Citation Nr: 1035596 Decision Date: 09/20/10 Archive Date: 09/28/10 DOCKET NO. 07-02 591 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to a rating in excess of 30 percent for service- connected residuals of left knee medial menisectomy. 2. Prior to January 5, 2010, entitlement to an initial rating in excess of 10 percent for service-connected osteoarthritis of the left knee. 3. Beginning January 5, 2010, entitlement to an initial rating in excess of 20 percent for service-connected osteoarthritis of the left knee. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. M. Schaefer, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1968 to October 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In December 2009, the Board remanded the case to the agency of original jurisdiction (AOJ) for additional development, and it now returns to the Board for appellate review. On his January 2007 VA Form 9, substantive appeal, the Veteran requested a hearing before a Veterans Law Judge. He subsequently withdrew his hearing request in a March 2007 hearing request. Accordingly, the regulations consider the hearing request to have been withdrawn. 38 C.F.R. § 20.702(e) (2009). In a February 2010 rating decision, the separate rating for osteoarthritis of the left knee was increased from 10 percent to 20 percent, effective January 5, 2010. However, as this rating is still less than the maximum benefit available, the appeal is still pending. AB v. Brown, 6 Vet. App. 35, 38 (1993). FINDINGS OF FACT 1. Service-connected residuals of left knee medial menisectomy is manifested by recurrent subluxation and giving way, positive ligament testing (Lachman and anterior/posterior drawer testing), observed valgus malalignment, and the need for a brace to maintain stability of the joint. 2. Prior to September 5, 2008, service-connected osteoarthritis of the left knee was manifested by mild osteoarthritis with moderate symptoms, and range of motion from 0 degrees extension to 70 degrees flexion, with pain, at the most severe. 3. Beginning September 5, 2008, service-connected osteoarthritis of the left knee is manifested by severe and advanced osteoarthritis with range of motion of extension to 0 degrees and flexion to 40 degrees at the most necessitating the use of a cane while standing, and the prescribed use of a knee brace and a walker when outside. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for service-connected residuals of left knee medial menisectomy have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2009). 2. Prior to September 5, 2008, the criteria for a rating in excess of 10 percent for service-connected osteoarthritis of the left knee have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2009). 3. Beginning September 5, 2008, the criteria for a rating of 20 percent, but no greater, for service-connected osteoarthritis of the left knee have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Stegall Considerations The Board observes that this case was remanded by the Board in December 2009. The United States Court of Appeals for Veterans Claims (Court) has held "that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders." See Stegall v. West, 11 Vet. App. 268, 271 (1998). The purpose of the remand was to achieve further development of the claim, namely for a VA examination to be scheduled. A review of the post remand record shows that this examination was completed in January 2010. Therefore, the Board determines that the RO/AMC substantially complied with the Board's orders in the December 2009 remand, and that the Board may now proceed with adjudication of the claim. II. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his or her claims and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claims. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). VA must inform a claimant about the information and evidence not of record that is necessary to substantiate the claims, the information and evidence that VA will seek to provide, and the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (revised 73 Fed. Reg. 23353- 23356, April 30, 2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that VCAA notice requirements also apply to the evidence considered in determinations of the degree of disability and effective date of the disability once service connection has been established. VCAA notice must be provided before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claims for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided with a VCAA notification letter in December 2005, prior to the initial unfavorable AOJ decision issued in May 2006. The Board observes that the pre-adjudicatory VCAA notice informed the Veteran that he must show that his service-connected disability had increased in severity, of how VA would assist him in developing his claims, and his and VA's obligations in providing such evidence for consideration. With regard to notification as to disability ratings and effective dates, the first notice provided to the Veteran was dated in March 2006. Although untimely, the Board finds that no prejudice to the Veteran has resulted. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (noting that where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). In this regard, the Board observes that a statement of the case and supplemental statement of the case constitute "readjudication decisions" that comply with all due process requirements if preceded by adequate VCAA notice. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, as a matter of law, providing the Veteran with VCAA-compliant notice prior to a readjudication "cures" any timing problem resulting from any deficiency in notice content or the lack of notice prior to an initial adjudication. See id., citing Mayfield v. Nicholson, 444 F.3d 1328, 1328 (Fed. Cir. 2006). In the present case, subsequent to the March 2006 letter, the Veteran's claims were readjudicated multiple times and a statement of the case and supplemental statements of the case were issued, thereby rectifying any timing deficiency of notice. Accordingly, the Board determines that the content requirements of VCAA notice have been met and the purpose of such notice, to promote proper development of the claims, has been satisfied. See Mayfield, 444 F.3d at 1333. Based on the above, the Board finds that further VCAA notice is not necessary prior to the Board issuing a decision. VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claims and providing him with a VA examination. The Veteran's VA medical records, private medical records, and the reports of March 2006, September 2007, September 2008, and January 2010 VA examinations were reviewed by both the AOJ and the Board in connection with adjudication of the claims. The Veteran has not identified any additional, relevant treatment records the Board needs to obtain for an equitable adjudication of the claims. The Board notes that VA treatment records show that the Veteran has a private physician, Dr. S. However, treatment records from Dr. S. are not in the claims file. However, it is not readily apparent that Dr. S. treats the Veteran for his service-connected left knee disability. Moreover, the law provides that, while VA is obligated to assist a claimant in the development of a claim, there is no duty on VA to prove the claim. As the Court stated in Wood v. Derwinski, "[t]he duty to assist is not always a one- way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." 1 Vet. App. 190, 193, reconsidered, 1 Vet. App. 406 (1991); see also Wamhoff v. Brown, 8 Vet. App. 517 (1996). Therefore, in the present case, the Board determines that VA is not obligated to request the records identified by the Veteran when he has not provided VA with the necessary information to determine where to direct that request. With regard to the VA examinations, the Board notes that once VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this case, each VA examiner reviewed the claims file, noting relevant documents in service treatment records and post-service treatment evidence, documented the Veteran's subjective complaints and medical history, and examined the Veteran. Thereafter, in the reports, they provided information sufficient in detail and relevance to the rating criteria to allow for determination of the appropriate disability rating. There is nothing to suggest that any examiner's findings are insufficient or inconsistent with the severity of the Veteran's disability as documented throughout the claims file. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159 (c)(4) (2009). In light of the above, the Board concludes that the medical evidence of record is sufficient to adjudicate the Veteran's claims without further development and additional efforts to assist or notify the Veteran in accordance with VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (finding that strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). Therefore, the Board determines that the Veteran will not be prejudiced by the Board proceeding to the merits of the claim. II. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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. 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. 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 disabilities. 38 C.F.R. § 4.14. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the Veteran's service-connected left knee disability. The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. In an increased rating case the present disability level is the primary concern and past medical reports do not take precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Board also notes that the Court has held that staged ratings are appropriate for increased rating claims when factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). Thus, the Board has considered the propriety of staged ratings in assessing the Veteran's service-connected disability. The Veteran's service-connected left knee disability has been assigned a rating of 30 percent for residuals of left knee medical menisectomy under Diagnostic Code 5257 and a separate 10 percent rating prior to January 5, 2010 and 20 percent beginning January 5, 2010 for osteoarthritis of the left knee pursuant to Diagnostic Code 5260. 38 C.F.R. § 4.71a. The Veteran contends that his symptomology, particularly the pain, is worse than compensated by this rating and that a higher rating should be assigned. In rating musculoskeletal disabilities, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). 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. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Veteran's service-connected left knee disability was originally rated as 30 percent disabling pursuant to Diagnostic Code 5257. 38 C.F.R. § 4.71a. In October 1997, he underwent surgery for which a temporary total evaluation was assigned from October 20, 1997, to January 1, 1998. A 30 percent evaluation was assigned, effective January 1, 1998, and a rating in excess of 30 percent was denied in the May 2006 rating decision. However, a separate 10 percent rating was assigned in a January 2007 rating decision for osteoarthritis of the left knee, pursuant to Diagnostic Code 5260, and effective October 24, 2005. Id. A February 2010 rating decision assigned a 20 percent rating evaluation for the osteoarthritis of the left knee, effective January 5, 2010, also under Diagnostic Code 5260. Id. Under Diagnostic Code 5003, degenerative arthritis substantiated by X-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under Diagnostic Code 5257, other impairment of the knee, severe recurrent subluxation or lateral instability is assigned a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under Diagnostic Code 5260, flexion of the leg limited to 45 degrees warrants a 10 percent rating. Flexion limited to 30 degrees warrants a 20 percent rating. Flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, extension of the leg limited to 10 degrees warrants a 10 percent rating. Extension limited to 15 degrees warrants a 20 percent rating. Where extension is limited to 20 degrees, a 30 percent rating is assigned. Where extension is limited to 30 degrees, a 40 percent rating is assigned. Where extension is limited to 45 degrees, a 50 percent rating is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5261. VA's General Counsel has issued opinions which are also relevant to the rating of the Veteran's knee disabilities. One opinion indicates that a disability rated under Diagnostic Code 5257 may be rated separately under Diagnostic Codes 5260, limitation of flexion of the knee, and 5261, limitation of extension of the knee. See VAOGCPREC 23- 97. Another opinion states that separate disability ratings may be assigned under Diagnostic Code 5260 (limitation of flexion) and Diagnostic Code 5261 (limitation of extension) for disability of the same joint without violating the provisions against pyramiding at 38 C.F.R. § 4.14. VAOPGCPREC 9-04. Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. Normal range of motion of the hip is flexion from 0 degrees to 125 degrees, and abduction from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. During the appeal period, relevant medical evidence includes the reports of several VA examinations, as well as VA and private treatment records. VA examinations were conducted in April 2006, September 2007, September 2008, and January 2010. In April 2006, the Veteran had subjective complaints of constant ache in the left knee, aggravated by walking two or three blocks and by changes in the weather. He reported one incidence of giving way in the knee, but no episodes of locking. The examiner noted that the Veteran's self-reported history did not indicate any further loss of range of motion with use, but did suggest weakness, fatigability, and lack of endurance. The examiner observed an antalgic gait with varus thrust of the left knee. Range of motion was from 0 degrees of extension to 80 degrees of flexion, with no pain prior to 80 degrees. The examiner noted 1+ effusion of the left knee, but no joint crepitus. There was medial and lateral tenderness. Lachman's test was positive, and there was valgus laxity of the ligament. Anterior/posterior drawer testing was negative. The examiner observed two healed surgical scars measuring 9 cm and 5 cm in length. In September 2007, the Veteran had complaints of constant pain and stiffness. The examiner noted the use of a cane and knee brace. The examiner observed no effusion or tenderness to palpation. However, there was tenderness along the medial joint line. Range of motion was from 0 degrees of extension to 80 degrees of flexion with pain at 70 degrees. The examiner stated there was no weakness, fatigue, or lack of endurance. He reported that McMurray's and anterior/posterior drawer testing could not be accomplished. Valgus deformity was present. No additional weakness, fatigability, incoordination, or functional impairment was found upon repetition. The examiner indicated that the surgical scars were well-healed. X-rays showed mild osteoarthritis, and the examiner stated that symptoms were moderate. At the September 2008 VA examination, the Veteran reported increased instability and bowing of the knee, popping when walking, and falling when not wearing his brace. He indicated that he experienced medial joint pain and tenderness. The Veteran complained of flare-ups with weather changes and with standing for 20 minutes or walking half a block. He stated that he had taken 10 to 15 days off from work in the prior 12 months due to his left knee. The examiner observed tenderness to palpation of the medial joint and crepitus. There was no effusion. Range of motion was severely limited to 20 degrees of extension and 40 degrees of flexion. McMurray's test could not be performed, but Lachman's and anterior/posterior drawer test for instability was negative. The examiner noted a 10 degree genu varum deviation of the left knee when the Veteran was standing. A 10 cm surgical scar was found to be nontender, hyperpigmented, and freely mobile. X-rays showed moderate osteoarthritis, and the examiner diagnosed severe and advanced medial compartment degenerative osteoarthritis. At the January 2010 examination, the Veteran reported using a wheeled walker outside and a cane when working. Days lost from work ranged from 15 to 20 days in the last 12 months. The Veteran indicated that the pain was constant with flare-ups with standing 20 minutes or walking more than a block. He related that he had frequent giving way and experienced a grinding sensation and locking. The examiner observed 15 degrees of varus malalignment. There was global joint line tenderness, but no joint effusion. Range of motion was from 0 degrees to 35 degrees, with increased pain at 30 degrees. No ligament laxity was noted with testing; however, the examiner noted that the Veteran guarded his knee during examination. No additional pain, weakness, fatigability, incoordination, or functional impairment were found upon repetition. Scars were observed, but no abnormalities were noted. The examiner stated that X-rays showed severe and advanced medial compartment degenerative osteoarthritis, as well as subluxation of the femur on the tibia. A review of the treatment evidence shows that the Veteran has received treatment for his left knee, including injections and physical therapy. He has been prescribed a knee brace and a walker. However, treatment records do not reflect symptoms related to the left knee disability that are more severe than those described above. Based on the above evidence, the Board finds that a rating in excess of 30 percent is not warranted for residuals of left knee medical menisectomy at any time during the appeal period. In this regard, the Board notes that a 30 percent rating is assigned for severe recurrent subluxation and instability and is the highest rating available under Diagnostic Code 5257. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. With respect to the rating under Diagnostic Code 5260, the Board observes that a 10 percent rating is warranted for flexion to 45 degrees, a 20 percent rating is assigned for flexion limited to 30 degrees, whereas flexion to less than 30 degrees is required for a rating in excess of 20 percent. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. A 10 percent rating was assigned prior to January 5, 2010, and a 20 percent rating was assigned thereafter. The Board agrees with these rating evaluations, but determines that the Veteran's symptoms more closely approximated the 20 percent rating as of September 5, 2008. Prior to that date, VA examinations and treatment records reflected flexion of the knee to 70 degrees at the least. However, as of the September 2008 VA examination, the Veteran's service-connected left knee disability was noted by the examiner to be more severe, and range of motion was limited to 40 degrees flexion. This degree of flexion is greater than that strictly required for a 20 percent rating evaluation; however, it is less than the flexion required for a 10 percent rating. Further, the Board observes that the Veteran had been prescribed a walker, which suggests greater severity since the September 2007 VA examination, and the examiner diagnosed severe osteoarthritis whereas in September 2007, the diagnosis was mild osteoarthritis with just moderate symptoms. Accordingly, the Board determines that a rating of 20 percent, but no greater, is warranted effective September 5, 2008. See Hart v. Mansfield, 21 Vet. App. 505 (2007). However, the Board does not find that a rating in excess of 10 percent is appropriate prior to September 5, 2008, or in excess of 20 percent is supported at any time during the appeal period. As discussed, a rating in excess of 10 percent requires limitation of flexion to less than 45 degrees. Prior to September 5, 2008, the Veteran's flexion was consistently reported to be greater than 45 degrees. Further, neither the VA examinations nor treatment records dated prior to September 2008 present findings supportive of a rating in excess of 10 percent. As for a rating in excess of 20 percent beginning September 5, 2008, such a rating under Diagnostic Code 5260 requires flexion limited to 15 degrees or less. Even when considering pain, the Board notes that the Veteran did not demonstrate left knee flexion to be less than 30 degrees. Thus, ratings in excess of 10 percent prior to September 5, 2008, and in excess of 20 percent beginning September 5, 2008, are denied. Further, the Board observes that the medical evidence presents a few instances in which the Veteran exhibited loss of extension to as much as 20 degrees in September 2008. However, in the vast majority of range of motion testing reported in the record, the Veteran's extension was documented as full, to 0 degrees. A temporary increase in severity of symptoms does not constitute a permanent change in severity of the disability so as to warrant an assignment of a higher disability evaluation. Davis v. Principi, 273 F.3d 1341, 1345 (Fed. Cir. 2002); see Jensen v. Brown, 4 Vet. App. 304, 306- 307 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). Significantly, following the September 2008 examination which noted extension was limited to 20 degrees, the Veteran was afforded another examination in January 2010 when extension was noted to be zero (0) degrees. Absent consistent findings of less than full extension at any time during the appeal period, the Board concludes that a separate rating for limitation of extension of the left knee is not warranted. Consideration has been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, absent evidence of ankylosis, dislocated or removed cartilage, impairment of the tibia or fibula, or genu recurvatum, ratings under Diagnostic Codes 5256, 5258, 5259, 5262, and 5263 are not for consideration. Moreover, the Board notes that the Veteran has residual scars associated with his left knee disability. However, these scars were reported to be well-healed, and no abnormalities of tissue were documented. Therefore, the Board determines that a separate evaluation for the scar is not warranted. 38 C.F.R. Part 4, Diagnostic Codes 7803, 7804, 7805. Thus, a review of the record fails to reveal any additional functional impairment associated with the Veteran's service- connected residuals of left knee medial menisectomy and left knee osteoarthritis so as to warrant consideration of alternate rating codes. As is evident from the above discussion, the Board has also considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against rating evaluations in excess of those assigned herein. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and his increased rating claim must be denied. 38 U.S.C.A. § 5107 ; 38 C.F.R. §§ 4.3, 4.7. An extra-schedular rating is a component of a claim for an increased rating. Barringer v. Peake, 22 Vet. App. 242 (2008); see Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extra-schedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008); see Fisher v. Principi, 4 Vet. App. 57, 60 (1993); 38 C.F.R. § 3.321(b)(1). If so, factors for consideration in determining whether referral for an extra-schedular rating include marked interference with employment or frequent periods of hospitalization that indicate that application of the regular schedular standards would be impracticable. Thun, citing 38 C.F.R. § 3.321(b)(1) (2009). In the present case, the Board acknowledges that the Veteran reported losing up to 20 days of work in a 12-month period due to his service-connected left knee disability, but the Veteran's left knee symptoms are fully contemplated by the scheduler rating criteria. Moreover, there is nothing in the record, e.g., employment records, to demonstrate that the time off work had been deemed excessive or exceptional for this disability so as to require consideration of an extra-schedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b)(1). Both the subjective complaints and objective findings are contemplated by the schedular rating criteria. Therefore, the Board concludes that referral for an extra-schedular rating is not warranted in this case. Finally, while the appeal was pending, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part and parcel of an increased-rating claim when raised by the record. The Board has jurisdiction to consider the Veteran's possible entitlement to a TDIU rating in this circumstance when the TDIU issue is raised by assertion or reasonably indicated by the evidence and is predicated at least in part on the severity of the service-connected disability in question, regardless of whether the RO has expressly addressed this additional issue. See VAOPGCPREC 6-96 (Aug. 16, 1996). See also Caffrey v. Brown, 6 Vet. App. 377 (1994); Fanning v. Brown, 4 Vet. App. 225, 229 (1993); EF v. Derwinski, 1 Vet. App. 324 (1991). In this case, the record reflects that the Veteran was denied a TDIU rating by the RO in a September 2007 rating decision, which he did not appeal. Further, the record shows that he was employed throughout the appeal period, with intentions to retire sometime in 2010 being documented by the January 2010 VA examiner. Therefore, the Board determines that further contemplation of such rating is not necessary. ORDER A rating in excess of 30 percent for service-connected left knee, status post medial menisectomy is denied. Prior to September 5, 2008, a rating in excess of 10 percent for service-connected osteoarthritis of the left knee is denied. Beginning September 5, 2008, a rating of 20 percent, but no greater, for service-connected osteoarthritis of the left knee is granted subject to the regulations governing the award of monetary benefits. ____________________________________________ LANA K. JENG Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs