Citation Nr: 1117953 Decision Date: 05/10/11 Archive Date: 05/17/11 DOCKET NO. 06-31 972 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for chondromalacia of the left knee. 2. Entitlement to an initial rating in excess of 10 percent for chondromalacia of the right knee. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Morales, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1998 to March 1999 and from January 2003 to April 2004. This appeal comes before the Board of Veterans' Appeals (Board) from a rating decision issued in September 2005 in Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In November 2009, the Board remanded the case for additional development and this matter now returns for further appellate review. As will be discussed further herein, the Board finds that the agency of original jurisdiction (AOJ) substantially complied with the November 2009 remand orders and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Board notes that the September 2005 rating decision initially assigned noncompensable ratings for the Veteran's bilateral knee disabilities, effective April 15, 2004. Thereafter, in a March 2007 Decision Review Officer decision, initial 10 percent ratings were assigned, effective April 15, 2004. As the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, it follows that such a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). Therefore, the Board has characterized the issues as shown on the first page of this decision. FINDINGS OF FACT 1. For the entire appeal period, chondromalacia of the left knee is manifested by subjective complaints of pain, swelling, giving way, flare-ups, locking up, popping, and stiffness with flexion limited to no more than 110 degrees and extension to zero degrees with patellar grind and crepitation, without objective evidence of ankylosis, recurrent subluxation or lateral instability, dislocation of semilunar cartilage, removal of semilunar cartilage, impairment of the tibia and fibula, genu recurvatum, or arthritis. 2. For the entire appeal period, chondromalacia of the right knee is manifested by subjective complaints of pain, swelling, giving way, flare-ups, popping, and stiffness with flexion limited to no more than 120 degrees and extension to zero degrees, without objective evidence of ankylosis, recurrent subluxation or lateral instability, dislocation of semilunar cartilage, removal of semilunar cartilage, impairment of the tibia and fibula, genu recurvatum, or arthritis. CONCLUSIONS OF LAW 1. For the entire appeal period, the criteria for an initial rating in excess of 10 percent for chondromalacia of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.25, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5014-5260 (2010). 2. For the entire appeal period, the criteria for an initial rating in excess of 10 percent for chondromalacia of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.25, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5014-5260 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the appellant's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. The Board observes that the Veteran has appealed with respect to the propriety of the initially assigned ratings for his left and right knee disabilities from the original grant of service connection. VA's General Counsel has held that no VCAA notice is required for such downstream issues. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). In this case, the Veteran's claims for service connection for his left and right knee disabilities were granted and initial ratings were assigned in the September 2005 rating decision on appeal. Therefore, as the Veteran has appealed with respect to the initially assigned ratings, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Relevant to the duty to assist, the Veteran's service treatment records and post-service VA treatment records have been obtained and considered. He has not identified any additional, outstanding records necessary to decide his pending appeal. The Veteran has also been afforded VA examinations in April 2005, November 2006, and April 2010 in order adjudicate his initial rating claims. The Board finds these examinations to be adequate in order to evaluate the Veteran's left and right knee disabilities as they include an interview with the Veteran, a review of the record, and a full physical examination, addressing the relevant rating criteria. Therefore, the Board finds that the examination reports of record are adequate to adjudicate the Veteran's initial rating claims and no further examination is necessary. The Board observes that this case was remanded in November 2009 in order to obtain outstanding VA treatment records and afford the Veteran a VA examination so as to assess the severity of his bilateral knee disabilities. Thereafter, additional VA treatment records dated through April 2010 were associated with the claims file and the Veteran was afforded a VA examination in April 2010. Therefore, the Board finds that the AOJ has substantially complied with the November 2009 remand directives such that no further action is necessary in this regard. See D'Aries, supra. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (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 appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 appellant'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 an appellant's service-connected disabilities. 38 C.F.R. § 4.14. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. Fenderson v. West, 12 Vet. App. 119 (1999). In determining the degree of limitation of motion, 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). 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. 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 bilateral knee disaiblities are currently evaluated as 10 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5014-5260. The Veteran contends that he is entitled to higher initial ratings because such disabilities are more severe than the currently assigned ratings. Therefore, he argues that initial ratings in excess of 10 percent are warranted for his bilateral knee disabilities. In the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With diseases, preference is to be given to the number assigned to the disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27. The hyphenated diagnostic code in this case indicates that osteomalacia under Diagnostic Code 5014 is the service-connected disorder and limitation of flexion under Diagnostic Code 5260 is a residual condition. Diagnostic Code 5014 provides that osteomalacia is evaluated based on limitation of motion of the affected parts. Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. Limitation of motion of the knee is contemplated in 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. Diagnostic Code 5260 provides for a zero percent evaluation where flexion of the leg is only limited to 60 degrees. For a 10 percent evaluation, flexion must be limited to 45 degrees. For a 20 percent evaluation is warranted where flexion is limited to 30 degrees. A 30 percent evaluation may be assigned where flexion is limited to 15 degrees. Diagnostic Code 5261 provides for a zero percent evaluation where extension of the leg is limited to five degrees. A 10 percent evaluation requires extension limited to 10 degrees. A 20 percent evaluation is warranted where extension is limited to 15 degrees. A 30 percent evaluation may be assigned where the evidence shows extension limited to 20 degrees. For a 40 percent evaluation, extension must be limited to 30 degrees. And finally, where extension is limited to 45 degrees a 50 percent evaluation may be assigned. VA's General Counsel has also stated that separate ratings under Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOPGCPREC 9-04 (September 17, 2004), published at 69 Fed. Reg. 59,990 (2004). For the reasons discussed below, the Board finds that the Veteran is not entitled to initial ratings in excess of 10 percent for his bilateral knee disabilities. In this regard, the Board finds that the Veteran's left knee disability, for the entire appeal period, is manifested by subjective complaints of pain, swelling, giving way, flare-ups, locking up, popping, and stiffness with flexion limited to no more than 110 degrees and extension to zero degrees with patellar grind and crepitation. Additionally, his right knee disability, for the entire appeal period, is manifested by subjective complaints of pain, swelling, giving way, flare-ups, popping, and stiffness with flexion limited to no more than 120 degrees and extension to zero degrees. Moreover, as relevant to both knees, there is no evidence of ankylosis, recurrent subluxation or lateral instability, dislocation of semilunar cartilage, removal of semilunar cartilage, impairment of the tibia and fibula, genu recurvatum, or arthritis. By way of background, the Veteran was seen several times in service with complaints of bilateral knee pain. There is no evidence that range of motion was ever less than full. According to the service treatment records, an MRI in January 2004 showed bilateral minimal chondromalacia with small effusions in both knees, greater on the left. In May 2004, the Veteran was seen with complaints of bilateral knee pain and swelling. He reported that it usually remained below the patella, but had suddenly begun shooting over the knee cap and was worse on the left side. He received no relief from Tylenol, naproxen, or ibuprofen. In July 2004, the Veteran was seen again for knee pain, greater on the left side. He indicated that it felt like the knees wanted to give way. On examination, there was patellofemoral grind on the left and minimal tightness bilaterally. Full extension and 130 degrees of flexion was found bilaterally. There was no medial or lateral laxity. Lachman's was negative, pivot was negative, and tibial step-off was positive. He was diagnosed with bilateral plica syndrome and possible chondromalacia of the left patella. X-ray showed normal knees. In August 2004, the Veteran was found to have full range of motion in his knees, without pain. An April 2005 X-ray showed normal knees. In September 2006, the Veteran asked the VA medical center if he could be seen for knee pain that was so bad that he had to leave work. The pain had become worse over the last two to three weeks with no known recent injury. X-ray showed normal knees. The Veteran attended a VA examination in April 2005. His chief complaint was constant pain in both knees, worse on the left and with intermittent sharp pains bilaterally. Standing for prolonged periods made the symptoms worse. The Veteran had occasional flare-ups that were accompanied by the sense of an electric jolt in both knees. While he could perform his activities of daily living, he had one or two recent events where this was extremely difficult. He had a cane but did not often use it. The Veteran had no physician prescribed periods of incapacitation in the prior twelve months. His gait was antalgic and he walked with a limp, favoring his left leg. Flexion was to 120 degrees on the right and 110 degrees on the left. Extension was to zero degrees bilaterally. McMurray's and Lachman's testing were negative. There was patellar grind on the left, marked crepitation with range of motion on the left and an actual clunking sensation in the patella, and parapateller tenderness bilaterally, more pronounced on the left. There was no joint line tenderness, instability, weakness, incoordination, or further limitation of motion with repetition. The Veteran had increased pain in his knees with heel and toe walking. X-rays were normal. The examiner diagnosed bilateral plica syndrome and chondromalacia patellae. In September 2006, the Veteran submitted a statement explaining that his knees were chronically painful. The Veteran attended a VA examination in November 2006. He reported that he had no pain upon waking, but that by 9am, the left knee began to hurt and gradually worsened over the course of the day, becoming a 9 or 10 on the pain scale by the end of the day. About once a week, the pain continued into the night and the Veteran could not sleep. The right knee hurt three or four times per week, for one to two hours at a time. In both knees, he experienced the pain over his patella. Both knees popped, and the left knee locked on him on one occasion. There was no swelling. The Veteran did not use any knee supports or other assistive devices. General use of the knees made the disability worse. He treated the pain with Motrin and rest, and occasional ice and heat. He had tried an elastic brace, ointments, and Lortab without much success. On examination, there was no effusion, bilateral range of motion was 140 degrees flexion, zero degrees of extension. Drawer signs, Lachman's, and McMurray's were negative. There was some popping with patellar tracking, but it did not appear painful. Pressure produced some mild tenderness over the left patellar tendon, but there was no other tenderness of the left knee and no tenderness of the right knee. Gait was normal and he had no limp. Repetitive motion did not increase stiffness in his knees. X-ray showed normal knees. The examiner diagnosed chondromalacia of both knees. The Veteran was seen in April 2007 with complaints of knee pain, particularly on the left. The pain was primarily anterior in nature and around the knee cap. Range of motion is unclear, as it noted at one point that he had full extension, 120 degrees of flexion, and at another point that he had even extension and 30 degrees of flexion. Patellofemoral grind test was positive. There was no medial or lateral laxity. Lachman's, pivot, and McMurray's were negative. Stepoff was positive. There was no medial or lateral joint line tenderness. The Veteran was diagnosed with plica syndrome, left knee, and chondromalacia of the left patella. The medial wall plica was injected with Depo-Medrol and Xlocaine. The Veteran was put on an exercise program. After four months of exercise, he was to be referred for arthroscopy of the left knee. The Veteran attended a VA examination in April 2010. He reported no doctor-prescribed periods of bed rest or incapacitation in the prior year and no impediments to his activities of daily living, except that he complained he would not be able to do his job managing the Winn Dixie much longer due to severe bilateral knee pain. The Veteran's symptoms included pain infrapatellar and under the patella. The pain was a 5-6 on the pain scale and became worse as the day want on. He had to limp out of work, the knee became stiff if he sat too long and painful if he stood too long. Daily pain lasted two to four hours. The Veteran had no other functional limitations and described no significant flare-ups. He reported no physical therapy, injections, or prescribed medications during the prior twelve months, except for using somebody's Lortab, which helped. Flexion was to 130 and extension was full at zero. Medial and collateral ligament, anterior and post cruciate ligament, McMurray's, and grind test were all normal. There was no instability, painful motion, tenderness, spasms, edema, fatigue, lack of endurance, weakness, incoordination, instability, and loss of function with repetitive use. X-ray showed normal knees. The Veteran was diagnosed with bilateral knee chondromalacia of the patella and with left knee plica, resolved with IA injection and no residuals. Upon careful review of the evidence of record, the Board finds that the Veteran is not entitled to initial ratings in excess of the current 10 percent assigned for his left knee disability and the 10 percent assigned for his right knee disability. In this regard, the Veteran is currently assigned a 10 percent evaluation for each knee based on objective evidence of painful motion with limitation of flexion. He is rated under Diagnostic Code 5260 for limitation of leg flexion. As indicated previously, a 10 percent is assigned for flexion limited to 45 degrees, 20 percent for flexion limited to 30 degrees, and a maximum of 30 percent for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Consistently, the Veteran's flexion of his left knee has been no less than 110 degrees and his flexion of the right knee has been no less than 120 degrees. The only variation was at an April 2007 examination where extension was both described as full and limited to 30 degrees. Given the confusion in this record, it cannot be taken as an accurate reflection of the Veteran's range of motion at that time. In particular, flexion limited to 30 degrees would be extremely inconsistent with flexion at every other appointment or examination. As such, the Board finds that the evidence as a whole reflects that the Veteran's left knee flexion has not been limited to more than 110 degrees and his right knee flexion has not been limited to more than 120 degrees, even in contemplation of pain on motion. See DeLuca, supra. Therefore, the Board finds that the Veteran's bilateral knee disabilities do not result in initial ratings in excess of 10 percent under Diagnostic Code 5260. The Board has also considered whether higher or separation evaluations are available under Diagnostic Code 5261, which governs limitation of leg extension, and provides a 10 percent rating for extension limited to 10 degrees, a 20 percent rating for limitation to 15 degrees, a 30 percent rating for limitation to 20 degrees, a 40 percent rating for extension limited to 30 degrees, and a maximum of 50 percent for a limitation to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. There is no evidence that the Veteran has ever had limited extension of either knee, even in contemplation of painful motion. See DeLuca, supra. In fact, extension has been consistently described as zero degrees or full. Therefore, the Board finds that the Veteran's bilateral knee disabilities do not result in a compensable rating under Diagnostic Code 5261. Separate ratings can be assigned when the criteria for a compensable rating under both DC 5260 and DC 5261 are met. VAOPGCPREC 9-2004 (September 17, 2004), 69 Fed. Reg. 59990 (2004). However, the Veteran does not meet the criteria for a compensable rating under either Diagnostic Code 5260 or Diagnostic Code 5261. Thus, VAOPGCPREC 9-04 is not applicable. In considering the applicability of other diagnostic codes, the Board finds that Diagnostic Codes 5256 (ankylosis of the knee), 5257 (other impairment of the knee with recurrent subluxation or lateral instability), 5258 (dislocation of semilunar cartilage), 5259 (removal of semilunar cartilage), 5262 (impairment of the tibia and fibula), and 5263 (genu recurvatum) are not applicable, as the objective evidence does not show that the Veteran has any of these conditions. Specifically, the evidence fails to demonstrate ankylosis of either knee in that the Veteran is capable of motion bilaterally, albeit limited. Additionally, while the Veteran has complained of giving way and locking up, there is no medial or lateral laxity, or instability on examination, and objective testing fails to reveal subluxation or instability. There is also no evidence that the Veteran's semilunar cartilage is dislocated or has been removed. Furthermore, the evidence fails to demonstrate impairment of the tibia or fibula, or genu recurvatum. There is also no X-ray evidence of arthritis in either knee and, therefore, Diagnostic Code 5003 is inapplicable. In reaching the aforementioned conclusions, the Board has considered the overall disability picture demonstrated by the record to arrive at the appropriate level of functional impairment such to provide for fair compensation in this case. In so doing, the Board has carefully considered all applicable statutory and regulatory provisions to include 38 C.F.R. §§ 4.40 and 4.59 as well as the holding in DeLuca regarding functional impairment attributable to pain, particularly in light of the fact that the Veteran's disability is manifested by pain. The Veteran is already receiving a 10 percent rating for each knee for painful motion with limitation of flexion. As such, the Board finds that the effects of pain reasonably shown to be due to the Veteran's knee disabilities are already contemplated by the ratings assigned. 38 C.F.R. §§ 4.40, 4.45; DeLuca. The Board has considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected bilateral knee disabilities; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disabilities is not warranted. Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. An extra-schedular disability rating is warranted if 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 application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected bilateral knee disabilities with the established criteria found in the rating schedule. The Board finds that the Veteran's bilateral knee symptomatology is fully addressed by the rating criteria under which such disabilities are rated. There are no additional symptoms of his bilateral knee disabilities that are not addressed by the rating schedule. Moreover, to the extent that the Veteran's bilateral knee disabilities may interfere with his employability, such interference is addressed by the schedular rating criteria. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In this regard, 38 C.F.R. § 4.1 specifically states, "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." See also Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). Therefore, the Board finds that the rating criteria reasonably describes the Veteran's disability level and symptomatology for his service-connected disabilities. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, the Board acknowledges that the Veteran has reported that he does not feel he could work much longer; however, he is still employed full-time as a Winn Dixie manager and has not alleged that he was unemployable during the course of the appeal. Therefore, as there is no evidence of unemployability, a TDIU is not raised by the record. The Board has also considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims for initial ratings in excess of 10 percent for his bilateral knee disabilities. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and his initial rating claims must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. ORDER An initial rating in excess of 10 percent for chondromalacia of the left knee is denied. An initial rating in excess of 10 percent for chondromalacia of the right knee is denied. ____________________________________________ A. JAEGER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs