Citation Nr: 1320257 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 10-01 420 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUE Entitlement to a rating in excess of 10 percent for right knee chondromalacia. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Kristy l. Zadora, Counsel INTRODUCTION The Veteran had active duty service from February 1985 to January 1993. This appeal to the Board of Veterans' Appeals (Board) arose from September 2008 and December 2008 rating decisions in which the RO, inter alia, denied the Veteran's claims for increased ratings for right and left knee chondromalacia. In July 2009, Veteran filed a notice of disagreement (NOD) with the assigned disability rating for her right knee chrondromalaica only. A statement of the case (SOC) was issued in December 2009 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in January 2010. A review of the Virtual VA claims processing system does not reveal any additional documents pertinent to the claim on appeal. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. Prior to June 16, 2009, the Veteran's right knee chondromalacia resulted in reduced range of motion that included extension to no less than zero degrees and flexion to no less than 120 degrees and intermittent mild instability; but was not productive of locking; ankylosis, subluxation, impairment of the tibia or fibula, genu recurvatum, dislocation or removal or the semilunar cartilage,nor did the disability manifest X-ray evidence of arthritis. 3. Beginning on June 16, 2009, the Veteran's right knee chondromalacia (now with X-ray evidence of arthritis in one joint) has resulted in reduced range of motion including extension to no less than zero degrees and flexion to no less than 50 degrees due to pain, as well as intermittent mild instability; but has not been productive of locking, ankylosis, subluxation, impairment of the tibia or fibula, genu recurvatum, or dislocation or removal or the semilunar cartilage. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right knee chondromalacia, prior to June 16, 2009, 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, 5014, 5257 (2012). 2. Resolving all reasonable doubt in the Veteran's favor, the criteria for a separate, 10 percent rating for right knee arthritis, with limited motion due to pain, beginning on June 16, 2009, are 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, 4.14, 4.27, 4.40, 4.45, 4.71a, 4.124a, 5003, 5014, 5260, 5261 (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. 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 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 (here, the RO). 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. An August 2008 pre-rating letter provided pertinent notice to the Veteran in connection with her claim for an increased rating for knee disability. This letter indicated what information and evidence was needed to substantiate the 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 her with general information pertaining to VA's assignment of disability ratings and effective dates, as well as set forth the applicable criteria for rating knee impairment, consistent with 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 matter herein decided. Pertinent medical evidence associated with the claims file consists of the reports of the VA examinations, as well as the Veteran's VA treatment records. Also of record and considered in connection with the appeal are various written statements provided by the Veteran and by her representative, on her behalf. The Board finds that no further RO action on the claim, prior to appellate consideration, is required. In summary, the duties imposed by the VCAA have been considered and satisfied. Through notice of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which she might obtain such evidence, and the allocation of responsibilities between herself 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 the 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 matter 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). II. Higher Rating 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). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made . Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). The following analysis is therefore undertaken with the possibility that "staged rating"(assignment of different ratings may be warranted for distinct periods of time, based on the facts found) may be warranted. The Veteran contends that a higher rating is warranted for her right knee disability due to her limited flexion, instability and pain. She also contends that a separate rating is warranted due to her arthritis. Historically, the Veteran's right knee disability has been characterized as chondromalacia and the rating has been assigned under Diagnostic Codes 5099-5014, the diagnostic codes for unlisted knee disability and osteomalacia. In December 2008, the RO assigned the rating for the right knee disability under Diagnostic Codes 5014-5257, the diagnostic codes for osteomalacia and "other" knee impairment such as recurrent subluxation or lateral instability. 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 5257, a 10 percent rating is assigned for slight disability, a 20 percent rating is assigned for moderate disability, and a 30 percent rating is assigned for severe disability. 38 C.F.R. § 4.71a. The terms "slight," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Under Diagnostic Code 5014, osteomalacia is evaluated as degenerative arthritis, on the basis of limitation of motion of the affected part. 38 C.F.R. § 4.71a. 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 (here, Diagnostic Codes 5260 and 5261). 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. 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). 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. 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). A. Period Prior to June 16, 2009 Pertinent to this period, the relevant evidence in the record includes the Veteran's VA treatment records, as well as a report of VA examination conducted in September 2008. This evidence establishes that, on range of motion testing, the Veteran's right knee flexion was limited to 120 degrees and that extension was to zero degrees. In addition, no subluxation was found on objective examination and only intermittent mild instability was found. These findings are indicative of a level of impairment consistent with no more than the 10 percent rating assigned for this appeal period. The report of September 2008 VA orthopedic examination reflects the Veteran's complaints of pain, weakness, stiffness, swelling, heat, instability, giving way, "locking," fatigability and a lack of endurance. Flare-ups, which occurred between two and four times per month and lasted between two and four days, which were precipitated by driving, prolonged standing or walking were reported by the Veteran. Rest and medication alleviated these flare-ups and such flare-ups impaired daily activities by 30 percent. Episodes of dislocation or recurrent subluxation were denied. Flexion was found to be from zero degrees to 120 degrees with pain beginning at 100 degrees and extension was to zero degrees. Repetitive motion revealed pain but there was no further restriction in range of motion found. Varus lateral collateral ligaments, anterior cruciate ligaments and posterior cruciate ligaments were found to be normal, McMurray's test was negative and valgus of medial collateral ligaments were found to be "mild." An accompanying X-ray was normal. An October 2008 VA treatment note indicates that the Veteran had valgus alignment of the knees, small effusion in, diffuse tenderness over the medial and lateral joint lines and scant patellofemoral crepitus. Range of motion was noted to be full with some discomfort; specific range of motion measurements were not provided. An April 2009 VA treatment note reflects the Veteran's complaints of right knee pain and knee buckling. Marked valgus alignment of the knees with tenderness over the medial joint line bilaterally and over the lateral joint line were noted. Small effusion was also noted. Mild mediolateral instability was found and Murray's maneuver for the medial meniscus was very painful. Range of motion was noted to be full; specific range of motion measurements were not provided. A June 2009 VA treatment note indicated that a recent Magnetic Resonance Imaging (MRI) scan of the right knee showed no evidence of a meniscal tear. Considering the pertinent facts in light of the applicable rating criteria, the Board finds that, at no point prior to June 19, 2009, did the right knee disability warrant more than the 10 percent rating assigned. Despite the Veteran's complaints of knee instability and giving way, only mild instability was found on objective examination in September 2008 and April 2009. In addition, subluxation was not found on objective examination or during treatment and the Veteran has not alleged such symptoms. Therefore, the right knee disability would not warrant a higher rating under Diagnostic Code 5257. As regards limitation of motion under Diagnostic Codes 5260 and/or 5261, the evidence shows that the Veteran's service-connected right knee disability was manifested by extension to zero degrees and flexion to 120 degrees. Such findings do not support the minimum, compensable rating under either diagnostic code. In addition, the September 2008 X-ray found the Veteran's right knee to be normal, and a compensable rating under Diagnostic Code 5003-for one joint-is therefore not assignable. As noted, 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 her September 2008 VA examination, the Veteran reported right 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 knee motion demonstrated by the Veteran at her VA examination, the overall level of disability demonstrated by the Veteran is not commensurate to a loss of flexion to 45 degrees or less or a loss of extension to 10 degrees or less, even after taking reported pain into consideration. Moreover, to the extent that pain was reported by the Veteran after repetitive motion testing at her 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, for the period under consideration, a compensable disability rating cannot be granted for the right 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 the knee, or any suggestion that the Veteran effectively experiences ankylosis of the knee. The Board also finds that no other diagnostic code provides a basis for any higher or alternative rating for the right knee prior to June 16, 2009 . There are no objective medical findings of, and the Veteran has not alleged, ankylosis, locking, impairment of the tibia or fibula, genu recurvatum or arthritis. In the absence of such findings, evaluating either of the Veteran's knees under Diagnostic Codes 5003, 5256, 5262, or 5263 is not warranted. See 38 C.F.R. 4.71a. Moreover, the disability was not shown to involve any other factor(s) that would warrant evaluation of the disability under any other provision(s) of the rating schedule for this period. B. Period Beginning on June 19, 2011 Pertinent to this period, the relevant evidence in the record includes the Veteran's VA treatment records, as well as a report of VA examination conducted in August 2011. This evidence establishes that, on range of motion testing, the Veteran's right knee flexion was limited to 50 degrees and that extension was to zero degrees, and that a right knee X-ray revealed degenerative or traumatic arthritis. Neither instability nor subluxation were found on objective examination. These findings are indicative of a level of impairment consistent with no more than the 10 percent rating assigned for chondromalacia (now, for instability), but support a separate 10 percent rating for arthritis with demonstrated, albeit, noncompensable limitation of motion. A June 16, 2009 VA knee X-ray revealed mild bilateral tri-compartmental osteoarthritis. In a November 2010 VA treatment note, the Veteran's right knee range of motion was noted to be from zero degrees to 110 degrees. Her knee was found to be stable to Lachman and varus and valgus stressing. Pain with patellar grind, patellar crepitus and some apprehension on the lateral pressure of her patella, but no medial joint line tenderness, were noted. A February 2011 VA treatment note reflects the Veteran's reports that she had fallen while ascending the stairs and that she had a three-week history of a small mass located on her right kneecap. Full range of motion without knee effusion was noted; specific range of motion measurements were not provided. A small pea-sized mass was noted to be located to the anteromedial patella close to the insertion of the quadriceps tendon and an impression of a right knee inclusion cyst. A March 2011 VA treatment note reflects the Veteran's reports of small, subcutaneous masses anterior to the right patellar tendon and patella that did not affect her knee function. A May 2011 VA treatment note reflects the Veteran's complaints of fairly significant knee pain, particularly when using the stairs. Physical examination revealed probable effusion and tenderness along the medial and lateral joint lines as well as the patella. Right knee range of motion was noted to be full and pain-free; specific range of motion measurements were not provided. There was no swelling or erythema and no outward sign of the presence of these masses found. The report of an August 2011 VA orthopedic examination indicates that right knee flexion was to 60 degrees with pain beginning at 35 degrees and extension as to zero degrees without objective evidence of painful motion. On repetitive motion testing, flexion was to 50 degrees and extension to zero degrees. The examiner determined that there was no meniscal condition present and a history of recurrent patellar subluxation/dislocation was denied by the Veteran. Anterior instability, posterior instability and multi-lateral instability were found to be normal. An accompanying X-ray was noted to show degenerative or traumatic arthritis. Considering the evidence in light of the above criteria, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the record does present a basis for assignment of two separate 10 percent ratings--i.e., the current rating under Diagnostic Code 5257, for other impairment based upon slight instability, and a separate rating under Diagnostic Code 5003 for arthritis with limited, albeit nonompensable, motion, since June 16, 2009-the date an X-ray revealed right knee arthritis. Collectively, the evidence--to include the Veteran's own assertions-establishes that the right knee disability has been manifested by pain and buckling, as well as limited and painful motion. Specifically, during an October 2011 VA examination, flexion was noted to be limited to 50 degrees, with objective evidence of painful motion, on repetitive motion testing. Although the Veteran's representative has argued that the Veteran's flexion was limited to 35 degrees and therefore warrants a higher rating, this finding, alone, is not indicative of full disability picture revealed on range of motion testing. Indeed, the October 2011 VA examiner indicted that the Veteran's flexion was to 60 degrees with pain beginning at 35 degrees, and that her flexion was limited to 50 degrees after repetitive motion testing. Notably, pain alone does not equate with functional loss under 38 C.F.R. §§ 4.40 and 4.45 but may cause functional loss if affecting some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). This argument is therefore without merit and a compensable rating based upon limitation of flexion under Diagnostic Code 5260 is not warranted. The Board notes, however, that the VA General Counsel has held that a claimant who has arthritis (resulting in limited or painful motion) and instability of a knee may be rated separately under Diagnostic Codes 5003 and 5257, cautioning that any such separate rating must be based on additional disabling symptomatology. See VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). Evaluation of the same manifestations under different diagnoses, or "pyramiding", is precluded by 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). Separate ratings may be granted only when "none of the symptomatology for any one of [the claimed conditions] is duplicative of or overlapping with the symptomatology of the other ... conditions." Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Board finds that the assignment of separate, compensable ratings for the right knee under Diagnostic Codes 5003 (for arthritis with noncompensable, but painful, motion (here, consistent with the Veteran's complaints, even if not consistently shown objectively) and 5257 (for knee impairment with slight instability) would not constitute impermissible pyramiding as the symptomology is not duplicative or overlapping. In this regard, the Board points out that, although the RO did not consider whether a separate rating was warranted for right knee arthritis with noncompensably limited motion, in light of the decision herein, in which the Board grants a separate, 10 percent rating for such arthritis, the Veteran is not prejudiced by the Board's consideration of a separate rating. Bernard v. Brown, 4 Vet. App. 384 (1993). The Board also finds that no other diagnostic code provides a basis for any higher rating for the right knee. There been any medical findings of ankylosis, locking, impairment of the tibia or fibula, genu recurvatum, or dislocation or removal of the semilunar cartilage. In the absence of such findings, evaluating the Veteran's knee under Diagnostic Codes 5256, 5258, 5259, 5262, or 5263 is not appropriate. See 38 C.F.R. 4.71a. Moreover, the disability is not shown to involve any other factor(s) that would warrant evaluation of the disability under any other provision(s) of the rating schedule. C. Other Considerations In evaluating the right knee, the Board has considered the Veteran's assertions regarding her symptoms, which she 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). Clearly, the Board has considered complaints in reaching the above determinations. Generally, however, the criteria needed to support higher ratings require medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). In this regard, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of ratings higher, or any earlier, than those determined herein for the right knee. Additionally, the Board finds that at no pertinent point have the right knee impairments 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 right knee impairments 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 right knee. 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 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). Here, however, the Veteran reported current employment as a driver in connection with the October 2011 VA examination, 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 the higher rating claim on appeal is not warranted. For all the foregoing reasons, the Board finds that, there is no basis for further staged rating for the right knee disability, pursuant to Hart, and that any ratings higher, or earlier, than those herein indicated must be denied. The Board has favorably applied the benefit-of-the-doubt doctrine in determining that a separate 10, percent rating for arthritis, from June 19, 2009 is warranted, but otherwise finds that the preponderance of the evidence is against assignment of any higher, earlier, or additional rating. 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). ORDER A rating in excess of 10 percent for right knee chondromalacia is denied. A separate, 10 percent rating for right knee arthritis, with limited flexion due to pain, is granted, effective June 19, 2009, subject to the pertinent legal authority governing the payment of monetary benefits. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs