Citation Nr: 1308341 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 10-03 482 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for chondromalacia of the right knee with degenerative joint disease. 2. Entitlement to an initial rating in excess of 10 percent a left knee strain with degenerative joint disease. 3. Entitlement to an initial rating in excess of 10 percent for a right foot strain with degenerative changes. ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from December 1972 to March 1977. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2009 rating decision in which the RO, inter alia, awarded service connection for chondromalacia of the right knee with degenerative joint disease, a left knee strain with degenerative joint disease and a right foot strain with degenerative changes, and assigned an initial, 10 percent rating for each disability, effective March 11, 2009. The Veteran timely perfected an appeal as to each assigned rating. As the Veteran disagreed with the initial ratings assigned following the award of service connection for each disability, the Board has characterized these claims in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). In December 2011, the Board remanded the claims on appeal to the RO, via the Appeals Management Center (AMC) in Washington, D.C, for further action, to include additional development of the evidence. After completing the requested development, to the extent possible, the RO continued to deny each claim (as reflected in an August 2012 supplemental statement of the case (SSOC), and returned these matters for further appellate consideration. A review of the Virtual VA claims processing system reveals VA treatment records dated through January 2012; the August 2012 SSOC notes review of the Veteran's claims file. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim on appeal have been accomplished. 2. Since the March 11, 2009 effective date of the award of service connection, the Veteran's chondromalacia of the right knee with degenerative joint disease (with X-ray evidence of arthritis in one joint or joint group) has resulted in reduced range of motion that included extension to no less than zero degrees and flexion to no less than 135 degrees but has not been productive of locking; ankylosis; subluxation or instability; impairment of the tibia or fibula; genu recurvatum; or dislocation or removal or the semilunar cartilage. 3. Since the March 11, 2009 effective date of the award of service connection, the Veteran's strain of the left knee with degenerative joint disease (with X-ray evidence of arthritis in one joint or joint group) has resulted in reduced range of motion that included extension to no less than zero degrees and flexion to no less than 125 degrees but has not been productive of locking; ankylosis; subluxation or instability; impairment of the tibia or fibula; genu recurvatum; or dislocation or removal or the semilunar cartilage. 4. Since the March 11, 2009 effective date of the award of service connection, the Veteran's right foot strain with degenerative changes (with X-ray evidence of arthritis in one joint or joint group) has resulted in pain on manipulation of the foot, an Achilles alignment with valgus deviation of five degrees on weight-bearing, pronation of five degrees and hammertoes on the second and third toes but has not been productive of accentuated pain on manipulation and use; an indication of swelling on use; or characteristic callosities. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for chondromalacia of the right knee with degenerative joint disease are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.27, 4.40, 4.45, 4.71a, 4.124a, 5003, 5010, 5019, 5260, 5261 (2012). 2. The criteria for an initial rating in excess of 10 percent for left knee with degenerative joint disease are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.27, 4.40, 4.45, 4.71a, 4.124a, 5003, 5010, 5019, 5260, 5261 (2012). 3. The criteria for an initial rating in excess of 10 percent for a right foot strain with degenerative changes are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.27, 4.40, 4.45, 4.71a, 4.124a, 5276, 5282, 5284 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations 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 (West 2002 & Supp. 2012) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 - 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. 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/Hartman 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. VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. A March 2009 pre-rating letter provided pertinent notice to the Veteran in connection with what were then claims for service connection for a bilateral knee condition and a right foot condition. That letter indicated what information and evidence was needed to substantiate each claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence would be obtained by VA. The letter also provided him with general information pertaining to VA's assignment of disability ratings and effective dates in accordance with Dingess/Hartman. After the award of service connection for right and left knee disabilities and a right foot disability, and the Veteran's disagreement with the initial rating assigned, a July 2009 letter set forth applicable criteria for higher ratings for foot disability and arthritis (the timing and form of which suffices for Dingess/Hartman). The December 2009 statement of the case (SOC) likewise set forth applicable criteria for higher ratings for knee disability. Although no notice letter specific to the claims for higher rating for the knee disabilities has been provided, on these facts, the absence of such notice is not shown to prejudice the Veteran. As indicated, he has been furnished with notice of the applicable rating criteria, and afforded opportunity to respond. As explained below, there is no indication that there is any outstanding evidence pertinent to the claims. Also, pertinent notice consistent with Pelegrini and certain requirements of Dingess/Hartman has been provided. Moreover, because both claims for higher rating are being denied, no higher the claim for higher rating is being, or is to be, assigned; hence, there can be no prejudice to the Veteran under the notice requirements of Dingess/Hartman. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided. Pertinent medical evidence associated with the claims file consists of the report of the VA examination, as well as the Veteran's VA treatment records (requested by the Board in its December 2011 remand). See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Also of record and considered in connection with the appeal are various written statements provided by the Veteran . The Board also finds that no additional RO action to further develop the record in connection with any claim on appeal, prior to appellate consideration, is required. In the December 2011 remand, the Board instructed that the Veteran be afforded VA orthopedic examinations to obtain information as to the severity of his bilateral knee disabilities and right foot disability. The Board advised the Veteran that, under 38 C.F.R. § 3.655, if he failed to report for examination without good cause, the claims on appeal might be denied. The record reflects that, pursuant to the remand, a VA examination was scheduled in January 2012, but the Veteran did not report for the examination. In an August 2012 SSOC, the AMC advised the Veteran that he had failed to report for a scheduled VA examination and that no request to reschedule the examination had been received. The Veteran then submitted a request for expedited processing in September 2012, which suggests that he received the August 2012 SSOC, as this document had been an attachment to the SSOC. There is no indication that the Veteran has requested that this examination be rescheduled nor has he offered an explanation for his failure to appear. As such, no further RO action in this regard is warranted. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate these claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with any claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). III. Higher Ratings Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of 'staged rating' (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson, 12 Vet. App. at 126. Each following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. At the outset, the Board notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; 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). Traumatic arthritis is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved. If the limitation of motion is noncompensable, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. A. Knee Disabilities The Veteran contends that higher ratings are warranted for his right and left knee disabilities due to painful movement and the effect of his treating medications; the specific effect of this medication has not been detailed. Historically, the Veteran's right knee disability has been characterized as chondromalacia with degenerative joint disease and the initial rating has been assigned under the diagnostic codes for traumatic arthritis and bursitis. His left knee disability has been characterized as a left knee strain with degenerative joint disease and the initial rating has also been assigned under the diagnostic codes for traumatic arthritis and bursitis. 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. 38 C.F.R. § 4.27. Under Diagnostic Code 5019, bursitis is evaluated as degenerative arthritis, on the basis of limitation of motion of the affected part. 38 C.F.R. § 4.71a. Standard range of knee motion is from zero degrees (on extension) to 140 degrees (on flexion). See 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5260, a 10 percent is warranted where flexion was limited to 45 degrees. A rating of 20 percent is warranted where flexion was limited to 30 degrees and a rating of 30 percent is warranted were flexion was limited to 15 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, a 10 percent rating is warranted where extension was limited to 10 degrees and a 20 percent rating is warranted where extension was limited to 15 degrees. A rating of 30 percent is warranted where extension was limited to 20 degrees while a 40 percent rating is warranted where extension was limited to 30 degrees. A 50 percent is warranted where extension was limited to 45 degrees. 38 C.F.R. § 4.71a. The VA General Counsel has held that separate ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. See VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). The relevant evidence in the record includes the Veteran's VA treatment records, as well as a report of VA examinations conducted in June 2009. This evidence establishes that, on range of motion testing, the Veteran's right knee flexion was limited to 135 degrees, that his left knee flexion was limited to 125 degrees and that extension was to zero degrees bilaterally. These findings are indicative of a level of impairment consistent with no more than each 10 percent rating assigned.. The report of a June 2009 VA orthopedic examination reflects the Veteran reports of knee pain and stiffness as well as mild flare-ups that occurred two to three times per month and lasted one to two days each time. He reported that such flare-ups limited his flexion. Deformities, giving way, instability, weakness, episodes of dislocation/subluxation, locking, effusion or inflammation were denied. On June 2009 VA examination, tenderness was found at the medial aspect, bilaterally. Examination was negative for deformities, redness, edema, effusion, heat, crepitus, instability, weakness and ankylosis. Instability was not found on examination while valgus/varus stress, McMurray's, Lachman's and Drawer's tests were negative. Left flexion was from zero degrees to 125 degrees and extension was to zero degrees, both with objective evidence of pain. Right flexion was from zero degrees to 135 degrees and extension was to zero degrees, both with objective evidence of pain. Repetitive motion revealed pain but there was no restriction in range of motion found. Accompanying X-rays revealed degenerative changes bilaterally. A September 2009 VA treatment note documents the Veteran complaints that his left knee "went out of joint" with extension. On physical examination, the left knee was noted to be stable with intact range of motion, moderate crepitus and no point tenderness. As discussed above, as the Veteran failed to appear for a VA examination scheduled in January 2012, these claims will be rated based on the evidence of record. See 38 C.F.R. § 3.655(b). As regards to limitation of motion under Diagnostic Codes 5260 and/or 5261, the evidence shows that the Veteran's service-connected right knee disability has been manifested by extension to zero degrees and flexion to 135 degrees and his service-connected left knee disability has been manifested by extension to zero degrees and flexion to 125 degrees. While these findings do not support even the minimum, compensable rating under either diagnostic code, as noted below, given the Veteran's complaints of pain and painful motion, a 10 percent rating for compensably limited but painful motion under Diagnostic Code 5003-for one joint-is appropriate. However, no higher rating is assignable. VA may consider any demonstrated functional loss attributable to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, in conjunction with criteria under the rating formula. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-7; Johnson, 9 Vet. App. 7. In this regard, the Board recognizes that during his June 2009 VA examination, the Veteran reported bilateral knee pain and objective evidence of pain was found on range of motion testing but without additional limitation of motion. Nonetheless, given the extent of right and left knee motion demonstrated by the Veteran at his VA examination, the overall level of disability demonstrated by the Veteran is not commensurate to a loss of flexion to 30 degrees or less or a loss of extension to 15 degrees or less, even after taking reported pain into consideration. Moreover, to the extent that pain was reported by the Veteran after repetitive motion at his VA examination, the VA examiner noted that the Veteran did not demonstrate any further loss of motion or function due to such symptoms. In view of the foregoing, even after taking the factors identified in DeLuca into consideration, the Board finds that a disability rating in excess of 10 percent cannot be granted for either knee on the basis of limited motion. Moreover, the post-service radiological studies, treatment notes and the VA examination report simply do not reflect objective findings of ankylosis in either knee, or any suggestion that the Veteran effectively experiences ankylosis of either knee. The Board also finds that no other diagnostic code provides a basis for any higher rating for either knee. While separate ratings may be assignable for limited motion and instability (see VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997) and VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998)), the Veteran has not endorsed symptoms of instability and giving way in the right knee and there are no objective findings of instability or subluxation of either knee. Nor have there been any medical findings of locking, impairment of the tibia or fibula, genu recurvatum, or dislocation or removal of the semilunar cartilage. In the absence of such findings, evaluating either of the Veteran's knees under Diagnostic Codes 5256, 5257, 5258, 5259, 5262, or 5263 is not appropriate. See 38 C.F.R. 4.71a. Moreover, neither disability is shown to involve any other factor(s) that would warrant evaluation of the disability under any other provision(s) of the rating schedule. B. Right Foot Disability The Veteran contends that a higher rating is warranted for his right foot disability due to painful movement and the effect of his treating medications; the nature of such effects were not detailed by the Veteran. Historically, the Veteran's right foot disability was characterized a strain with degenerative changes and the initial rating was assigned under the diagnostic codes for hammertoes and acquired flatfoot. 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. 38 C.F.R. § 4.27. Under Diagnostic Code 5282, a 10 percent rating is warranted for unilateral hammertoes of all toes without a claw foot. This is the highest rating available under this diagnostic code. 38 C.F.R. § 4.71a. Under Diagnostic Code 5276, for a unilateral disability, a 10 percent rating is assigned for moderate symptoms of pes planus, to include weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis, and pain on manipulation and use of the feet. A 20 percent rating is assigned for severe pes planus and requires objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, an indication of swelling on use, and characteristic callosities. A 30 percent rating is assigned for pronounced pes planus and requires marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, and the disability is not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a. The criteria in Diagnostic Code 5276 are conjunctive. See Melson v. Derwinski, 1 Vet. App. 334 (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. 9 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). See also Tatum v. Shinseki, 23 Vet. App. 152 (2009) (holding that 38 C.F.R. § 4.7 is not applicable when the ratings criteria are successive and not variable). The report of a June 2009 VA examination reflects the Veteran complaints of pain at the ball of his foot and that he was able to stand for only 10 minutes. Swelling, heat, redness, stiffness, fatigability, weakness, lack of endurance, flare-ups and pes planus were denied. Physical examination revealed mild tenderness at the ball of the foot, which was more apparent at the first metatarsal head area, and mild hammertoes of the right second and third toes. Achilles alignment was normal on non-weight bearing and there was a valgus deviation of five degrees, which was correctable with manipulation, on weight bearing. Pronation of five degrees was found and there no arch was present on non-weight bearing or weight bearing. Examination was negative for painful motion, swelling, instability, weakness, hallux valgus, calluses, skin breakdown, pes cavus or midfoot malalignment. An accompanying right foot X-ray revealed pes planus with hammertoes and degenerative changes of the first metatarsal head. As noted, the medical evidence shows tenderness on manipulation, an Achilles alignment with valgus deviation of five degrees on weight-bearing, pronation of five degrees and hammertoes on the second and third toes. Such findings are consistent with the 10 percent rating currently assigned for under Diagnostic Code 5276. A higher rating for right foot is not warranted under that diagnostic code as there is no objective evidence of accentuated pain on manipulation and use, an indication of swelling on use or characteristic callosities. The Board also finds that no other diagnostic code provides a basis for any higher rating. There were no medical findings of pes cavus or malunion or nonunion of the tarsal or metatarsal bones which would warrant evaluation of the disability under Diagnostic Code 5278 or Diagnostic 5283. Moreover, while, the disability could, conceivably, be rated as a residual of a foot injury under Diagnostic Code 5284, here, the demonstrated level of disability of the right foot is consistent with an overall moderate foot disability for which a 10 percent rating is assigned; hence, a higher rating under that diagnostic code is not warranted. There also is no suggestion of any loss of use of the foot, so as to warrant a maximum, 40 percent rating for foot disability). See 38 C.F.R. § 4.71a. C. Other Considerations In assessing the severity of each disability under consideration, the Board has considered the Veteran's assertions regarding his symptoms, which he is certainly competent to provide. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, the criteria needed to support higher ratings as the required medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of a higher rating for either disability pursuant to any applicable criteria at any point pertinent to this appeal. Additionally, the Board finds that at no pertinent point has any disability under consideration been shown to be so exceptional or unusual as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (cited in the December 2009 SOC). The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disabilities at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, supra. In this case, the Board finds that the applicable schedular criteria are adequate to rate each disability under consideration at all points pertinent to this appeal. The rating schedule fully contemplates the described symptomatology, and provides for ratings higher than that assigned based on more significant functional impairment. Significantly, there is no medical indication or argument that the applicable criteria are otherwise inadequate to rate the disability. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Finally, the Board notes the Veteran's reported during a June 2009 VA examination that he had stopped working as a truck driver in October 2008 following his wife's death as his knee conditions prevented him from driving alone. The Board notes that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which a higher rating is sought, then part and parcel to that claim for a higher rating is the matter of whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. See Rice v. Shinseki, 22 Vet. App. 447 (2009). However, an October 2009 VA treatment note reflects the Veteran's report that he was working as a truck driver, and the record includes nothing to indicate that Veteran is not still employed. As there is no suggestion of actual or effective unemployment, consideration of a TDIU in connection with any higher rating claim on appeal is not warranted. For all the foregoing reasons, the Board finds that, there is no basis for staged rating for the Veteran's right knee, left knee, or right foot, pursuant to Fenderson, as applicable, and that each claim for higher rating must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of any higher rating for any disability on appeal, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). (CONTINUED ON NEXT PAGE0 ORDER An initial rating in excess of 10 percent for chondromalacia of the right knee with degenerative joint disease is denied. An initial rating in excess of 10 percent a left knee strain with degenerative joint disease is denied. An initial rating in excess of 10 percent for a right foot strain with degenerative changes is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs