Citation Nr: 1300699 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 09-32 083 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an increased disability rating for a left knee condition, currently rated as 10 percent disabling for limited flexion, prior to October 13, 2010. 2. Entitlement to an increased disability rating for a left knee condition, currently rated as 10 percent disabling for limited flexion, from December 1, 2010. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from November 1970 through February 1974 and from September 1988 through December 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision mailed by the RO in May 2009, which among other issues, denied the Veteran's claim for a higher disability rating for his left knee disability. A timely notice of disagreement (NOD) which contested the RO's denial of a higher rating for the Veteran's left knee disability was received by VA in May 2009. After a statement of the case (SOC) was issued in June 2009, the Board perfected his appeal in August 2009, via VA Form 9 substantive appeal. During the pendency of this appeal, the RO issued a December 2010 rating decision that awarded a temporary total 100 percent disability rating pursuant to 38 C.F.R. § 4.30, for post-surgical convalescence from October 13, 2010 through November 30, 2010, following left knee surgery in October 2010. As this rating decision already provides a 100 percent disability rating for the prescribed period of convalescence, the Board will not consider that period in rating the Veteran's left knee disability. The issues on appeal have been characterized as styled on the title page to reflect the same. The Veteran testified during an October 2011 Board hearing that was held before the undersigned Veterans Law Judge. A transcript of those proceedings is associated with the record. In an October 2011 decision and remand, the Board remanded the Veteran's claim for a higher disability rating for his left knee disability to the Appeals Management Center (AMC) for further development, to include efforts to obtain any outstanding VA treatment records; arranging the Veteran to undergo a new VA examination of his left knee; and readjudicating the left knee rating issue. The Board is satisfied that the ordered development has been performed, and is prepared to proceed with its de novo consideration of the issue on appeal. As a final preliminary matter, the Veteran's appeal also initially included the issues of entitlement to a higher disability rating for cervical spine muscle strain rated as 10 percent disabling; a higher disability rating for right knee disability rated as 10 percent disabling; and separate disability ratings for right and left shoulder disabilities. Separate disability ratings for the Veteran's right and left shoulder were awarded by the RO in a June 2009 SOC. The Veteran has not expressed any intention of seeking further appeal regarding his shoulder disabilities, and clarified as much during his Board hearing. The Veteran's claims for higher ratings for his cervical spine and right knee disabilities were denied by the Board in an October 2011 decision and remand. In view of the foregoing, issues pertaining to the bilateral shoulder, cervical spine, and right knee disabilities do not remain on appeal. FINDINGS OF FACT 1. Prior to October 13, 2010, the Veteran's left knee disability was manifested by arthritis, chronic pain, left leg flexion to no less than 90 degrees, and loss of no more than 10 degrees of left leg extension. 2. From December 1, 2010, the Veteran's left knee disability has been manifested by post-surgical changes, improved but ongoing pain, left leg flexion to 105 degrees after repetitive motion, and full flexion even after repetitive motion. 3. From September 2, 2010 through October 13, 2010, the Veteran's left knee disability was manifested by mild lateral instability; lateral instability or recurrent subluxation of the knee is not shown after December 1, 2010. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for a left knee disability, prior to October 13, 2010, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5260, 5261 (2012). 2. The criteria for a disability rating in excess of 10 percent for a left knee disability, from December 1, 2010, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5260, 5261 (2012). 3. The criteria for a disability rating of 10 percent for lateral left knee instability, from September 2, 2010 through October 13, 2010, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper 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. VA's notice requirements apply to all five elements of a service-connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. Such notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, a March 2009 letter notified the Veteran of the information and evidence needed to substantiate his increased rating claims. The Veteran was also notified that a disability rating and an effective date for the award of benefits are assigned in cases where service connection is warranted. See Dingess, 19 Vet. App. 473. The Veteran's claims were subsequently adjudicated for the first time in a rating decision that was mailed in May 2009. Thus, because the VCAA notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. In addition, VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claims. His service treatment records, identified VA and private treatment records, claims submissions, and a transcript of his Board hearing testimony have been associated with the record. Additionally, VA examinations were performed in April 2009 and November 2011 to determine the symptoms and severity of the Veteran's left knee disability. The Board finds that these examinations, along with the other evidence of record, are fully adequate for the purposes of determining the extent of the Veteran's disabilities in light of the applicable diagnostic criteria. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Significantly, neither the Veteran nor his representative has identified, nor does the record otherwise indicate, any additional existing evidence that has not been obtained and is necessary for a fair adjudication of the claims decided herein. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Disability Evaluations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In cases where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, also appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. See 38 C.F.R. § 4.7. A. Left Knee Rating Prior to October 13, 2010 For the period before October 13, 2010, the Veteran's left knee disability was rated as being 10 percent disabling, based upon loss of left leg flexion, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5260. Under DC 5260, a 10 percent disability rating is assigned where flexion of the leg is limited to 45 degrees. A 20 percent disability rating is in order where leg flexion is limited to 30 degrees. A maximum schedular 30 percent disability rating is assigned where leg flexion is limited to 15 degrees. Although the Veteran has not urged the application of any other specific rating criteria, the Board has also considered the potential application of the other provisions of 38 C.F.R., Parts 3 and 4. Schafrath, 1 Vet. App. 589. In doing so, the Board notes that additional criteria for rating knee disabilities are available under DC 5261, which provide the criteria for knee disabilities based upon demonstrated loss of leg extension. Under DC 5261, a 10 percent disability rating is appropriate where leg extension is limited to 10 degrees. A 20 percent disability rating is in order where leg extension is limited to 15 degrees. A 30 percent disability rating is appropriate where leg extension is limited to 20 degrees. A 40 percent disability rating is assigned where leg extension is limited to 30 degrees. A maximum schedular 50 percent disability rating is awarded where leg extension is limited to 45 degrees. By way of reference, normal range of motion for the knee is from zero degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II (2012). Other additional criteria for rating knee disabilities are available under DCs 5256 (for ankylosis), 5258 (for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion), 5262 (for impairment of the tibia and fibula), and 5263 (for genu recurvatum). Nonetheless, as discussed below, the evidence does not show that the Veteran's left knee disability was manifested at any time by ankylosis, dislocated semilunar cartilage, impairment of the tibia and fibula, or gen recurvatum. In the absence of such manifestations, these DCs are inapplicable in this case. Rating criteria for knee disabilities are also provided under DC 5259 (for symptomatic removal of the semilunar cartilage). Nonetheless, DC 5259 does not provide for a schedular disability rating higher than 10 percent and therefore does not assist the Veteran in obtaining a higher disability rating. Hence, it is also inapplicable in this case. The evidence relevant to the staged period prior to October 13, 2010 includes VA treatment records dated January 2009 which reflect complaints of left knee pain. Notwithstanding the reported pain symptoms, the Veteran stated that he was able to attend karate classes. In March 2009, he returned for VA treatment, complaining of ongoing left knee pain, decreasing motion, and symptoms while kneeling. An examination of the left knee revealed full extension to zero degrees and flexion to 90 degrees before pain was reported by the Veteran. Lachman's and McMurray's tests for instability were negative. During an April 2009 VA examination, the Veteran reported progressively worsening pain symptoms in his left knee which he described as being constant and subject to flare-ups upon bending. He also reported infrequent locking episodes which caused occasional falls. Functionally, he stated that he was able to walk distances of up to a half mile and that was able to sit and stand without difficulty. Occupationally, he reported that he was working on a full-time basis as a computer technician. During examination of the knee, the Veteran demonstrated a normal gait. No ankylosis, bone loss, ligamentous laxity, or knee instability was observed. X-rays revealed moderately severe osteoarthritis in the knee. Demonstrated range of motion, which was measured by a goniometer, included full extension to zero degrees and flexion to 95 degrees with minimal crepitus and moderate pain. After three repetitions of motion, the Veteran continued to report moderate pain as well as mild to moderate weakness and fatigue. Nonetheless, the examiner did not observe any further loss of motion after repetitive motion. With regard to the functional capacity of the knee, the examiner determined that the Veteran's ability to exercise, participate in sports, and recreational activities were moderately limited; however, the examiner did not find any limitations of the Veteran's other activities of daily living. An MRI of the left knee performed in May 2009 revealed markedly severe medial compartment degenerative changes with near complete absence of medial meniscus and articular cartilage. The Veteran was treated with Kenalog and a marcaine injection in the knee. Additional Cortisone shots were administered during a September 2009 treatment. At that time, the Veteran reported that, despite his ongoing left knee symptoms, he was still training in karate. During VA treatment in July 2010, the Veteran reported that his left knee pain had been worsening. He stated that he discontinued his karate training due to his knee pain. During an August 2010 VA treatment, the Veteran reported that he was able to walk only several blocks and was having difficulty walking up stairs. An examination of the left knee revealed tenderness to palpation over the medial compartment and motion which included full extension and flexion to 120 degrees. The knee continued to be stable to varus and valgus testing. Lachman's tests were also negative. Consistent with the May 2009 MRI, x-rays of the knee revealed significant medial and patellofemoral arthritis, more significant in the left knee than in the right. The benefits and risks of left knee replacement surgery were discussed with the Veteran. During private treatment at Gikk Ortho Specialists in September 2010, the Veteran reported that he was able to walk comfortably for less than a block and was unable to use stairs. He also reported symptoms of stiffness, locking, and difficulty sleeping. During examination of the knee, the Veteran demonstrated a normal gait. During range of motion testing, the Veteran demonstrated a loss of 10 degrees of extension and flexion to 124 degrees that was accompanied by medial joint line pain. For the first time, mild varus and valgus laxity was noted, although anterior and posterior stability was good. Once again, x-rays of the left knee revealed grade IV left knee arthritis of the medial compartment. The Veteran elected to undergo left knee surgery, and a unicomparmental partial left knee replacement procedure was performed in October 2010 by a private orthopedist at Midwest Surgical Hospital. As noted above, a temporary total disability rating was awarded to the Veteran for convalescence following his October 2010 surgery. In view of the foregoing evidence, the Veteran is not entitled to a disability rating higher than 10 percent for his left knee disability, either under DC 5260 (for loss of flexion) or DC 5261 (for loss of extension), for the period before October 13, 2010. In that regard, the evidence simply does not show that flexion of the left leg was limited to 45 degrees or less as contemplated by a compensable evaluation for limited flexion. On the contrary, the record prior to October 13, 2010, fails to show limitation of flexion any less than 90 degrees. Further, while the Veteran's limitation of extension of 10 degrees is consistent with the 10 percent evaluation assigned, the record does not show limitation of extension of 15 degrees or more as contemplated by an evaluation in excess of 20 percent. Given the extent of the Veteran's demonstrated left leg flexion and extension, he is also not entitled to an evaluation in excess of 10 percent pursuant to DC 5260 or 5261. The Board observes that VA General Counsel has issued a precedential opinion holding that "separate ratings may be assigned under Diagnostic Code 5260 and Diagnostic Code 5261, where a Veteran has both a limitation of flexion and limitation of extension of the same leg; limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg." See VAOPGCPREC 9-2004 (September 17, 2004). However, separate disability evaluations based on limitation of flexion and limitation of extension are not warranted. While the Veteran has a compensable level of limited extension prior to October 13, 2010, the evidence does not show that his limited flexion rises to a compensable level. In holding that the criteria for a higher evaluation based on limitation of motion is not warranted, the Board notes that, under DeLuca v. Brown, 8 Vet. App. 202 (1995), VA must consider "functional loss" of a musculoskeletal disability separately from consideration under the Diagnostic Codes. "Functional loss" may occur as a result of weakness or pain on motion. The evidence shows that, prior to October 13, 2010, the Veteran's left knee disability was manifested by chronic pain that was particularly present during motion of the knee. Nonetheless, given the extent of motion shown by the Veteran during treatment and examination, and even taking his reported pain into full consideration, there is no evidence of a disability picture that is commensurate to a limitation of left leg flexion to 45 degrees or less or loss of left leg extension of 15 degrees or more. See DeLuca, 8 Vet. App. at 204-07; 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5260 and 5261. The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the record does not show that, prior to October 13, 2010, the Veteran's left knee disability markedly interfered with his employment status beyond that already contemplated by the assigned disability rating. Rather, the evidence shows that the Veteran was continuously employed as a computer technician. Moreover, there is no indication that this disorder has necessitated frequent, or indeed any, periods of hospitalization during the time period being considered. As such, for the period before October 13, 2010, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1), which concern the assignment of extra-schedular evaluations in "exceptional cases." See Thun v. Peake, 22 Vet. App. 111, 115 (2008). The evidence does not support the assignment of a rating higher than 10 percent for the Veteran's left knee disability, for the period before October 13, 2010. To that extent, this appeal is denied. 38 C.F.R. §§ 4.3, 4.7. B. Left Knee Rating from December 1, 2010 Following the period of temporary total disability awarded to the Veteran from October 13, 2010 through November 30, 2010 pursuant to 38 C.F.R. § 4.30, the disability rating for the Veteran's left knee disability was returned to 10 percent. Also with respect to the period from December 1, 2010, the Veteran's left knee disability may be rated pursuant to the criteria under DC 5260 (loss of flexion) or DC 5261 (loss of extension). As discussed in greater detail below, the evidence relevant to the period from December 1, 2010 does not show that the Veteran's disability has been manifested by ankylosis, dislocated semilunar cartilage, symptomatic removal of semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum. As such, DCs 5256, 5258, 5259, 5262, and 5263 also are not for application in rating the Veteran's left knee disability from December 1, 2010. The record contains VA treatment records which pertain to treatment received by the Veteran from December 2010 through February 2012. Although these records pertain largely to treatment of the Veteran's right knee disability, there is no indication in those records of any treatment related to the left knee. During the March 2011 Board hearing, the Veteran testified that he was experiencing instability in both knees that was causing him to fall. He testified that he was unable to participate in recreational activities due to his knee, but stated that he was employed in the IT department for Immigration Services. During a November 2011 VA examination, the Veteran reported post-surgical improvement of his left knee pain, but stated that he was still experiencing some pain and stiffness. He reported flare-ups of moderate severity that were generally caused by weather changes, increased activity, prolonged weightbearing, and using stairs. He stated that these flare-ups occurred approximately once every two weeks and lasted two or three days in duration. The Veteran also reported stiffness in his knee, particularly in the morning. He denied any current episodes of giving way, buckling, instability, locking, or catching. Functionally, he stated that he was able to walk distances of up to one mile and was able to stand for up to 15 to 20 minutes. He reported that his private surgeon has restricted him from high-impact activities such as running, jogging, and karate. Occupationally, he stated that he was not working, as his contract as a computer technician with his employer had expired. Although he stated that he had been off from work for a month following his left knee surgery, he stated that he did not miss any other work or experience significant functional impairment after surgery. He also denied having any periods of incapacitation due to his left knee, other than during his post-operative recovery. During the examination, the Veteran demonstrated a slightly antalgic and altered gait. Range of motion of the knee, measured with a goniometer, included full extension and flexion to 110 degrees. Repetitive motion resulted in increased pain and flexion to 105 degrees (indicating an additional loss of 5 degrees of flexion after repetition). No instability was noted and muscular strength of the left leg was full. X-rays of the left knee revealed post-surgical changes without hardware complications. Loose bodies were seen adjacent to the left lateral condyle and overlying the left tibial plateau. The examiner opined, that occupationally, the Veteran would experience problems with kneeling, squatting, prolonged weightbearing, going up and down stairs, climbing, carrying, bending, lifting, or twisting involving the knee. Nonetheless, the examiner determined that the Veteran would not likely be completely precluded from following or maintaining substantially gainful employment as a result of his left knee disability. Based upon the foregoing, the Veteran is not entitled to a disability rating greater than 10 percent for his left knee disability for the period from December 1, 2010. In that regard, he has reported general post-surgical improvement in his pain symptoms. Post-surgically, he has shown full extension to zero degrees and flexion to 110 degrees, limited only by an additional five degrees after repetition. As the record does not show limitation of flexion to 45 degrees or less or limitation of extension to 10 degrees or more after December 1, 2010, the Veteran has not shown either a compensable evaluation for limited flexion or extension during this period. Thus, the criteria for a higher evaluation under pursuant to either DC 5260 or 5261 as well as separate compensable evaluations based on limitation of flexion and extension are not met. Once again, with respect to the period from December 1, 2010, the disability picture shown during examination also does not warrant consideration of a higher rating based upon the standards set forth in DeLuca. In that regard, the extent of motion shown during the November 2011 VA examination, even after repetitive motion, is not commensurate to a limitation of left leg flexion to 45 degrees or less or loss of left leg extension of 15 degrees or more. See DeLuca, 8 Vet. App. at 204-07; 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5260 and 5261. Similarly, the overall disability picture since December 1, 2010 does not warrant that the Board remand this matter for extra-schedular procedural actions for that period either. In that regard, the Board recognizes that the Veteran is not currently working. Nonetheless, the Veteran's employment status appears to be the result of his contract status with his employer and does not appear to be due to the severity of his left knee disability. As noted in November 2011 VA examination report, the Veteran has denied missing any work or experiencing any significant functional impairment since his period of post-surgical recovery. Moreover, there is no indication that the left knee disability has required the Veteran to seek in-patient treatment since the October 2010 surgery. In view of the same, for the period from December 1, 2010, the Board will also not remand this matter for the extraschedular procedural actions outlined in 38 C.F.R. § 3.321(b)(1), for the period from December 1, 2010. Thun, 22 Vet. App. at 115. The evidence also does not support the assignment of a rating higher than 10 percent for the Veteran's left knee disability, for the period from December 1, 2010. To that extent, this appeal is denied. 38 C.F.R. §§ 4.3, 4.7. C. Disability Rating for Left Knee Instability VA General Counsel held in VAOPGCPREC 23-97 that a Veteran who simultaneously has arthritis and instability of the knee may be rated separately for each under DCs 5003 and 5257, provided that the separate rating is based upon additional disability. Here, and as noted above, the radiological evidence shows that the Veteran has sustained significant medial and patellofemoral arthritis in his left knee that has been rated on the basis of lost flexion. The evidence through August 2010 shows that the Veteran's left knee was consistently stable to objective varus, valgus, and Lachman's testing. The Board notes, however, that varus and valgus testing during private treatment on September 2, 2010 revealed, for the first time, objective signs of mild left knee instability. This instability appears to have remained through the Veteran's partial left knee surgery on October 13, 2010. In that regard, the post-surgical evidence since December 1, 2010 shows that the Veteran has denied having any episodes of instability since his surgery. Indeed, objective testing performed since his surgery has not revealed any signs of instability. Under 38 C.F.R. § 4.71a, DC 5257, impairment of the knee due to slight recurrent subluxation or lateral instability of the knee is assigned a 10 percent disability rating. Disability due to moderate subluxation or lateral instability of the knee is assigned a 20 percent disability rating. A maximum schedular 30 percent disability rating is assigned for disability due to severe subluxation or lateral instability of the knee. Here, the private treatment records from September through October of 2010 show that the lateral instability in the Veteran's knee was characterized as being "mild". Although the Board acknowledges that the Veteran did report during his April 2009 VA examination that he was having episodes of locking in his left knee with occasional falls, the objective varus, valgus, and Lachman's testing performed during that examination, and subsequently through September 2010, did not reveal any objective signs of instability. In the absence of any objective evidence of left knee instability prior to September 2, 2010, the credibility of the Veteran's reported instability prior to that date is somewhat diminished. As such, the Board affords greater probative weight to the objective findings expressed in his treatment records and the VA examination reports from April 2009 and November 2011. Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (holding that in weighing credibility, VA may consider such factors as interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness). Based upon the foregoing, the Veteran is entitled to an additional disability rating of 10 percent for mild lateral instability in his left knee, from September 2, 2010 through October 13, 2010. To that extent, this appeal is granted. 38 C.F.R. §§ 4.3, 4.7. D. Additional Staged Periods The Board finds that there is no basis for "staged" ratings in this case. Rather, the extent of the Veteran's left knee disabilities, which have been shown upon examination, are fully contemplated by the disability ratings assigned. E. Rice Consideration In denying the Veteran's claim for increased ratings, the Board observes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. Throughout much of the appeal, the Veteran worked as a computer technician. While the most recent VA examination report dated in November 2011 indicates that he was not longer working, his change in employment status was attributed to the expiration of his employment contract. Prior to the expiration of his contract, it was noted that the Veteran reported that he had not missed work following his period of convalescence from his knee surgery. Further, the Veteran did not report any periods of incapacitation due to his left knee other than his post-operative recovery period. The Veteran has submitted no evidence, and the record does not otherwise show that he is unemployable because of his service-connected left knee disabilities. There has been no observation or notation of any impairment or complaint productive of occupational impairment that would suggest the Veteran is not employable because of his service connected knee problems. Accordingly, the Board concludes that the issue of TDIU has not been raised in this case. ORDER Entitlement to an increased disability rating for a left knee condition, currently rated as 10 percent disabling for limited flexion, prior to October 13, 2010, is denied. Entitlement to an increased disability rating for a left knee condition, currently rated as 10 percent disabling for limited flexion, from December 1, 2010, is denied. Entitlement to an initial disability rating of 10 percent for left knee lateral instability, from September 2, 2010 through October 13, 2010, is granted subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs