Citation Nr: 0814706 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 02-02 698 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to an increased rating for service-connected left knee disability, currently rated as 20 percent disabling. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The veteran served on active duty from November 1990 to November 1991. This matter comes to the Board of Veterans' Appeals (Board) from a September 2001 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2003, July 2005, and October 2007, this matter was remanded for further development. FINDING OF FACT There is x-ray evidence of degenerative joint disease of the left knee, but there is no recurrent subluxation or lateral instability; there is no additional functional loss due to pain, weakness, incoordination, or fatigue so as to limit flexion to 15 degrees or less or so as to limit extension to 20 degrees or more. CONCLUSION OF LAW The criteria for the entitlement to a disability rating in excess of 20 percent for chronic synovitis of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Codes 5003, 5257, 5260, 5261 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veteran Claims' (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, VA satisfied its duties to the veteran in a VCAA letter issued in June 2001. The letter predated the September 2001 rating decision. See id. Subsequently, the veteran was issued VCAA letters in April 2004, August 2005, January 2006, May 2006, and May 2007. Collectively, the VCAA letters notified the veteran of what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the claimant, what information and evidence will be obtained by VA, and the need for the claimant to submit any evidence in his possession that pertains to the claim. Id.; but see VA O.G.C. Prec. Op. No. 1-2004 (Feb. 24, 2004). The VCAA letters have clearly advised the veteran of the evidence necessary to substantiate his claim. For an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary 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. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). 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), the Secretary 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 Secretary 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. Vazquez-Flores. Although all of the requirements of Vazquez-Flores have not been met in the instant case, the Board finds that the notice error did not affect the essential fairness of the adjudication because collectively the June 2001, April 2004, August 2005, January 2006, May 2006, and May 2007 VCAA notices fully informed the veteran that he may submit medical evidence as well as lay observations and employer statements in support of his claim. The veteran has submitted several lay statements from himself and co-workers addressing the effect his disability has on his daily activities and employment. Such lay statements demonstrate that he had actual knowledge of the requirements for an increased rating. Further, the veteran is represented by a state service organization, which would have actual knowledge of the information necessary to substantiate the veteran's claim. In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and that once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. The Federal Circuit stated that requiring an appellant to demonstrate prejudice as a result of any notice error is inconsistent with the purposes of both the VCAA and VA's uniquely pro-claimant benefits system. Instead, the Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant, see Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrates an awareness of what was necessary to substantiate his or her claim.") (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Sanders, 487 F.3d at 889. Additionally, consideration also should be given to "whether the post-adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim ... served to render any pre-adjudicatory section 5103(a) notice error non-prejudicial." Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Thus, as the veteran had actual knowledge of the requirements for an increased rating and sufficient opportunity to submit evidence, despite the inadequate notice provided to the appellant, the Board finds no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the appellant has been prejudiced thereby). In March 2006, the veteran was provided with notice of the types of evidence necessary to establish a disability rating and the type of evidence necessary to establish an effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Despite initial inadequate notice provided to the veteran, the Board finds no prejudice to him in proceeding with the issuance of a final decision. See Bernard, supra. In any event, since the Board concludes below that the preponderance of the evidence is against entitlement to an increased rating, any questions as to the appropriate effective date to be assigned are rendered moot. The Board also finds that VA has complied with all assistance provisions of VCAA. The evidence of record contains a private examination report pertaining to the knee. There is no indication of relevant, outstanding records which would support the veteran's claim. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3). Additionally, the evidence of record contains VA examination reports conducted in July 2001, May 2004, and May 2007. The examination reports obtained are thorough and contain sufficient information to decide the issue on appeal. See Massey v. Brown, 7 Vet. App. 204 (1994). For all the foregoing reasons, the Board concludes that VA's duties to the veteran have been fulfilled with respect to the issue on appeal. Criteria & Analysis Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). It should be noted that 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 weakened movement, excess fatigability and incoordination. For purposes of this decision, the Board notes that normal range of motion for the knee is flexion to 140 degrees and extension to 0 degrees. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5257, pertaining to "other impairment of the knee," a 10 percent rating is warranted for slight knee impairment (recurrent subluxation or lateral instability). A 20 percent rating contemplates a moderate degree of impairment, and a maximum 30 percent rating is warranted for a severe degree of impairment to the knee. Under Diagnostic Code 5258, a maximum schedular rating of 20 percent is assigned for cartilage, semilunar, dislocated with frequent episodes of "locking," pain, and effusion into the joint. Diagnostic Codes 5260 and 5261 provide for rating based on limitation of motion. Evaluations for limitation of flexion of a knee are assigned as follows: flexion limited to 45 degrees is 10 percent; flexion limited to 30 degrees is 20 percent; and flexion limited to 15 degrees is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Evaluations for limitation of extension of the knee are assigned as follows: extension limited to 10 degrees is 10 percent; extension limited to 15 degrees is 20 percent; extension limited to 20 degrees is 30 percent; extension limited to 30 degrees is 40 percent; and extension limited to 45 degrees is 50 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5261. By way of history, service medical records reflect treatment for left knee pain and swelling. In August 1991, he underwent a diagnostic arthroscopy of the left knee with bone-patellar and tendon-bone anterior cruciate ligament reconstruction. Postoperatively, chronic anterior cruciate ligament tear with anterolateral rotary instability of the left knee and partial thickness tear at the posterior horn of the left lateral meniscus were diagnosed. The veteran's left knee disability is rated 20 percent disabling, effective November 2, 1991. In July 2001, the veteran filed a claim for an increased rating, complaining that he experienced constant pain and swelling in the knee. A September 2000 private treatment record from Bruce Watanabe, M.D., reflects that the veteran reported that his knee was not fully recovered, but denied any instability. He complained of occasional clicking and very infrequent locking. He denied any giving out. On physical examination, the knee was tender over the medial and lateral joint lines. No effusion was detected. Range of motion was 0 to 135 degrees. Anterior drawer and Lachman were negative with a 1+ solid end point. Varus and valgus stress were negative. McMurray's sign was negative. An MRI reflected that there was signal present in the medial and lateral menisci. His ACL was intact, and the physician opined that it looked to be a well done graft. Dr. Watanabe's impression was possible medial and lateral meniscal tears, and consideration should be given for arthroscopy and repairs. In July 2001, the veteran underwent a VA examination. He reported working in landscaping as well as maintenance at an apartment complex. He complained of daily chronic knee pain, which he rated as a 2 or 3 on a 10 point scale, and at times goes up to a 10. He reported intermittent swelling approximately 10 times a month with fatigability. He also reported occasional locking, which has increased over the last year. He denied any problems walking upstairs but reported occasional pain walking downstairs. He has joint pain more in the lateral anterior area. He denied any knee pain though he reported constant clicking and grinding with range of motion. He reported a 10 degree loss of range of motion with active activity. He occasionally limps, especially if doing active sorts of duties like working around the apartment complex and mowing lawns. On physical examination, he walked with a normal gait, and his knees were in a neutral position. He had no obvious effusion or swelling and his knee was not warm to touch. His quadriceps muscles were well-developed and well-defined. He had some lateral joint line tenderness but no patellofemoral tenderness. He had some clicking with range of motion. On range of motion testing, he had flexion to 130 degrees, extension to 0 degrees. He had a negative McMurray's and negative anterior drawer sign. His quadriceps were 18 inches and equal. His leg lengths were 38 inches and equal. When raising his knee, he had pain. His sensory was intact, and his strength was 5/5. The examiner diagnosed history of anterior cruciate ligament tear status post reconstruction and lateral meniscus tear of the left knee with chronic knee pain with some associated mild degenerative joint disease. The examiner opined that due to the fact that a recent MRI showed some mild meniscus tears and some mild degenerative joint disease, it is more likely than not that the degenerative joint disease in his knee will progress. In May 2004, the veteran underwent another VA examination. He reported work as a day trader. He denied any post-service injury to the knee. He reported being able to operate a car for at least two hours, associated with increasing pain and stiffness at the left knee. Walking is limited to five or ten minutes by left knee pain. Activities such as golfing and weightlifting have been decreased by his knee problem. He reported pain, collapsing, locking and instability in the left knee. The instability is mostly a feeling of collapsing. The examiner noted that the veteran has subjective feelings of weakness and poor coordination at the left knee. Poor coordination included the collapsing. He did not notice any easy fatigue anywhere in the body. Flare- up with activity is most apt to bother the left knee, usually with standing, walking, prolonged sitting, and working around the house. Left knee flare-ups happen everyday. On physical examination, there was moderate limping with the left knee. He was able to rise on toes and heels. He could flex forward and reach to the lower tibia, showing 80 degrees of back flexion. Legs were equal in length. Alignment of the lower extremities were very good. Range of motion was 0 to 125 degrees with some pain with movement. There was some guarding of movement to minimize pain. Motions were the same actively and passively. Pain was over the full range of motion, worse at the end of motion. There was no increase in joint fluid at either knee. Patellar pain and crepitation were mild on the right and moderate on the left. Anterior tendon structures were nontender at both knees. Quadriceps muscle had a mild disuse atrophy at the left knee. The left knee was tender at medial and lateral joint lines. Ligaments were normal at both knees. Anterior cruciate ligament stability was normal. The examiner diagnosed status-post reconstructive surgery. The examiner opined that the joint had progressed to a moderate post-traumatic degenerative arthritis and it continues with some tearing of medial and lateral meniscus. Continued pain, collapsing, and instability at the left knee was diagnosed as chronic synovitis and degenerative arthritis associated with continued caring of medial and lateral meniscus. Ligament stability was very good. The examiner opined that left knee pain is probably worsened by chronic tension and/or depression. The veteran denied being aware of any such difficulty but various factors indicated that this is probable. The examiner's prognosis was that he would probably continue to have bothersome symptoms at the left knee, although certain kinds of treatment might give some improvement. The examiner also noted that the veteran's subjective symptoms are quite bothersome. Decreasing flexion of the left knee by 35 degrees would represent these symptoms at that knee. He also has flare-up problems. Decreasing flexion of the left knee by 30 degrees would represent the flare-ups. In May 2007, the veteran underwent another VA examination. He reported many jobs since separation including selling cameras, working in product research. He reported currently marketing and selling cell phones. He does not tolerate long periods of standing in any job he has worked at since service. He reported daily pain in the knee, in the center and front of the knee by the patellofemoral part of the joint. Average pain while seated is 2 on a 10 point scale. The pain increases to a 9 out of 10 with increased difficulty walking or with a change in weather with lowering of barometric pressure and bad weather. Treatment of his left knee is with heat first followed by ice with increased knee pain. He also uses a left knee sleeve at times if he has increased pain. He had recently begun to use a walking stick for longer walks outside, but does not use a cane. He does not use a hinged knee brace. He occasionally takes Advil or ibuprofen once or several times a day for increased low back pain or left knee pain. Flare-ups to a higher pain level occur with walking or weather change. He denied a history of major flare-ups, and denied incapacitating episodes. He reported a feeling of weakness, feeling of increased fatigability, and also lack of endurance of his left knee. He reported stiffness of his left knee especially if the knee is swollen. He indicated that the knee swells for a day or two once or twice a week. The knee occasionally feels like it does not extend properly and does not work the way it should. He indicated that he has had giving way and has fallen five or six times over the year because of the left knee pain. He reported a feeling of catching in the left knee but denied locking. He denied muscle spasms. With regard to activities, he tolerates sitting for an hour or two while working on a computer. He has to occasionally change the position of his left knee. He tolerates driving approximately an hour and has to get out and move around because of increased pain. He tolerates standing between 45 and 60 minutes. He tolerates walking up to a quarter mile and gets increased pain in his knee and back. He has increased pain when putting on shoes and socks. He denied taking any nightly medications. At work he avoids stooping, and prolonged standing or walking. He has had occasional falls at work. He gets increased knee pain going up and down stairs, and avoids crouching and does not walk on ladders. The examiner observed that while the veteran was seated he did not grimace. He occasionally changed his left knee position. After he was seated for 20 minutes, he reported that the pain was a 3 on a 10 point scale. He stood up and did not grimace. He shifted weight to the right and did most of the weightbearing on his right lower extremity. He walked approximately 50 feet without the use of a walking aid. He had a moderate left limp, and his gait speed was slow. After walking, pain increased to a 5 out of 10. He did a few steps of a slow run, but was spending very little time on the left leg and more time on the right leg. He did not grimace, but avoided this. He was able to tiptoe and heel stand. He had increased left knee pain taking off shoes and socks. On physical examination, the knee had tenderness to palpation over the left patellofemoral joint and the patellar tendon, over the medial and lateral joint line, and also in the popliteal fossa. No swelling was noted. There was minimal crepitus of patellofemoral joints of the left knee. There was no effusion and no increased warmth of either the right or left knees. The examiner could find no laxity of cruciates or collateral ligaments of the right or left knees. Steinmann test of the knee for meniscal problems was painful on the left. His knees would not flex enough to do McMurray's test. Both knees fully extended to 0 degrees. The right knee flexed repeatedly (three times) to 115 degrees with no grimacing and no painful arc of motion. The left knee initially flexed from full extension at 0 to 105 degrees. Second and third flexions eventually increased left knee flexion to 115 degrees. After this was done he had an exaggerated pain response, and at various aspects of flexion and extension he grimaced. He did not grimace with initial flexions or extensions of the knee. There was no additional loss of range of motion of the left knee because of pain. There was no weakened movement, excessive fatigability or lack of endurance with repeated range of motion examination. There was no excessive fatigability, lack of endurance or weakened movement with walking 50 feet. He had a left limp and increased pain with walking the 50 feet. There was no incoordination observed. The examiner noted the veteran reported that his left knee had worsened since the May 2004 VA examination. He reported an increase in pain, becoming less active, and an increased fear of falling. The examiner opined that his functional impairment of the left knee was moderate. The examiner could not identify any ligamentous instability of the left knee. There was no laxity of the anterior or posterior cruciate or the medial or lateral collateral ligaments of the left knee. There was no evidence of recurrent subluxation or lateral instability of the left knee. An x-ray showed that alignment remained normal; joints spaces were maintained; and, there was no significant left knee effusion. It appears that at the time of the filing of his increased rating claim, the left knee disability was rated by the RO as 20 percent disabling under Diagnostic Code 5257. However, after reviewing the evidence, the Board finds that a compensable rating under Diagnostic Code 5257 is not warranted. The medical evidence is against a finding of recurrent subluxation or lateral instability. Instead, the evidence shows chronic synovitis and mild degenerative arthritis, and the Board finds that the veteran's knee disability should be evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5020, which is rated as arthritis under Diagnostic Code 5003. In turn, this requires rating the veteran's disability under the rating criteria for limitation of motion, Diagnostic Codes 5260 and 5261. In consideration of the diagnostic criteria for limitation of motion, the Board finds that a disability rating in excess of 20 percent is not warranted. Specifically, the September 2000 examination report reflects range of motion of 0 to 135 degrees; the July 2001 VA examination report reflects range of motion of 0 to 130 degrees; the May 2004 VA examination report reflects range of motion of 0 to 125 degrees; and, the May 2007 VA examination report reflects range of motion of 0 to 105 degrees, and then 0 to 115 degrees. Such range of motion is noncompensable under the provisions of both Diagnostic Codes 5260 and 5261. Even in consideration of the May 2004 VA examiner's opinion that the veteran's flexion was additionally limited by 35 degrees due to subjective symptoms of pain, and 30 degrees during flare-ups, such limitation of motion does not warrant a disability rating in excess of 20 percent under the rating criteria. The Board also has considered the VA General Counsel Precedent Opinion, VAOPGCPREC 9-2004 (September 17, 2004), where it was held that a claimant who had both limitation of flexion and limitation of extension of the same leg must be rated separately under diagnostic codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. This however does not seem to apply to the veteran's case given that he has not demonstrated any limitation of motion on extension and, in fact, has not demonstrated a compensable rating under either Code 5260 or 5261 based on a strict adherence to the limitation of motion criteria. The Board does not interpret the General Counsel opinion as providing for separate ratings for noncompensable limitation of flexion and limitation of extension due to pain and believes that the 20 percent rating for limitation of motion with pain (although noncompensable under Codes 5260 and 5261) under Diagnostic Code 5003 is all that is permitted under that regulatory provision. The Board has given consideration to the possibility of assigning separate evaluations for the veteran's service- connected right knee disability under Diagnostic Codes 5003 and 5257, which is allowed so long as the evaluation of knee dysfunction under both codes does not amount to prohibited pyramiding under 38 C.F.R.§ 4.14. See VA O .G.C. Prec. Op. No. 23-97 (July 1, 1997), 62 Fed. Reg. 63,604 (1997) (a veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, provided that any separate rating must be based upon additional disability); VA O.G.C. Prec. Op. No. 9-98 (Aug. 14, 1998), 63 Fed. Reg. 56,704 (1998) (if a veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also X-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59). See also Esteban, 6 Vet. App. at 261 (1994) (separate disabilities arising from a single disease entity are to be rated separately); but see 38 C.F.R. § 4.14 (2003) (the evaluation of the same disability under various diagnoses is to be avoided). Although the medical records reflects subjective complaints of instability, collapsing and "giving way," the objective findings for the period 2000 through 2007 do not reflect findings of subluxation or lateral instability. Specifically, the May 2004 VA examiner opined that the anterior cruciate ligament stability was normal, and the May 2007 VA examiner specifically noted that no ligamentous instability could be identified, and that there was no laxity of the anterior or posterior cruciate or the medial or lateral collateral ligaments of the left knee. The examiner stated that there was no evidence of recurrent subluxation or lateral instability of the left knee. Thus, a disability rating under Diagnostic Code 5257 is not appropriate based on the objective findings of record, as there have been no objective findings of recurrent subluxation or lateral instability. The Board finds that the 20 percent disability rating effectively considers the veteran's functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination. 38 C.F.R. § 4.40, 4.45, 4.59 (2003); DeLuca, 8 Vet. App. at 204-07. The Board acknowledges the veteran's reports of pain, and the May 2007 VA examiner's assessment of moderate functional impairment of his activities of daily living. The Board also acknowledges the written statements prepared by the veteran attesting to his symptoms and effect on his daily activities and employment, and the lay statements prepared by his co-workers attesting to the effects on his employment. The Board finds, however, that the 20 percent rating takes into consideration the veteran's complaints of knee pain and any functional loss, thus, the Board finds that 38 C.F.R. § 4.40, 4.45 and 4.59 do not provide a basis for a higher rating. See DeLuca, 8 Vet. App. at 204-07. The Board has also determined that there is no other diagnostic code which could provide a higher rating for the veteran's knee disability. See Schafrath, 1 Vet. App. at 592-593. The assignment of an extra-schedular rating was also considered in this case under 38 C.F.R. § 3.321(b)(1); however, the record contains no objective evidence that the veteran's service-connected left knee disability has resulted in marked interference with earning capacity or employment beyond that interference contemplated by the assigned evaluation, or has necessitated frequent periods of hospitalization. Initially, the Board acknowledges that the veteran has been employed in several different capacities over the years; however, he has continued to remain employed during the course of this appeal. The veteran has indicated that he cannot tolerate standing or sitting for long periods of time, and his co-workers have also described incidents where the veteran fell or had to sit down. While such complaints have been considered in assigning the 20 percent disability rating, VA's General Counsel has noted "mere assertions or evidence that a disability interferes with employment" is not enough to warrant extra-schedular consideration. Rather, consideration of an extra-schedular rating under 3.321(b)(1) is only warranted where there is evidence that the disability picture presented by the veteran would, in that average case, produce impairment of earning capacity beyond that reflected in the rating schedule or where evidence shows that the veteran's service-connected disability affects employability in ways not contemplated by the rating schedule. See VA O.G.C. Prec. Op. No. 6-96, published at 61 Fed. Reg. 66749 (1996). Thus, there is no evidence that his left knee disability by itself has resulted in marked interference with earning capacity to warrant extra-schedular consideration. Additionally, the record does not reflect frequent periods of hospitalization due to his left knee disability. Accordingly, the Board finds that the impairment resulting from the veteran's left knee disability is appropriately compensated by the currently assigned schedular rating and 38 C.F.R. § 3.321 is inapplicable. ORDER The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs