after October 1, 2003. The appeal was perfected by the timely submission of the veteran's substantive appeal (VA Form 9) in December 2004. This matter was previously before the Board in May 2007. At that time, the appeal was remanded to the RO via the VA Appeals Management Center (AMC) in Washington, DC. for additional development. That development has been completed. In a September 2007 Supplemental Statement of the Case (SSOC) the AMC assigned a separate 10 percent disability rating for arthritis of the veteran's right knee under Diagnostic Code 5010 and continued the 10 percent disability rating under Diagnostic Code 5257 for additional disability of the veteran's right knee. The issue on the title page has been changed to reflect this. Although an increased rating has been assigned, this issue remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993) [when a veteran is not granted the maximum benefit allowable under the Rating Schedule, the pending appeal as to that issue is not abrogated]. Accordingly, the matter has been returned to the Board for further appellate review. FINDING OF FACT The veteran's right knee disability manifests as ligament tenderness and subjective complaints of pain, controlled by over-the-counter medication; with clinical findings of crepitus. Arthritis is shown by x-ray evidence. CONCLUSIONS OF LAW 1. The criteria for disability rating in excess of 10 percent under Diagnostic Code 5257 are not met for the veteran's right knee disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2007). 2. The criteria for a disability rating in excess of 10 percent under Diagnostic Codes 5003-5260 are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.71, 4.71a, Diagnostic Codes 5003, 5260, 5261 (2007). REASONS AND BASES FOR FINDING AND CONCLUSIONS The veteran is seeking entitlement to an increased disability rating for his service-connected right knee disability. Essentially, he contends that the disability is more severe than compensated by the currently assigned rating. In the interest of clarity, the Board will initially discuss certain preliminary matters. The Board will then address the pertinent law and regulations and their application to the facts and evidence. The Veterans Claims Assistance Act of 2000 (VCAA) The Board has given consideration to the provisions of the VCAA. The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. The VCAA alters the legal landscape in three distinct ways: standard of review, notice and duty to assist. The Board will now address these concepts within the context of the circumstances presented in this case. Standard of review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of 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. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2007). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Notice The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to an appellant describing evidence potentially helpful to the appellant but not mentioning who is responsible for obtaining such evidence did not meet the standard erected by the VCAA]. Crucially, the RO advised the veteran of VA's duty to assist him in the development of these claims in a letters dated September 2, 2003 and October 24, 2005. These letters advised the veteran of the provisions relating to the VCAA. Specifically, the veteran was advised in these letters that VA would obtain all evidence kept by the VA and any other Federal agency, including VA facilities and service medical records. He was also informed that VA would, on his behalf, make reasonable efforts to obtain relevant private medical records not held by a Federal agency as long as he completed a release form for such. The letters specifically informed the veteran that for records he wished for VA to obtain on his behalf he must provide enough information about the records so that VA can request them from the person or agency that has them. The October 2005 letter also specifically advised the veteran that in order to qualify for a higher disability rating he must submit evidence showing that his right knee disability has gotten worse. See October 2005 letter, page 5. In the September 2003 and the October 2005 letters, the veteran was specifically notified to send or describe any additional evidence which he thought would support his claim. See the September 2, 2003 VCAA letter, page 2; see also the October 2005 VCAA letter, page 2. These requests comply with the "give us everything you've got" requirements of 38 C.F.R. § 3.159 (b) in that the veteran was informed that he could submit or identify evidence other than what was specifically requested by the RO. In short, the record indicates that the veteran received appropriate notice under 38 U.S.C.A. § 5103. In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. In this case, elements (1), (2) and (3) veteran status, current existence of a disability, and relationship are not at issue. With respect to element (4) degree of disability, the veteran received specific notice as to this element in the October 2005 VCAA letter. Finally regarding element (5), effective date, the veteran received specific notice as to that element in a June 2007 letter. See the June 2007 VCAA letter, pages 2-3. In regards to the increased rating claim, the Board has also considered the Court's recent decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) which held that for an increased-compensation claim, section § 5103(a) requires, at a minimum, that VA notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), VA must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the VA to obtain) that are relevant to establishing entitlement to increased compensation- e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. See Vazquez- Flores, supra. The Board finds that the both the October 2005 and the June 2007 letters to the veteran specifically advised him that an increased disability rating would require a showing that the veteran's condition had worsened. In addition, in the June 2007 letter the RO and invited evidence that would demonstrate limitations in the veteran's daily life and work and advised the veteran as to the use of diagnostic codes. See the June 5, 2007 letter, page 2. The Board notes that neither the October 2005 letter nor the June 2007 letter contained notice of the specific schedular criteria. However, it is apparent from the record that the veteran had actual notice of the applicable criteria. Specifically, the applicable rating criteria for the claimed condition was specifically set out in the October 2004 SOC. Additionally, in December 2004 the veteran submitted documentation from his employer indicating the impact on his life and work. Further, the July 2007 VA examination report discusses at some length the veteran's professional activities and the accommodations he makes due to his service-connected disability. Finally, and significantly, a January 2006 statement of representative in lieu of a VA Form 646 and April 2007 written argument from the veteran's representative specifically quotes the applicable rating criteria. Accordingly, due to the content of the notice given and the veteran's actual knowledge, the Board finds that the veteran has received appropriate VCAA notice for his increased rating claim as contemplated by the Court in Vazquez-Flores. The Board further notes that the veteran's representative has not alleged that the veteran has received inadequate VCAA notice. To the extent that there was inadequate VCAA notice prior to the initial adjudication of the veteran's claims, such has been cured as described above and preceded the September 2007 readjudication of the claim. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) [a timing error may be cured by a new VCAA notification followed by a readjudication of the claim]. The veteran is obviously aware of what is required of him and of VA. Because there is no indication that there exists any evidence which could be obtained which would have an effect on the outcome of this case, no further VCAA notice is necessary. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) [VCAA notice not required where there is no reasonable possibility that additional development will aid the veteran]. In short, the Board concludes that the notice provisions of the VCAA have been complied with to the extent required under the circumstances presented in this case. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate claims for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claims. An examination is deemed "necessary" if the record does not contain sufficient medical evidence for VA to make a decision on the claims. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). Regarding the veteran's claim, the Board finds that reasonable efforts have been made to assist the veteran in obtaining evidence necessary to substantiate his claim, and that there is no reasonable possibility that further assistance would aid in substantiating them. In particular, the RO has obtained the veteran's service medical records, identified private treatment records, employer records and lay statements. The veteran has identified no other relevant medical treatment. He was provided with VA compensation and pension (C&P) examinations in November 2003, February 2005 and July 2007. Accordingly, the Board finds that under the circumstances of this case, the VA has satisfied the notification and duty to assist provisions of the law and that no further actions pursuant to the VCAA need be undertaken on the veteran's behalf. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2007). The veteran and his representative have been accorded the opportunity to present evidence and argument in support of his claim. He did not elect a personal hearing. Accordingly, the Board will move on to a decision on the merits. Pertinent law and regulations Disability ratings - in general Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule), 38 C.F.R. Part 4 (2007). The percentage ratings contained in the 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 civil occupations. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2007). Rating musculoskeletal disabilities The Court has held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 (2007) and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45 (2007). See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that the 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. According to this regulation, it is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. See 38 C.F.R. § 4.40. The provisions of 38 C.F.R. § 4.45 state that when evaluating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 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 (2007). Schedular criteria (i.) Under Diagnostic Code 5257, the following levels of disability are included: Recurrent subluxation or lateral instability: 30 % severe; 20 % moderate; 10% slight. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2007). The Board notes that words such as "slight", "moderate" and "severe" are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2007). (ii.) Arthritis Arthritis, due to trauma, substantiated by X-ray findings will be rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2007). Under Diagnostic Code 5003 [degenerative arthritis], arthritis of a major joint will be rated under the criteria for limitation of motion of the affected joint. For the purpose of rating disabilities due to arthritis, the knee is considered a major joint. See 38 C.F.R. § 4.45 (2007). Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Where, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2007). Under Diagnostic Code 5260, limitation of flexion of the leg provides a non-compensable rating if flexion is limited to 60 degrees, a 10 percent rating where flexion is limited to 45 degrees, a 20 percent rating where flexion is limited to 30 degrees, and a maximum 30 percent rating if flexion is limited to 15 degrees. Under Diagnostic Code 5261, limitation of extension of the leg provides a non-compensable rating if extension is limited to five degrees, a 10 percent rating if limited to 10 degrees, a 20 percent rating if limited to 15 degrees, a 30 percent rating if limited to 20 degrees, a 40 percent rating if limited to 30 degrees, and a 50 percent rating if limited to 45 degrees. Normal range of motion for the knee is defined as follows: flexion to 140 degrees and extension to 0 degrees. See 38 C.F.R. § 4.71, Plate II (2007). Analysis Assignment of diagnostic code The assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in Diagnostic Code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). A veteran who has arthritis and additional disability of the knee may be rated separately, provided that any separate rating must be based upon additional disability. See VAOPGCPREC 23-97. The veteran has been diagnosed with degenerative joint disease (arthritis) of the knee. Additionally, the medical evidence shows that the veteran's knee disability manifests by ligament tenderness due to a history of a torn meniscus. Based upon the medical evidence of record, rating the veteran under Diagnostic Code 5257 as well as under Diagnostic Code 5003 is appropriate. The veteran and his representative have not suggested that the use of any other diagnostic code or codes would be appropriate. Accordingly, Diagnostic Codes 5257 and 5003 (with further consideration of Diagnostic Codes 5260 and 5261) will continue to be employed. Schedular rating (i) Diagnostic Code 5257 The veteran has been assigned a 10 percent disability rating for Diagnostic Code 5257. As has been discussed in the law and regulation section above, this is consistent with "slight" disability. In order to warrant the assignment of the next-higher 20 percent disability rating there must be a showing of a "moderate" disability. The Board observes that, in general, "slight" is defined as "small in amount or extent; not great or intense." See Webster's New World Dictionary, Third College Edition 1262 (1988). "Moderate" is generally defined as "of average or medium quality, amount, scope, range, etc." Id. at 871. "Severe" is generally defined as "of a great degree: serious." Webster's Ninth New Collegiate Dictionary 1078 (1990). During the course of the appeal, the veteran has been referred for three VA C&P examinations. In connection with the November 2003 and February 2005 examinations, the only knee problems identified were mild osteoarthritic changes and crepitus, with subjective reports of pain treated with over the counter medications, ice and rest. Reported strength was 5 out of 5 in July 2007. The February 2005 examiner noted "no significant abnomalities" of the veteran's right knee. There has not been a report of give way since the July 2003 surgery. The veteran's service-connected right knee disability (other than arthritis, which will be discussed immediately below) appears to manifest chiefly as subjective reports of pain and occasional locking which do not appear to significantly interfere with the veteran work or with his quality of life. The veteran continues to work full time and also to participate in a physical hobby, dog training. No examiner has referred to the veteran's right knee disability as moderate or severe. The record shows that the veteran's right knee disability (other than arthritis) is limited to ligamentous tenderness and audible "popping," which causes discomfort but has led to no significant limitation to the function of the knee. Those rather minor symptoms do not appear to result in, or approximate, a "moderate" compromise to the veteran's functions. In the absence of a moderate disability, the next higher 20 percent disability rating is not for application. The Board has also considered the highest 30 percent disability rating. However, because a "moderate" right knee disability has not been shown, a "severe" disability is manifestly not shown or approximated. Accordingly, the 10 percent disability rating will be continued under Diagnostic Code 5257. (ii.) Arthritis The medical evidence of record clearly indicates that there has been x-ray evidence of arthritis. As described above, rating under Diagnostic Code 5003 involves rating in turn under Diagnostic Code 5260 and 5261. If compensable ratings may not be assigned under either diagnostic code, then a 10 percent rating is assigned. The veteran does not have right knee flexion limited to 45 degrees, which would warrant a compensable evaluation by the application of Diagnostic Code 5260. The July 2007 examination report indicated that flexion was to 50 degrees without pain and to 60 degrees with pain. This is the most significant limitation of flexion in the record: a February 2005 report of the veteran's private treating physician shows flexion to 110 degrees, and 125 degrees was shown in November 2003. The July 2007, February 2005 and November 2003 examination reports each found full extension, which comports with the assignment of a noncompensable disability rating under Diagnostic Code 5261. A veteran may receive separate ratings under Diagnostic Code 5260 and 5261 for limitation in both flexion and extension. See VAOPGCPREC 9-2004. In this case, as has been discussed above there is no evidence that either extension or flexion is compensably disabling. Thus, a separate compensable rating under either Diagnostic Code is not warranted. In short, because the competent medical evidence of record includes x-ray evidence of arthritis, with noncompensable loss of range of flexion and extension, the 10 percent disability rating assigned under Diagnostic Code 5003-5260 is appropriate and will be continued. DeLuca considerations The Board has considered the applicability of 38 C.F.R. §§ 4.40 and 4.45. The Court has held that where a diagnostic code is not predicated on a limited range of motion alone, such as with Diagnostic Code 5257, the provisions of 38 C.F.R. §§ 4.40 and 4.45 do not apply. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). With respect to the separately service-connected arthritis, although DeLuca factors apply, there is no evidence of additionally compensable limitation of motion due to pain, weakness, incoordination, fatigability and the like which would allow for the assignment of additional disability. The February 2005 VA examiner made a specific finding in a March 2005 addendum that these factors were not present. Additionally, although the July 2007 examiner noted a report of fatigability on repetitive use, he did not indicate any additional loss of function due to such fatigability. Accordingly, the record does not provide a basis for additional compensation due to DeLuca factors. Fenderson considerations In Fenderson v. West, 12 Vet. App. 119 (1999), the Court 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. Service connection of the veteran's right knee disability has been assigned effective May 2, 2003. Diagnostic Code 5257 was applied by the RO. From May 2, 2003 until July 24, 2003 a 20 percent disability rating was assigned. Thereafter, from July 24, 2003 until October 1, 2003, a temporary 100 percent disability rating was assigned. From October 1, 2003 a 10 percent disability rating was assigned under Diagnostic Code 5257. As has been alluded to above, the veteran has limited his appeal to the period beginning October 1, 2003. With respect to that portion of the tight knee disability which is rated under Diagnostic Code 5257, the medical evidence does not indicate that such has changed appreciably since the date the 10 percent rating was assigned, October 1, 2002. That is, the disability has never approximated moderate or severe levels. As was described above, three VA examiners have identified very few objective findings. Accordingly, staged ratings are not appropriate under Diagnostic Code 5257. The condition of the veteran's knee has changed, however, during the course of the appeal. Specifically, the July 2007 VA examiner noted a dramatic decrease in the range of motion in the veteran's right knee as well as increased pain. Based on that examination report, in September 2007 the AMC assigned a separate 10 percent disability rating under Diagnostic Codes 5003-5260 effective July 10, 2007, the date of the examination. The existence of these changes was not factually ascertainable until the July 10, 2007 examination. Moreover, there is no subsequent medical evidence which indicates a greater degree of disability (i.e., increased limitation of flexion of extension of the knee). Accordingly, staged ratings are not warranted under Diagnostic Codes 5003- 5260/5261. Accordingly, the veteran's right knee disability will continue to be evaluated as 10 percent disabling under Diagnostic Code 5257 from October 1, 2003 with an additional 10 percent rating under Diagnostic Code 5010-5260 from July 10, 2007. Extraschedular consideration According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2007). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Floyd v. Brown, 9 Vet. App. 88, 95 (1996), the Board cannot make a determination as to an extraschedular evaluation in the first instance. See also VAOPGCPREC 6-96. The RO specifically considered referral for an extraschedular evaluation in the June 2005 Supplemental Statement of the Case (SSOC). Accordingly, the Board will address the possibility of the assignment of an extraschedular rating for the increased disability rating at issue. The Board has been unable to identify an exceptional or unusual disability picture. Aside from the July 2003 surgery, the record does not show that the veteran has been hospitalized due to his right knee disability. Additionally, there is not shown to be evidence of marked interference with employment due to the disability. Although the veteran has submitted evidence showing that he has requested, and received, disability accommodations from his employer, the record also shows that the veteran continues to fully perform his employment duties as an air traffic controller. To the extent that the knee disability may interfere with the veteran's employment, occupational impairment is specifically contemplated in the combined 20 percent rating which is currently assigned. See Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992); see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the disability rating itself is recognition that industrial capabilities are impaired]. Moreover, as referenced in the June 2003 private treatment records and the July 2007 VA examination report, the veteran engages in dog training as a hobby, an activity that requires some degree of physical participation. In addition, there is no evidence in the medical records of an exceptional or unusual clinical picture or of any other reason why an extraschedular rating should be assigned. The Board therefore has determined that referral of the case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. Conclusion For the reasons and bases set out above, the Board has found that the veteran's right knee disability warrants the assignment of a 10 percent disability rating and no more under Diagnostic Code 5257, with a separate 10 percent disability rating under Diagnostic Code 5003. Entitlement to an increased disability rating is denied. ORDER Entitlement to an increased disability rating for a service- connected right knee disability (currently evaluated as 10 percent disabling under Diagnostic Code 5257with a separate 10 percent rating under Diagnostic Code 5003) is denied. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs