Citation Nr: 1309684 Decision Date: 03/22/13 Archive Date: 04/01/13 DOCKET NO. 09-20 881 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an evaluation in excess of 20 percent for service-connected degenerative arthritis of the right knee with residual scar. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from June 1958 to May 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Board notes that the RO construed a February 2008 statement from the appellant as an increased rating claim. However, in the statement, the appellant expressed disagreement with the January 2008 rating decision and it was received within one year of the decision. Thus, the Board construes the February 2008 statement as a notice of disagreement with the January 2008 rating decision. In his substantive appeal, the appellant requested a Board hearing. However, in June 2009, the appellant withdrew the request for a hearing. Therefore, the Board may proceed to adjudicate this appeal. FINDING OF FACT The appellant's right knee did not exhibit flexion limited to 15 degrees, extension limited to 20 degrees, instability, or a painful scar during the period on appeal. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for service-connected degenerative arthritis of the right knee with residual scar have not been met during the period on appeal. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5010, 5260, 5261 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the appellant's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). More specific notice is required in claims for increased compensation. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). VA has met all statutory and regulatory notice and duty to assist provisions as to the appellant's increased rating claim. Appropriate notice was provided in a September 2007 letter, prior to the initial adjudication of the appellant's claim. Mayfield, 444 F.3d at 1333; See Prickett v. Nicholson, 20 Vet. App. 370 (2006). VA's duty to assist has been satisfied. The appellant's VA medical records are in the file. The appellant has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the appellant. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the appellant's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). The RO provided the Veteran appropriate VA examinations in October 2007 and November 2012. The examinations are adequate because they are based on a thorough examination, a description of the Veteran's pertinent medical history and appropriate diagnostic tests, to include x-ray. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). The appellant has not reported receiving any recent treatment specifically for this condition and there are no records suggesting an increase in disability has occurred as compared to the prior VA examination findings. There is no objective evidence indicating that there has been a material change in the severity of the appellant's service-connected disorder since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. The VA examination reports are thorough and supported by VA treatment records and provided findings pertinent to the rating criteria. The examination in this case is adequate upon which to base a decision. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). II. Legal Criteria Disability evaluations are determined by comparing a veteran's present symptomatology with the criteria set forth in the Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. 4.1 (2012). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the appellant. 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Nevertheless, where, as here, the appellant is appealing the rating for an already established service-connected condition, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The appellant's right knee disability is currently evaluated under Diagnostic Codes 5010-5260. Diagnostic Code 5010 provides that traumatic arthritis, due to trauma and substantiated by x-ray findings, is to be evaluated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, 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 for each such major joint or group of minor joints affected by the limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is assigned when there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is assigned when there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. 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. For the purpose of rating disability from arthritis, the knee is considered a major joint. 38 C.F.R. § 4.45 (2012). Under diagnostic code 5260, flexion limited to 60 degrees warrants a noncompensable rating; flexion limited to 45 degrees warrants a 10 percent rating; flexion limited to 30 degrees warrants a 20 percent rating; and flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Extension limited to 5 degrees warrants a noncompensable rating, to 10 degrees warrants a 10 percent rating, to 15 degrees warrants a 20 percent rating, to 20 degrees warrants a 30 percent rating, to 30 degrees warrants a 40 percent rating, and to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261. A knee disability can also be rated under Diagnostic Code 5257 for recurrent subluxation or lateral instability. Slight recurrent subluxation or lateral instability warrants a 10 percent evaluation; moderate recurrent subluxation or lateral instability warrants a 20 percent evaluation; and severe recurrent subluxation or lateral instability warrants a 30 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The words "slight," "moderate" and "severe" as used in various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are 'equitable and just.' 38 C.F.R. § 4.6 (2012). Instability of the knee and limitation of motion of the knee are two separate disabilities. As such, it is permissible to award separate ratings under both a range of motion code and an instability code, without violating the prohibition on pyramiding under 38 C.F.R. § 4.14. See VAOPGCPREC 23-97. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45, see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. The appellant's claim for an increased rating was received on January 30, 2007 As such, the rating period on appeal is from January 30, 2006. 38 C.F.R. § 3.400(o)(2) (2012). III. Analysis The appellant contends that he is entitled to a rating in excess of 20 percent for service-connected impairment to the right knee to include degenerative arthritis, right knee with residual scar. For the reasons discussed below, the Board finds that a higher rating is not warranted. A May 2007 VA treatment record reflects that the appellant had knee pain and was instructed to continue Vicodin and Trazodone. On examination, his extremities had no deformities and full range of motion to resistance. There was no edema. The appellant's gait was undisturbed. The appellant's right knee was evaluated at a VA fee-basis examination in October 2007. The appellant reported that he had weakness when the knee gave way, stiffness in the mornings, constant swelling, heat when the weather is hot, redness occasionally, giving way after prolonged standing or working, lack of endurance (cannot stand for long periods of time), locking when stepping incorrectly and fatigability. He did not have dislocation. He reported that he had constant pain at a level 10 out of 10. The appellant reported that he was unable to stand for prolonged periods of time, work outside, drive longer than 30 minutes, sleep on one side or bend down on his knee. On physical examination, the appellant's gait was abnormal. It was a slight limp favoring the left leg. Examination of the feet did not reveal any signs of abnormal weight bearing. He did not require an assistive device for ambulation. On the right knee there was edema and guarding of movement. There was no effusion, weakness, tenderness, redness, heat or subluxation. Range of motion testing demonstrated right knee flexion of 125 degrees and extension of 5 degrees. The degree at which pain occurred was 120 degrees on flexion and 10 degrees on extension. The examiner noted that on the right, the joint function was additionally limited by the following after repetitive use: pain, fatigue, and lack of endurance had the major functional impact. The joint function on the right knee was not additionally limited by weakness or incoordination. The additional limitation did not limit the joint function by any degrees. The medial and lateral meniscus test of the right knee was within normal limits. The anterior and posterior cruciate ligaments stability test of the right knee was within normal limits. Right knee X-rays showed degenerative arthritic changes, and calcification of quadriceps tendinous attachment to patella. The examiner diagnosed the appellant with degenerative arthritis of the right knee joints. The effect of the condition on the appellant's daily activity was that the appellant should avoid kneeling, bending, stooping, climbing and prolonged standing and walking. The report reflects that the appellant had a scar at the right medial knee measuring about 13 cm by 1.5 cm with hyperpigmentation of less than six square inches. There was no tenderness, disfigurement, ulceration, adherence, instability, tissue loss, inflammation, edema, keloid formation, hypopigmentation or abnormal texture. In a February 2008 statement, which the Board has construed as a notice of disagreement, the appellant stated that he wore a soft knee brace for weeks at a time. He stated that he did have knee tenderness, weakness, disfigurement, instability, and at times inflammation and redness. He stated that the VA examination was done on a day when all those things were not present because he was heavily medicated. The appellant reported that he was on increased pain medication which prevented him from being employed. In a June 2008 statement, the appellant stated that when he woke up in the morning, his knee was stiff and sore and occasionally very swollen. He stated that he had to take Codeine to get relief. He stated that he had also purchased a brace and wore it for support. The appellant also stated that sometimes, because of the soreness and medication, it was necessary to pay someone to assist him (take him to the store, to work, do light house-work and cooking). He stated that on occasion, he could not function well enough to go to work. An October 2008 VA treatment record noted that the appellant's gait was undisturbed. The extremities had no deformities and a full range of motion to resistance. There was no edema. The assessment was knee pain- continue Codeine and Trazodone. Another October 2008 VA treatment record indicated the appellant reported having chronic right knee pain for 15 years. A March 2009 VA treatment record notes that the appellant had been diagnosed with derangement of the right knee. He reported that he now had pain to the entire right leg. He took Codeine for pain. In his substantive appeal, the appellant stated that he suffered with pain in his knee all the time that worsened with prolonged activity. He stated that he had to take frequent breaks when doing things, if not he tripped or had to keep himself from falling (going up or down steps or the curb). A November 2012 VA examination report reflects that the appellant reported flare-ups in the right knee which caused difficulty with prolonged walking, climbing and an inability to kneel. On range of motion testing, the appellant had right knee flexion of 120 degrees with objective evidence of painful motion at 120 degrees. The right knee had extension of 5 degrees. Objective evidence of painful motion began at extension of 5 degrees. The appellant was able to perform repetitive use testing with 3 repetitions. The right knee had post-test range of motion of 120 degrees flexion and 5 degrees extension. The appellant did not have additional limitation of range of motion of the knee following repetitive-use testing. The appellant had less movement than normal in the right knee and pain on movement in the right knee. He also had tenderness or pain to palpation for joint line or soft tissues of the right knee. The appellant did not have "shin splints." The appellant had a meniscal condition with frequent episodes of joint "locking," joint pain, and joint effusion. The appellant had not had a meniscectomy. The appellant had a scar associated with the right knee disability that was not painful or greater than 39 square cm. The appellant did not use an assistive device. The examiner noted that the appellant's knee did not impact his ability to work. The November 2012 VA examination report indicates that appellant had a post-surgical scar on his right knee. The scar was not painful or unstable. The scar was superficial and non-linear measuring 10 x 0.5 cm. The scar did not result in limitation of function or impact his ability to work. The Board finds that the evidence of record does not support the assignment of a rating in excess of 20 percent for the appellant's right knee under Diagnostic Code 5260 at any time during the appellate period. The evidence does not demonstrate that the appellant's right knee has limited flexion which would warrant a higher rating under Diagnostic Code 5260. The May 2007 VA treatment record indicated the appellant's extremity had a full range of motion with resistance. The October 2007 VA fee-basis examination reflects that the appellant had right knee flexion of 125 degrees with pain occurring at 120 degrees flexion. The October 2008 VA treatment record indicated the appellant's extremities had a full range of motion to resistance. The November 2012 VA examination report reflects that the right knee had flexion of 120 degrees with objective evidence of painful motion at 120 degrees, including on repetitive-use testing. Thus, the evidence of record does not reflect that the appellant had flexion limited to a compensable degree. Flexion was not limited to even 60 degrees, which would warrant a noncompensable rating under Diagnostic Code 5261. Consequently, the appellant is not entitled to a higher evaluation under Diagnostic Code 5260 for his right knee disability. The evidence also does not reflect that the appellant has extension of the knee limited to 20 degrees, which would warrant a 30 percent rating under Diagnostic Code 5261. The May 2007 VA treatment record indicated the appellant's extremities had full range of motion to resistance. The October 2007 VA fee-basis examination report reflects that the appellant had right knee extension limited to 5 degrees. Pain occurred at 10 degrees extension. The October 2008 VA treatment record indicated the appellant's extremities had full range of motion to resistance. The November 2012 VA examination report indicates the appellant had extension limited to 5 degrees, including following repetitive-use testing. The objective evidence of record therefore indicates that the appellant had extension limited to no more than 10 degrees during the period on appeal, with consideration of extension limited due to pain in the October 2007 VA fee-basis examination. As noted above, extension limited to 10 degrees warrants a 10 percent evaluation under Diagnostic Code 5261. Consequently, the appellant is not entitled to a higher evaluation under Diagnostic Code 5261. 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 and 4.59; Deluca v. Brown, 8 Vet. App. 202 (1995). As discussed above, the objective evidence of record does not indicate that the appellant's right knee had flexion or extension warranting a higher evaluation, even following repetitive testing. The October 2007 VA fee-basis examination report reflects that joint function was additional limited by pain, fatigue, lack of endurance and pain following repetitive use, but the additional limitation did not limit the joint function by any degrees. The Board has already considered the degrees of flexion and extension with pain, at 120 and 10 degrees respectively, as noted in the October 2007 examination report. The November 2012 VA examination report indicates that the appellant did not have additional limitation of the range of motion of the knee following repetitive-use testing. The Board has considered the appellant's statements regarding pain in his right knee. The appellant is competent to report symptoms such as pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board also finds his statements to be credible as they are generally consistent throughout the period on appeal. However, even if the Board conceded that the appellant's pain equated to an additional limitation of flexion and/or extension of several degrees, he would still need a significant loss of motion to warrant higher evaluations under either Diagnostic Code 5260 or 5261. The clinical evaluation has not shown such a loss of motion to be present in this case. The appellant's functional loss due to pain has already been considered in the 20 percent evaluation under Diagnostic Code 5010-5260. The appellant's range of motion tests consistently show that he has the ability to move his knee to a much greater degree than would warrant a higher rating under Diagnostic Code 5260 or 5261, even with consideration of pain. The November 2012 VA examiner found that the appellant's knee did not impact his ability to work. Although the appellant reported wearing a soft knee brace in the February 2008 and June 2008 statements, the October 2007 VA fee-basis examination report noted that examination of the foot did not reveal any signs of abnormal weight bearing. He did not require an assistive device for ambulation. The November 2012 VA examination report indicates that the appellant did not wear an assistive device. The Board finds that the appellant's symptoms of pain, fatigue, and lack of endurance, noted at the October 2007 VA fee-basis examination report are already contemplated in the 20 percent rating. Thus, even with consideration of the appellant's pain and DeLuca factors, the Board finds that the appellant's right knee symptomatology does not warrant an evaluation in excess of 20 percent under Diagnostic Codes 5260 and 5261. The appellant is not currently evaluated under Diagnostic Code 5257 for recurrent subluxation or lateral instability of the right knee. As noted above, instability of the knee and limitation of motion of the knee are two separate disabilities. As such, it is permissible to award separate ratings under both a range of motion code and an instability code. See VAOPGCPREC 23-97. Slight recurrent subluxation or lateral instability warrants a 10 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The evidence does not reflect that the appellant has had instability in his right knee during the period on appeal. The appellant reported that his knee gave way at the October 2007 VA fee-basis examination. However, no instability was noted on examination. The medial and lateral meniscus test and anterior and posterior cruciate ligaments stability test were within normal limits. In the February 2008 statement, the appellant stated that he had instability in his knee. However, the November 2012 VA examination report reflects that the right knee joint stability tests were normal, including tests for anterior instability, posterior instability, and medial-lateral instability. There was no evidence or history of recurrent patellar subluxation or dislocation. Although the appellant is competent to report symptoms capable of lay observation, such as instability of the knee, the Board finds his statements in regard to knee instability to less than credible as they are inconsistent with the objective evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, the Board finds that a preponderance of the evidence of record is against a finding that the appellant's right knee had recurrent subluxation or lateral instability warranting a separate evaluation under Diagnostic Code 5257. The Board has considered whether the appellant is entitled to a higher evaluation under other Diagnostic Codes. As the evidence is against a finding that the appellant has ankylosis of the right knee, Diagnostic Code 5256 is not applicable. There is no evidence of dislocated cartilage with frequent episode of "locking," pain and effusion into the joint. Thus, Diagnostic Code 5258 is not applicable. As the appellant did not have malunion of the tibia and fibula, a higher evaluation is not warranted under Diagnostic Code 5262. There is no evidence of genu recurvatum, acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated. Thus, an evaluation is not warranted under Diagnostic Code 5263. The Board has also considered whether the appellant should be entitled to a separate rating for a scar of the right knee, but finds he is not. The October 2007 VA fee-basis examination report reflects that the appellant had a scar at the right medial knee measuring about 13 cm by 1.5 cm with hyperpigmentation of less than six square inches. There was no tenderness, disfigurement, ulceration, adherence, instability, tissue loss, inflammation, edema, keloid formation, hypopigmentation or abnormal texture. The November 2012 VA examination report noted that the appellant had a scar associated with the right knee disability that was not painful or greater than 39 square cm. Another November 2012 VA examination report indicated that the scar was not painful or unstable. The scar was superficial and non-linear measuring 10 x 0.5 cm. The scar did not result in limitation of function or impact his ability to work. Thus, the Board finds that the evidence is against a finding that the appellant has a scar which is painful and/or unstable, or a total area of 39 square cm (6 square inches) in size which would warrant a separate rating. The Board has considered whether extraschedular consideration is warranted based on the evidence of functional, including occupational, impairment secondary to the right knee disability. See Barringer v. Peake, 22 Vet. App. 242 (2008). The discussion above reflects that the symptoms of the appellant's right knee disability are contemplated by the applicable rating criteria. The competent medical evidence of record shows that the right knee disability is primarily manifested by limitation of motion due to pain. Many of the applicable diagnostic codes used to rate the appellant's disability provide for ratings based on limitation of motion, and the effects of pain and functional impairment have been taken into account and are considered in applying the relevant criteria in the rating schedule. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. The effects of the appellant's disability have been fully considered and are contemplated in the rating schedule. Consideration of whether the appellant's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service- connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, in the February 2008 notice of disagreement, the appellant stated that his increased pain medication was preventing him from being employed. In a June 2008 statement, the appellant stated that "on occasion I can't function well enough to go to work." The November 2012 VA examiner found the appellant's right knee did not impact his ability work. Although the appellant indicated that the right knee may interfere with his ability to work on occasion, he did not indicate that he was unemployable as a result of his right knee disability. Accordingly, the Board concludes that a claim for TDIU has not been raised by the record. In conclusion, the Board finds that the preponderance of the evidence is against the appellant's claim. Consequently, the benefit-of-the-doubt rule is not applicable, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Accordingly, the Board finds that an evaluation in excess of 20 percent for the appellant's right knee disability is not warranted. ORDER Entitlement to an evaluation in excess of 20 percent for service-connected degenerative arthritis of the right knee with residual scar is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs