Citation Nr: 1306945 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 04-01 811 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an initial disability rating for service-connected degenerative joint disease (DJD) of the right knee disability, in excess of 10 percent from December 1, 2001 and 30 percent from August 13, 2009. 2. Entitlement to an initial disability rating for service-connected post-operative torn right medial meniscus of the right knee, in excess of 10 percent disabling. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from July 1977 to October 1977 and from November 1990 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which granted service connection for DJD of the right knee, post-operative torn medial meniscus, and established a temporary total disability rating, effective July 15, 2001, and a 10 percent evaluation from December 1, 2001. The Veteran disagreed with the assigned 10 percent disability rating and a statement of the case (SOC) was issued in December 2003, which established a separate 10 percent disability rating for DJD of the right knee. The Veteran perfected his appeal by filing a timely substantive appeal (VA Form 9) in January 2004. In May 2009, the Veteran presented sworn testimony during a videoconference hearing, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims file. In a July 2009 Board decision, the claims were remanded for further evidentiary development. In a July 2010 rating decision, the VA Appeals Management Center (AMC) increased the disability rating for the Veteran's service-connected DJD of the right knee to 30 percent, effective August 13, 2009. A supplemental statement of the case (SSOC) was issued in July 2010. In April 2012, the Board again remanded the Veteran's claims for further development. As will be discussed below, a review of the record reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The VA AMC continued the previous denials in a November 2012 SSOC. The Veteran's VA claims file has been returned to the Board for further appellate proceedings. FINDINGS OF FACT 1. The Veteran's service-connected right knee disability is manifested by x-ray evidence of DJD and pain with limitation of motion. 2. The right knee disability is manifested by subjective complaints of instability, but with no objective medical evidence lateral instability or recurrent subluxation. 3. The Veteran's service-connected right knee disabilities do not present a disability picture so exceptional or unusual as to render impractical the application of the schedular rating standards. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent from December 1, 2001, and 30 percent from August 13, 2009, for the Veteran's service-connected DJD of the right knee are not met. 38 U.S.C.A. § 5107 (West 2002 & West Supp. 2012); 38 C.F.R. §§ 4.71, 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261 (2012). 2. The criteria for an initial disability rating in excess of 10 percent for the post-operative torn right medial meniscus are not met. 38 U.S.C.A. §§ 1110, 1116(f), 5107 (West 2002 & West Supp. 2012); 38 C.F.R. §§ 4.71, 4.71a, Diagnostic Code 5259 (2012). 3. The requirements for referral of the Veteran's increased rating claims for his service-connected right knee disabilities to the appropriate VA authority for extraschedular consideration have not been met. 38 C.F.R. § 3.321(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits and must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that claimant is expected to provide. Further, in Dingess v. Nicholson, 19 Vet. Ap. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service connection claim, VA is required to review the evidence presented with the claim and to provide the claimant with notice of what evidence not previously provided will help substantiate his/her claim. See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Specifically, VA must notify the claimant of what is required to establish service connection and that a disability rating and effective date for the award of benefits will be assigned if service connection is awarded. As for the service-connected right knee disabilities, the claims for higher disability ratings are "downstream" issues in that they arose from an initial grant of service connection. Prior to the October 2002 rating decision, the RO issued a letter in July 2002 that advised the Veteran of the evidence necessary to substantiate his claim for service connection and of his and VA's respective obligations with regard to obtaining evidence. As previously noted, in the October 2002 rating action, the RO granted service connection for DJD of the right knee with post-operative torn medial meniscus and assigned a 10 percent disability rating from December 1, 2001. Importantly, where, as here, service connection has been granted and the initial ratings and effective dates have been assigned, the claims for service connection have been more than substantiated and proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once a claim for service connection has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional § 5103(a) notice. See Dingess, 19 Vet. App. at 490-91; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Moreover, in a letter dated December 2006, the Veteran was provided with additional notice of the types of evidence that could substantiate his claims, such as medical records or lay statements regarding personal observations. He was asked to provide information as to where he had been treated and was informed that VA was responsible for obtaining any federal records, VA records, and any medical examinations, if necessary. He was also provided with notice of how disability ratings and effective dates are determined. Moreover, there is no timing problem as to this notice since, as indicated above, the Veteran's claims were readjudicated in the SSOCs dated in February 2008, August 2008, July 2010, and November 2012, following the issuance of the December 2006 letter. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Accordingly, the Board concludes that VA has met its duty to notify the Veteran with respect to the issues on appeal. With respect to VA's duty to assist, the Veteran's service treatment records (STRs), and VA and private treatment records have been obtained and associated with the claims file. The Veteran was also afforded pertinent VA examinations in September 2002, May 2003, December 2004, December 2006, August 2009, and May 2012. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examinations obtained here are sufficient, as the examiners considered all of the pertinent evidence of record, including the statements of the Veteran, and provided explanations for the opinions stated as well as the medical information necessary to apply the appropriate rating criteria. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2012). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome here, the Board finds that any such failure is harmless. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In sum, the facts relevant to this appeal have been properly developed, and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Thus, the Veteran will not be prejudiced by the Board's proceeding to adjudicate the merits of his increased initial rating claims. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. A determination is made as to the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the Veteran is assigned a 10 percent disability rating for his service-connected DJD of the right knee from December 1, 2001 and a 30 percent disability rating from August 13, 2009. He is also assigned a separate 10 percent disability rating for post-operative torn medial meniscus of the right knee. As will be explained below, the Board finds that the evidence does not support a finding that higher evaluations for this disability are warranted at any time during the appeal period. Additionally, when evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Here, the Veteran seeks an initial disability rating for his service-connected DJD of the right knee in excess of 10 percent from December 1, 2001 and in excess of 30 percent from August 13, 2009. His DJD of the right knee is currently rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5260 (leg, limitation of flexion) and 5261 (leg, limitation of extension). He is assigned a separate 10 percent rating for post-operative torn medial meniscus of the right knee under 38 C.F.R. § 4.71a, Diagnostic Code 5259 (cartilage, semilunar, removal of, symptomatic). Under the anti-pyramiding provision of 38 C.F.R. § 4.14, the evaluation of the "same disability" or the "same manifestation" under various diagnoses is to be avoided. The Court held, in Esteban v. Brown, 6 Vet. App. 259 (1994), that for purposes of determining whether a claimant is entitled to separate ratings for different problems or residuals of an injury, such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of, or overlapping with, the symptomatology of the other conditions. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." 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 diagnosis and demonstrated symptomatology. Any change in a 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, Diagnostic Code 7913. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). The principal manifestations of the Veteran's right knee disability are pain, limitation of motion, and subjective complaints of giving way. See, e.g., the May 2012 Board hearing transcript. Moreover, as will be discussed below, the x-ray evidence of record substantiates a diagnosis of DJD of the Veteran's right knee. Due to the x-ray evidence of DJD as well as the objective evidence of limitation of motion, the Veteran's DJD of the right knee is appropriately rated under Diagnostic Codes 5010-5260-5261. See 38 C.F.R. § 4.27 (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen). The Veteran is also assigned a separate 10 percent disability rating under Diagnostic Code 5259 (cartilage, semilunar, removal of, symptomatic) for his service-connected torn medial meniscus of the right knee. Under VA regulations, separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25 (2012); see also Esteban, 6 Vet. App. at 261. More specifically, VA General Counsel has concluded that a claimant who has arthritis and instability of a knee may be rated separately under Diagnostic Codes 5003 and 5257 and that evaluation of knee dysfunction under both codes would not amount to pyramiding under 38 C.F.R. § 4.14. See VAOPGCPREC 23-97 (July 1, 1997) and VAOPGCPREC 09-98 (August 14, 1998). Therefore, a veteran who has both arthritis and instability of the knee may be rated separately, provided that any separate rating must be based upon additional disability. See also Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997). The Board therefore finds that the Veteran may be assigned a separate disability rating for his service-connected right knee disability under Diagnostic Code 5257 (knee, other impairment of) based upon recurrent subluxation or lateral instability. With respect to the right knee, arthritis due to trauma, substantiated by x-ray findings, will be rated as degenerative arthritis. See 38 C.F.R. § 4.71a, Diagnostic Code 5010. Under Diagnostic Code 5003 (degenerative arthritis), arthritis of a major joint be rated under the criteria for limitation of motion of the affected joint. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. For the purpose of rating disabilities due to arthritis, the knee is considered a major joint. See 38 C.F.R. § 4.45 (2012). Degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Where, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). Under Diagnostic Code 5260, limitation of flexion of the leg provides a non-compensable rating if flexion is limited to 60 degrees, a 10 percent rating where flexion is limited to 45 degrees, a 20 percent rating where flexion is limited to 30 degrees, and a maximum 30 percent rating if flexion is limited to 15 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, limitation of extension of the leg provides a non-compensable rating if extension is limited to five degrees, a 10 percent rating if limited to 10 degrees, a 20 percent rating if limited to 15 degrees, a 30 percent rating if limited to 20 degrees, a 40 percent rating if limited to 30 degrees, and a 50 percent rating if limited to 45 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5261. Under Diagnostic Codes 5260 and 5261, a veteran may receive separate ratings for limitations in both flexion and extension. See VAOPGCPREC 9-2004. Here, the Veteran seeks an initial disability rating for his service-connected right knee disability in excess of 10 percent from December 1, 2001 and 30 percent from August 13, 2009. The Veteran was initially afforded a VA examination in September 2002 to address his right knee disability. At the time, the Veteran complained of continuous right knee pain. He stated that his right knee gives out sometimes. The Veteran indicated that he uses a transcutaneous electrical nerve stimulation (TENS) unit to treat his right knee symptomatology. He stated that standing for a prolonged period of more than thirty minutes flares up his right knee pain and he must rest in order to resolve the flare-up. The Veteran endorsed using a cane and stated that he was planning to get a knee brace. He stated that he had no episodes of dislocation or recurrent subluxation. Range of motion studies conducted during the Veteran's VA examination showed that his right knee flexion was 110 degrees with pain at 90 degrees. His extension was minus 10 degrees and the examiner noted the Veteran was unable to fully extend the knee. The examiner noted that on repeat range of motion testing, the Veteran's above-noted right knee flexion and extension measurements were maintained. The examiner additionally indicated that there was no objective evidence of lateral instability in the right knee. The examiner diagnosed the Veteran with DJD of the right knee, status-post torn right medial meniscus. The Veteran was afforded a second VA examination as to his right knee disability in May 2003 at which time he stated that he "still is having pain and weakness but he does not take any medication for the pain." He further indicated that his pain is constant but increases with standing more than ten minutes. The Veteran wore a right knee brace to the examination and walked with a cane. He did not endorse a history of dislocation or subluxation of the right knee and the examiner noted that "at present there is no sign of any acute inflammation." The examiner additionally observed that "[t]here is not any sign of abnormal fluid collection in the joint. On both sides the anterior and posterior crucial ligaments are intact. On both sides the medial and lateral collateral ligaments are intact. On both sides the McMurray's test is negative." Range of motion testing showed flexion of the right knee to 140 degrees and extension to zero degrees. The examiner explained that repeated motion testing did not "change much except the patient's complaints of pain on the right knee." In a letter dated July 2003, Dr. F.A.T. stated that the Veteran "has pain in the [right] knee and his knee will give out while walking or standing. States he has to wear a brace all the time, falls frequently. States he is unable to take four or five steps without trouble." Dr. F.A.T. stated that the Veteran exhibited normal range of motion. He also found the Veteran's right knee positive for a "little bit of crepitus." VA treatment records dated May 2004 indicated that the Veteran felt his right knee give way after standing up from his bed. He stated that his right knee pain had worsened following the fall. The Veteran was subsequently treated at the VA, at which time his treatment provider noted that the right knee examination was limited by the Veteran; however, "range of motion is probably full." The treatment provider also noted no tenderness, effusion, instability or pain with stress. He did document moderated atrophy of the quadriceps muscles. In a June 2004 VA treatment note, the Veteran's treating physician indicated that his currently diagnosed minimal DJD of the right knee "does not explain the severe pain and disability that he describes." In December 2004, the Veteran was afforded another VA examination to address his right knee disability. At that time, he reported pain in his right knee was 2 or 3 on a scale of 10. The examiner stated that the Veteran had no weakness, stiffness, swelling, heat, or redness in the right knee. He further noted that the Veteran's right knee is stable. The examiner noted no limitation of motion or function of the right knee, although the Veteran did come to the examination with a cane and right knee brace. The examiner stated that the Veteran had full range of motion from zero to 140 degrees. The examiner indicated that the Veteran had very mild right knee pain, which is about a 2/10 both during and after repetitions. X-rays performed contemporaneous with the examination showed mild DJD of the right knee. The examiner diagnosed the Veteran with right knee meniscus disease with no loss of motion or function. A fourth VA examination of the Veteran's right knee was conducted in December 2006. The examiner initially observed that the Veteran appeared for the examination wearing a right knee brace and using a cane; he also indicated that the Veteran used a wheelchair as occasion requires (prn). The examiner noted no history of fracture, dislocation, ligamental tears, etc... He further indicated that the Veteran "experiences chronic diffuse anterior right knee pain, more pronounced in right medial anterior joint compartment, dull and nagging in type and usually at level 4/10, aggravated with bending of the right knee." The Veteran stated that he was unable to kneel, squat, or climb due to pain. He also endorsed pain with repetitive use as well as with standing/ambulation in excess of 5 minutes. He indicated that he experiences stiffness of the right knee with occasional mild swelling without increased local heat or redness. The Veteran endorsed no weakness with occasional buckling or locking in the right knee. He stated that he has not experienced flare-ups of right knee symptomatology or periods of incapacitation. The Veteran did endorse lack of endurance and excess fatigability in the right knee. However, no episodes of dislocation or recurrent subluxation were indicated. The examiner further stated that there was "[n]o objective evidence of painful motion, edema, effusion, instability, weakness, redness, heat, abnormal movement, guarding of movement, etc..." No ankylosis was demonstrated upon examination. Range of motion testing revealed flexion of the right knee to 90 degrees with pain at 90 degrees and extension to zero degrees without pain. The examiner stated there was no change in range of motion with repetitions. The examiner additionally stated there was "[n]o additional limitation of motion by pain, weakness, fatigue, or lack of endurance following repetitive use." There was also no objective evidence of effusion or instability. The Veteran was again afforded a VA examination in August 2009 as to his right knee disability. He reported experiencing right knee pain at 6/10, which lasts for one to two days. He stated that recently in July 2009, his right knee gave way and he fell. He endorsed increased pain and swelling following the fall. The examiner noted that the Veteran continued to use a right knee brace and cane for ambulation, as well as, a wheelchair, as needed. The examiner indicated that there was no evidence of deformity, instability, incoordination, decreased speed, episodes of dislocation or subluxation, locking episodes, effusions, or symptoms of inflammation. As indicated, the Veteran endorsed giving way of the right knee as well as pain, stiffness, and weakness. The examiner noted the Veteran's report of flare-ups of moderate severity on a weekly basis lasting one to two days, which were precipitated by standing, walking, and kneeling. The examiner stated that there was evidence of crepitation, grinding, patellar abnormality, and effusion. However, there was no objective evidence of instability and the McMurray's test was negative. The examiner further noted a tender medial joint with moderate swelling bursa and pain on patella displacement. Range of motion testing demonstrated flexion to 100 degrees and extension to minus 20 degrees. No additional limitations were observed after three repetitions. However, the examiner estimated that the Veteran exhibited a loss of 20 degrees of right knee flexion due to pain. Additionally, the examiner opined that the Veteran's right knee disability "is considered severe in that a probable knee replacement will be needed. His daily living activities have worsened to [the] point of needing a wheelchair and cane. Since fall [in July 2009] the condition has worsened. Magnetic resonance imaging (MRI) pending September 2009." Pursuant to the April 2012 Board Remand, the Veteran was afforded another VA examination of his right knee in May 2012. The examiner initially observed that the Veteran has not seen an orthopedic physician in two to three years. The examiner noted the Veteran's continued use of a cane, brace, and wheelchair, as needed. The Veteran endorsed right knee pain at 5/10. He stated that he experiences stiffness. The examiner indicated there were no episodes of dislocation or subluxation. The Veteran reported incidents of instability, locking, and giving way of the right knee an average of once every two to three months. Occasional effusions were indicated as well as swelling and tenderness. The Veteran reported that he had flare-ups of right knee symptomatology every other month, which were precipitated by prolonged riding, sitting, or standing, and relieved by rest and medication. The Veteran reported that he "can't hardly walk on" his right knee. Range of motion testing showed flexion to 100 degrees and extension to 5 degrees with no objective evidence of painful motion. The Veteran was able to perform repetitive use testing with three repetitions without additional limitation of motion, functional loss, or impairment. He exhibited tenderness/pain on palpation of the right knee. The examiner reported that joint stability tests were normal and there was no objective evidence of subluxation or dislocation. The examiner reported that the Veteran's work accommodations include use of assistive devices for ambulation, frequent rest periods, prolonged standing or sitting without breaks and avoidance of at-risk activities likely to cause re-injury. Diagnostic Code 5260 contemplates a 10 percent evaluation where there is limitation of knee flexion to 45 degrees, which is far exceeded by the flexion measurements recorded in all six VA examination reports. A review of the record demonstrates that the RO awarded the increased 30 percent disability rating, effective August 13, 2009, based upon the report of increased right knee symptomatology reported by the August 2009 VA examiner. Crucially, as demonstrated by the objective evidence of record outlined above, there is no evidence which indicates that a greater limitation of flexion existed in the right knee prior to August 13, 2009 or after August 13, 2009. Accordingly, an increased disability rating cannot be assigned based on Diagnostic Code 5260. Diagnostic Code 5261 contemplates a noncompensable evaluation with a limitation of knee extension to 5 degrees. As detailed above, the six VA examination reports described above noted that the left knee extension to no worse than 5 degrees. Thus, a compensable disability rating cannot be assigned under Diagnostic Code 5261. In short, under Diagnostic Codes 5260 and 5261, respectively, the limitation of right knee movement exhibited by the Veteran is not so significantly impaired or limited as to indicate an increased evaluation under Diagnostic Codes 5260 or 5261, either prior to or following August 13, 2009. To this end, in DeLuca, supra, the Court held that VA's review of a service-connected musculoskeletal disability must include an assessment of the functional impairment caused by that disability. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012). Here, the competent medical evidence does not indicate that the Veteran's current symptomatology warrants the assignment of an additional disability rating. Specifically, the VA examiners repeatedly indicated that, although the Veteran experiences pain upon flexion and extension, he is able to achieve no less than 100 degrees of flexion and 5 degrees of extension. The Board recognizes that the August 2009 VA examiner estimated that the Veteran's right knee flexion was limited by an additional loss of 20 degrees of flexion due to pain (from 100 degrees to 80 degrees). Moreover, although the Veteran reported weakness, fatigue, and lack of endurance in his right knee, the examiners consistently stated that the objective evidence did not demonstrate changes in range of motion with repeat movements. See, e.g., the VA examination reports dated May 2012, August 2009, December 2006, December 2004, May 2003, and September 2002. Accordingly, the Board finds that additional disability rating, over and above the currently assigned disability ratings for the right knee, are not warranted under Diagnostic Codes 5010-5260-5261 at any time during the appeal period. As indicated above, the RO assigned the Veteran a separate 10 percent disability rating for post-operative torn medial meniscus of the right knee, which the Board will considered under Diagnostic Code 5259. See 38 C.F.R. §§ 4.14, 4.71a; cf. VAOPGCPREC 23-97 (July 1, 1997) and VAOPGCPREC 09-98 (August 14, 1998) (the Board assumes that the Veteran's complaints of his knee giving way is what qualifies as "symptomatic under Diagnostic Code 5259). Under Diagnostic Code 5257, a 10 percent disability is warranted when instability is slight, a 20 percent disability is warranted when instability of the knee is moderate, and a 30 percent disability is warranted when instability is severe. The Board observes that the Veteran has repeatedly endorsed weakness and giving way in the right knee, which has resulted in multiple falls throughout the appeal period. See, e.g., the VA examination reports dated May 2012, August 2009, December 2006, December 2004, May 2003, and September 2002; see also the May 2009 Board hearing transcript. Additionally, it is undisputed that he wears a right knee brace, uses a cane for ambulation, and occasionally relies upon a wheelchair. However, the May 2012, August 2009, December 2006, December 2004, May 2003, and September 2002 VA examiners consistently documented no evidence of lateral instability or recurrent subluxation in the Veteran's right knee upon physical examination. While the Board recognizes that the Veteran requires the use of a right knee brace and cane for ambulation, and experiences regular episodes of giving way, there is no objective medical evidence of knee instability or subluxation. However, as the Veteran is assigned a separate 10 percent disability rating under Diagnostic Code 5259, presumably for complaints of the knee giving way, the Board will not disturb the current evaluation. III. Extraschedular considerations The Board also finds that evidence does not show an exceptional or unusual disability picture as would render impractical the application of the regular schedular rating standards. See 38 C.F.R. § 3.321 (2012). In this regard, the Board does not dispute that the service-connected right knee disabilities have had an adverse effect on employability, but it bears emphasis that the schedular rating criteria are designed to take such factors into account. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] 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." 38 C.F.R. § 4.1 (2012). Here, the very problems reported by the Veteran are contemplated by the criteria discussed above. 38 C.F.R. §§ 4.10, 4.40. Thus, given the lack of evidence showing unusual disability not contemplated by the rating schedule, the Board concludes that a remand to the RO for referral of this issue to the VA Central Office for consideration of extraschedular evaluations is not warranted. IV. Rice Considerations A request for a total disability rating based on individual unemployability (TDIU) whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue of whether a TDIU is warranted as a result of that disability. Id. Review of the record demonstrates that entitlement to TDIU was recently granted effective August 13, 2009. See the May 2011 rating decision. Accordingly, any implicit claim of TDIU raised by the Veteran with respect to his right knee disabilities is rendered moot. ORDER Entitlement to an initial disability rating in excess of 10 percent from December 1, 2001 to August 13, 2009 for service-connected DJD of the right knee is denied. Entitlement to an initial disability rating in excess of 30 percent from August 13, 2009 for service-connected DJD of the right knee is denied. Entitlement to an initial disability rating in excess of 10 percent for service-connected post-operative right medial meniscus is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs