Citation Nr: 1304189 Decision Date: 02/06/13 Archive Date: 02/19/13 DOCKET NO. 10-30 197 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to an initial rating in excess of 10 percent for right knee instability, status post partial meniscectomy and ACL reconstruction. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from November 1985 to September 2008. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. While the March 2009 rating decisions addressed numerous claims, the Veteran only filed a notice of disagreement with the outcome of three issues: (1) the 10 percent rating assigned to his grant of service connection for right knee instability; (2) service connection for tinnitus; and (3) the noncompensable rating assigned to his grant of left ear hearing loss. The Veteran did not file a notice of disagreement with the assignment of a 10 percent disability evaluation for degenerative joint disease of the right knee. The Veteran subsequently perfected an appeal as to (1) the disability evaluation assigned for his right knee instability and (2) the denial of service connection for tinnitus. However, he did not perfect an appeal of the rating assigned for his left ear hearing loss disability. The Veteran appeared and testified at a personal hearing in May 2011 before the undersigned Veterans Law Judge. A transcript of the hearing is contained in the record. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, tinnitus had its onset in service. 2. Objective medical evidence of record shows that the Veteran's right knee instability is manifested by mild instability and subluxation, as well as pain, effusion and "locking." The record also contains credible lay evidence of frequent episodes of pain, effusion and "locking." CONCLUSIONS OF LAW 1. Tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The criteria for an initial rating of 20 percent for a right knee instability, status post partial meniscectomy and ACL reconstruction, have been met. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.71, Diagnostic Code 5257, 5258. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). The notice requirements of the VCAA require VA to notify the veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The requirements apply to all five elements of a service connection claim: (1) veteran status, (2) existence of a disability, (3) a connection between the veteran's service and the disability, (4) degree of disability, (5) and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule); see also Sanders at 881. The RO provided notice to the Veteran in an August 2008 letter, issued prior to the decision on appeal, regarding what information and evidence is needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the veteran, and the types of evidence that will be obtained by VA. The letter additionally provided notice regarding how effective dates and initial ratings are assigned. Dingess, 19 Vet. App. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. See generally Turk v. Peake, 21 Vet. App. 565 (2008) (where a party appeals from an original assignment of a disability rating, the claim is classified as an original claim, rather than as one for an increased rating); see also Shipwash v. Brown, 8 Vet. App. 218, 225 (1995); see also Fenderson v. West, 12 Vet. App. 119 (1999) (establishing that initial appeals of a disability rating for a service- connected disability fall under the category of "original claims"). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file includes service treatment records, private medical records, and VA examination reports. The Veteran has not indicated that any treatment records remain outstanding, and has not described VA treatment outside of the VA examinations. With respect to the examinations conducted in conjunction with this appeal, the Board observes that the findings contained therein are more than adequate to adjudicate the Veteran's claims. With respect to the Veteran's right knee claim, the Veteran was afforded VA examinations in October 2008 and August 2010. These examination reports reflect that each examiner reviewed the Veteran's prior medical history, recorded the Veteran's current complaints, conducted an appropriate examination, and rendered diagnoses and assessments consistent with the other evidence of record. Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations or opinions as to the Veteran's right knee instability claim has been met. 38 C.F.R. § 3.159(c) (4) ; Barr v. Nicholson, 21 Vet. App. 303 (2007). As noted above, the Board is granting the Veteran's service-connection claim for tinnitus herein. Thus, no further development is necessary as to that issue. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claims for service connection, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran has been an active participant in the claims process, providing evidence and letters in support of his claim. Thus, he has been provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the veteran. See Sanders at 881. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374, Dingess at 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Service Connection for Tinnitus In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). For the showing of chronic disease, there must be a combination of sufficient manifestations to identify the disease entity and sufficient observation at the time, as distinguished from isolated findings or a diagnosis including the word "chronic". 38 C.F.R. § 3.303. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (non-precedential). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994); Charles v. Principi, 16 Vet. App 370, 374 (2002). Lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time. 38 U.S.C.A. § 1111. Factual Background and Analysis Service treatment records include the Veteran's enlistment medical history and evaluation. He denied ear problems and passed a hearing examination, although his left ear hearing appears to show some hearing loss at 6000 hertz. There is no notation regarding tinnitus. On his retirement medical history and evaluation in May 2008, the Veteran complained of hearing loss, worse in the left than right. While he did not specifically complain of tinnitus during his evaluation, he filed his claim of entitlement to service connection for tinnitus and bilateral hearing loss in August 2008, prior to his official retirement. The Veteran's DD 214 reveals that he served on active duty for more than 22 years. For roughly 18 of those years his duty MOS was as a Tactical Air Operations Control Technician. For the other 3+ years his duty MOS was as a Tactical Air Operations Control Repairer. On September 2, 2010, the Department of Veterans' Affairs, Veterans Benefits Administration issued Fast Letter 10-35. The subject was: Modifying the Development Process in Claims for Hearing Loss and/or Tinnitus. That letter introduced the Duty MOS Noise Exposure Listing, a rating job aid for determinations regarding service connection of hearing loss and/or tinnitus. The Duty MOS Noise Exposure Listing is a compilation of Department of Defense-verified lists of military occupational specialties (MOSs) and the corresponding probability of hazardous noise exposure. The Fast Letter indicated that when a claim for hearing loss and/or tinnitus is received, the decision maker must review the claim for: Sufficient evidence of a current disability (including lay evidence); and evidence of hearing loss and/or tinnitus in service; or records documenting an event, injury, disease, or symptoms of a disease potentially related to an audiological disability. If there is no documented evidence of an in-service illness, injury, or event with which the claimed conditions could be associated, the Duty MOS Noise Exposure Listing will be considered. Based on the Veteran's records, each duty MOS or duty assignment documented will be reviewed for a determination as to the probability of exposure to hazardous noise on the Duty MOS Noise Exposure Listing. If the duty position is shown to have a "Highly Probable" or "Moderate" probability of exposure to hazardous noise, exposure to such noise will be conceded for purposes of establishing the in-service event. According to the Duty MOS Noise Exposure Listing, the Veteran's duty MOSs had a moderate probability of exposure to hazardous noise, and thus, the VA concedes exposure to hazardous noise. In October 2008, the Veteran was afforded a VA audio examination. He reported occasional tinnitus, which "began many years ago." He reported that his tinnitus would occur intermittently and last up to two hours. The examiner did not specifically provide an opinion as to the etiology of the Veteran's tinnitus, and only relayed the Veteran's lay history as tinnitus is a subjective disorder. In May 2011, the Veteran testified that his tinnitus began in service, and he believed it was caused by the droning noise associated with his Duty MOS. He reported his tinnitus is most noticeable in quiet environments or when there was significant background noise, and that his tinnitus has occurred on and off since service. The Board finds the Veteran's statements regarding the onset and continuation of his tinnitus to be credible. His exposure to hazardous noise is conceded due to his Duty MOSs, and he had the same level of exposure for 22+ years. Significantly, he filed a claim of entitlement to service connection for tinnitus prior to his retirement in 2008. As tinnitus is a wholly subjective disorder, the August 2008 claim allows the Board to know that the disability began in service. His credible statements of ongoing tinnitus, supported by February 2011 friend statement, show continuity of the disability and a current disability. As such, entitlement to service connection for tinnitus is warranted. Higher Evaluation for Right Knee Instability Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. The assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. Any change in Diagnostic Code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In this case, the Board has considered whether another rating code is "more appropriate" than the one used by the RO. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). A veteran who has degenerative arthritis and instability of the knee may receive separate ratings, provided that any separate rating must be based upon additional disability. See VAOPGCPREC 23-97, citing Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Accordingly, based on the medical evidence demonstrating both instability and arthritis of the right knee, the Board agrees with the RO that separate ratings for the service-connected right knee disabilities under Diagnostic Codes 5010 and 5257/5258 are appropriate. Factual Background and Analysis The Veteran's right knee disabilities are currently rated under 38 C.F.R. §§ 4.71a, 5257 [knee, other impairment of], and Diagnostic Code 5010 [arthritis due to trauma]. Diagnostic Code 5010 directs that arthritis substantiated by x-ray findings be rated under Diagnostic Code 5003 [arthritis, degenerative], which includes consideration of range of motion codes 5260 and 5261. In the March 2009 rating decision, the RO granted service connection for both right knee instability and right knee degenerative joint disease, and provided separate 10 percent ratings for his right knee disabilities. The Veteran only appealed the initial 10 percent rating assigned to his right knee instability. Accordingly, an appeal of the evaluation assigned for degenerative joint disease of the right knee is not currently before the Board. The medical evidence of record indicates that the Veteran's service-connected right knee disabilities are primarily manifested by pain, limitation of motion and instability, which is congruent with the criteria set out in both his degenerative joint disease and instability of the right knee. Pertinently, there is no medical or lay evidence of ankylosis, malunion or nonunion of the tibia and fibula, or genu recurvatum. Thus, Diagnostic Codes 5256, 5262 and 5263 do not apply in this case. The Veteran's right knee instability is currently rated under Diagnostic Code 5257. Diagnostic Code 5257 provides a 30 percent rating for severe recurrent subluxation or lateral instability, a 20 percent rating for moderate recurrent subluxation or lateral instability, or a 10 percent rating for slight recurrent subluxation or lateral instability. The Board notes that words such as "slight," "moderate," and "severe" are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." See 38 C.F.R. § 4.6. The Veteran's service-connected right knee instability is currently rated 10 percent disabling. To warrant a 20 percent disability rating under Diagnostic Code 5257, the evidence must demonstrate that subluxation and/or instability of the knee is moderate. During the October 2008 VA joint examination, the Veteran reported that during service he underwent two knee surgeries. The first surgery repaired a torn ACL (anterior cruciate ligament), however, he continued to have swelling, pain and instability. He underwent a second surgery in 1998 to remove his meniscus. Despite the two surgeries in service, the Veteran continued to complain of pain, instability, stiffness, weakness, locking and effusion. Objectively, he was noted to have crepitus, effusion, and painful motion. He was noted to have mild anterior/posterior instability. On his July 2010 substantive appeal, the Veteran stated that the 2008 examiner was incorrect regarding his report of subluxation. The Veteran stated that his knee dislocates "regularly, on almost a daily basis." He indicated that he has intense pain in his knee joint if he places the majority of his weight on his right knee. He also stated that his knee will swell after walking on uneven ground for a short period of time. He indicated that his knee should have at least a 20 percent evaluation, and that he has been told by physicians that he will need a full knee replacement in the future. The Veteran continued to complain of pain, stiffness, and giving way during his August 2010 VA examination. He did not endorse instability or locking. Objectively, he suffered from crepitus, tenderness, and instability. Based upon ligament stability testing he was assessed with mild anterior/posterior instability. He was also noted to have mild subluxation of the collateral ligament at 30 degrees of flexion. In May 2011, the Veteran provided a "knee examination" worksheet. It appears this worksheet was filled out by a private physician, although the handwriting is difficult to read. The worksheet noted "no gross instability," and knee flexion contracture to 15 degrees. A suggestion of steroid injections and pain medications were noted under "treatment." During his May 2011 Board hearing, the Veteran again described the surgeries to his ACL and meniscus in service, but additionally stated that "several months after they removed [80 percent] of his meniscus...[he] ended up tearing his graft" and he retired from service shortly thereafter. He stated his knee was "pretty unstable" when he was discharged. See Hearing Transcript, page 5-6. He stated he does not wear a knee brace because he is no longer active. He described a painful range of motion, and instances where his right knee "popped out" of place. See Hearing Transcript, page 7. On occasion he would experience a sharp pain in his right knee which was so severe he would nearly fall (or in fact fall) in his attempts to immediately take his weight off his right leg. See Hearing Transcript, page 8. The Veteran indicated that the knee examination "worksheet" he provided was filled out by a private physician told him he had "final stage" arthritis and that he would eventually need a knee replacement. After his right knee would "pop" and swell he would have an acute symptom of "pretty limited" motion. When asked if his right knee "locked," the Veteran testified that "it doesn't do it the same way it used to...now, there's a lot of popping. [He] can feel it kind of shift over where, if [he] takes the weight off and lets it hang, it'll shift back. But it doesn't really lock the way it used to." See Hearing Transcript, page 8. When asked how frequently his knee would "lock", the Veteran replied: "the locking as far as having to shift for [me] to put weight on it and stuff like that? That's kind of actually regular. That'll do that a few times a week." Additionally, during the Board hearing the Veteran incorrectly recalled that the last time he had a VA examination was in 2008. He indicated that his knee continued to affect him to the same degree as it did in 2008, but that he was significantly less active. In essence, the Veteran testified that his right knee symptoms were worse than they were during the 2008 examination (same symptoms with less activity). At the time of the May 2011 Board hearing, however, the Veteran had undergone a VA joints examination, which included a thorough examination of his right knee instability, 9 months prior. Moreover, the Veteran submitted a more recent from his private health care provider that included contemporaneous physical findings in March 2011, only two months prior to the hearing. As such, the Board does not find that remand for an additional examination is required. Under Diagnostic Code 5257, for knee subluxation and instability, the Board finds that a rating in excess of 10 percent is not warranted. Both VA examiners indicated the Veteran had objective mild anterior/posterior instability of his ligaments. The 2010 examiner noted the Veteran had mild subluxation of his collateral ligament. And the March 2011 private physician noted on the knee examination "worksheet" that the Veteran did not have "gross instability" of his right knee. The Veteran has subjectively argued that his knee is more unstable than is contemplated by a 10 percent rating, and has described "giving way" of his knee. However, his definition of "giving way" was described in his hearing as a sharp, intense pain which causes him to not want to put weight on his knee. While the Board finds the Veteran is competent to describe the symptoms of his right knee instability, and he is credible in his assertions that he has feelings of "popping" and "giving way," the medical examiners were able to determine the level of severity of his instability with ligament testing. As such, the medical and lay evidence of record do not show that his right knee instability is of a "moderate" or "severe" level, and is contemplated by the 10 percent assigned under Diagnostic Code 5257 for "slight" instability or subluxation. The Board has considered application of Diagnostic Code 5258, pertaining to dislocated semilunar cartilage. Indeed, the Veteran underwent cartilage-related right knee surgeries during service. Diagnostic Code 5258 provides for a 20 percent rating where the symptoms include frequent episodes of "locking," pain, and effusion into the joint. These criteria are conjunctive; all three elements must be met. See Melson v. Derwinski, 1 Vet. App. 334 (June 1991) [use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met]; compare Johnson v. Brown, 7 Vet. App. 95 (1994) [only one disjunctive "or" requirement must be met in order for an increased rating to be assigned]. The Board notes that the Veteran has reported, and VA examiners have identified pain, effusion, and crepitus in his right knee. Additionally, the Veteran complains of occasional "locking" of his right knee. During the 2008 VA examination, he reported his knee would "lock" one to two times per year. During the 2010 VA examination, the Veteran did not report locking or effusion in the prior year; however, he did have objective crepitus. During his May 2011 Board hearing, the Veteran initially indicated that his knee did not "lock" like it used to in 2008, but reported he continued to regularly have problems with self-control of the joint. While the medical evidence of record suggests that his "locking" improved between the 2008 and 2010 VA examinations, the Veteran has testified that his knee symptoms are worse. Resolving reasonable doubt in the Veteran's favor, the Board finds that a rating of 20 percent is warranted for right knee instability, under Diagnostic Code 5258. The Board adds that the Veteran cannot be availed by application of Diagnostic Code 5259 [removal of semilunar cartilage, symptomatic] because he is already in receipt of the maximum award allowable under that section, 10 percent, under the diagnostic codes for arthritis and limitation of motion. The Veteran's complaints of right knee painful motion and limited motion are contemplated by his 10 percent rating for degenerative joint disease. The provisions of 38 C.F.R. § 4.40 and § 4.45 are for consideration with respect to the rating under Diagnostic Code 5010. As he did not appeal the initial 10 percent rating assigned for degenerative joint disease of the right knee, those symptoms are not addressed in this decision. In Fenderson v. West, 12 Vet. App. 119 (1999), the Court discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. While the medical evidence of record indicates that the Veteran may not meet the full criteria for a 20 percent rating under Diagnostic Code 5258 after August 2010, the Board has resolved reasonable doubt in the Veteran's favor regarding his lay descriptions of his knee symptoms and provided him with the 20 percent rating for the entire time on appeal. Extraschedular considerations Under Floyd v. Brown, 9 Vet. App. 88, 95 (1996), the Board cannot make a determination as to an extraschedular evaluation in the first instance. See also VAOPGCPREC 6-96. However, the Board can address the matter of referral of a disability to appropriate VA officials for such consideration. According to VA regulations, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1); see also Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App, 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran'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 veteran's disability picture requires the assignment of an extraschedular rating. With respect to the initial inquiry posed by Thun, the Board has been unable to identify an exceptional or unusual disability picture with respect to the Veteran's service-connected right knee instability. The medical evidence fails to demonstrate symptomatology of such an extent that application of the ratings schedule would not be appropriate. In fact, as discussed in detail above, the evidence demonstrates that the Veteran's right knee instability is manifested by pain, effusion, crepitus and lateral instability that is slight, as well as some "locking." His symptoms of painful motion and limited motion are separately addressed by his service connection for degenerative joint disease of the right knee, which is not currently on appeal. Such symptomatology is specifically contemplated under the rating criteria for the Veteran's currently-assigned 20 percent rating. Accordingly, the Board finds that the Veteran's disability picture has been contemplated by the ratings schedule. Since the available schedular evaluation adequately contemplates the Veteran's level of disability and symptomatology, the second and third questions posed by Thun become moot. The Board therefore has determined that referral of the Veteran's service-connected right knee disabilities for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. Rice considerations 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) is part of a claim for an increased rating. The record reflects that the Veteran is currently employed. Accordingly, the Board concludes that a claim for total disability based on unemployability has not been raised by either the Veteran or the record. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for tinnitus is granted. Entitlement to an initial rating of 20 percent, and no higher, for right knee instability, status post partial meniscectomy and ACL reconstruction is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs