Citation Nr: 1323206	
Decision Date: 07/19/13    Archive Date: 07/24/13

DOCKET NO.  08-27 577	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas

THE ISSUES

1.  Entitlement to a rating higher than 10 percent for residuals of left knee injury with degenerative joint disease based on instability before March 30, 2009. 

2.  Entitlement to a rating higher than 10 percent for residuals of left knee injury with degenerative joint disease based on limitation of motion. 

3.  Entitlement to a separate rating for residuals of left knee injury with degenerative joint disease based involvement of the menisci.

REPRESENTATION

Veteran represented by: Disabled American Veterans 

WITNESS AT HEARING ON APPEAL
Veteran

ATTORNEY FOR THE BOARD

L. J. Wells-Green, Counsel



INTRODUCTION

The Veteran, who is the appellant, served on active duty from June 1982 to May 1986 in the United States Air Force and from June 1987 to August 1987 in the United States Army.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in January 2008 of a Department of Veterans Affairs (VA) Regional Office (RO).

In August 2011, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the Veteran's file.

In September 2011, the Veteran submitted additional evidence without waiving the right to have the evidence initially considered by the RO.  As the evidence consists of historical records dated before the current claim for increase was filed in August 2007, the records do not have a bearing on the current rating of the left knee and the records need not be referred to the RO for initial consideration. 38 C.F.R. § 20.1304(c). 

In a decision in October 2011, the Board denied the claim for increase for residuals of a left knee injury based on instability before March 30, 2009, and based on limitation of motion.  The Board granted a 30 percent rating based on instability from March 30, 2009.  

The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court).  In an Order in October 2012, pursuant to a Joint Motion, the Court vacated that part of the Board's decision denying the claim for increase for residuals of a left knee injury based on instability before March 30, 2009, and based on limitation of motion.  The Court did not disturb that part of the Board's decision, grant a 30 percent rating based on instability from March 30, 2009.  


FINDINGS OF FACT

1.  Before March 30, 2009, the residuals of a left knee injury with degenerative joint disease demonstrated only slight instability.

2.  Flexion of the left knee is to 70 degrees with pain and with additional functional limitation due to pain, fatigue, and lack of endurance on repetitive motion; there is no limitation of extension.

3.  Before March 30, 2009, the residuals of a left knee injury with degenerative joint disease based involvement of the menisci were either without dislocation with frequent locking and effusion into the joint or asymptomatic.

4.  From March 30, 2009, the residuals of a left knee injury with degenerative joint disease based involvement of the menisci were without dislocation with frequent locking and effusion into the joint, but were symptomatic.


CONCLUSIONS OF LAW

1.  Before March 30, 2009, the criteria for a rating higher than 10 percent for residuals of left knee injury with degenerative joint disease based on instability were not met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2012).

2.  The criteria for a rating higher than 10 percent for residuals of left knee injury with degenerative joint disease based on limitation of motion have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260, 5261 (2012).





3.  Before March 30, 2009, the criteria for a separate compensable rating for residuals of left knee injury with degenerative joint disease based on involvement of the menisci were not met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259 (2012).

4.  From March 30, 2009, the criteria for a separate 10 percent rating for residuals of left knee injury with degenerative joint disease based on involvement of the menisci have been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259 (2012). 

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 

Duty to Notify

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. 

Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). 




In a claim for increase, the VCAA notice requirements are the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting Veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). 

The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). 

The RO provided pre-adjudication VCAA notice by letter, dated in September 2007.  The notice included the type of evidence needed to substantiate a claim for increase, namely, evidence that the symptoms had increased and the effect on employment.  The Veteran was notified that VA would obtain VA records and records from other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any non-Federal records on his behalf. The notice included the provisions for the effective date of a claim and for the degree of disability assignable.

As for the content and the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374   (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (pre-adjudication VCAA notice); of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim); and of Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (generic claim-specific notice).  Further VCAA notice is not required.

Duty to Assist

Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service treatment records, VA records, and private medical records. The Veteran was afforded VA examinations in October 2007, in March 2009, and in March 2013. 

As the examinations are based on medical history and physical examination, which describe the disability in sufficient factual detail, which can be applied to the legal criteria for rating the disability, the examinations are adequate.  See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 2007) (an examination is adequate when it is based on consideration of the 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). 

As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Rating Principles

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.



VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions.  Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991).

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7.

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007).

The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14.  The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition.  Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

Rating Criteria 

Rating factors for a disability of the musculoskeletal system included functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakened movement, excess fatigability, swelling and pain on movement.  38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). 

The left knee is currently rated 10 percent under Diagnostic Code 5257 for instability before March 30, 2009, and 10 percent under Diagnostic Code 5260 for limitation of flexion.


Under Diagnostic Code 5257 for instability, the criteria for 10 percent rating are either slight recurrent subluxation or slight lateral instability. Moderate recurrent subluxation or moderate lateral instability is rated 20 percent.  

Limitation of motion of the knee is rated under either Diagnostic Code 5260 (limitation of flexion) or Diagnostic Code 5261 (limitation of extension).  A separate rating may be assigned for each, that is, for limitation of flexion and for limitation of extension.

Under Diagnostic Code 5260, flexion limited to 60 degrees is zero percent disabling, flexion limited to 45 degrees is 10 percent disabling, flexion limited to 30 degrees is 20 percent disabling, and flexion limited to 15 degrees is 30 percent disabling.

Under Diagnostic Code 5261, extension limited to 5 degrees is zero percent disabling, extension limited to 10 degrees is 10 percent disabling, extension limited to 15 degrees is 20 percent disabling, and extension limited to 20 degrees is 30 percent disabling.

Normal range of motion of the knee motion is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II.

Other potentially applicable Diagnostic Codes are Diagnostic Codes 5258 and 5259. 

Under Diagnostic Code 5258, the criteria for a 20 percent rating are dislocation of a semilunar cartilage or meniscus with frequent episodes of locking, pain, and effusion into the joint.  There is no lesser or higher rating. 

Under Diagnostic Code 5259, the criterion for a 10 percent rating is symptomatic removal of a semilunar cartilage or meniscus.  There is no higher rating.  




Facts

While in the United States Air Force, the Veteran suffered a tear of the left lateral meniscus and underwent a partial left lateral meniscectomy. In February 1992, the Veteran underwent a debridement of the left knee for chondromalacia and removal of a tag from the residual of the left lateral meniscus. 

In a rating decision in July 1992, the RO granted service connection for the residuals of the left knee injury with degenerative joint disease and assigned a 10 percent rating based on instability.  

In December 2006, the Veteran underwent a third operation on the left knee, which resulted in excising of the left lateral meniscus and repair of a small tear in the left medial meniscus. 

In May 2007, the physician who performed the knee surgeries stated that the Veteran had reached the maximum level of medical improvement and that the Veteran had mildly limited flexion and full extension, but no measurement in degrees of limitation of flexion was provided. The physician stated that the Veteran had discomfort with flexion.  There was no intra-articular effusion, but there was laxity.  X-rays showed an almost complete ablation of the medial joint space with almost bone-to-bone contact at the lateral aspect of the femoral condoyle and the tibial plateau.  The physician compared the Veteran's disability level to the American Medial Association Guidelines for permanent impairment and concluded that the total impairment was 35 percent. 

On VA examination in October 2007, the Veteran complained of constant pain, which increased with prolonged standing, 10 to 15 minutes, walking greater than half a block, and climbing stairs.  The Veteran complained of swelling every other day, although there was no sign of swelling on examination. 




The Veteran described knee instability, namely, buckling or giving out once a week. The Veteran stated that the disability interfered with his civilian occupation as a mailman and that over the last year he has missed worked two to three times. 

On examination, left knee flexion was to 135 degrees and extension was to minus 5 degrees with pain beginning one degree before the end point for each. There was 1+ crepitus.  The Veteran had a mild varus deformity, mild quadriceps muscle atrophy, and mild lateral instability. The VA examiner estimated that on an acute episode of pain flexion was to 70 degrees and extension to -3 degrees and with fatigability flexion was reduced to 105 degrees and extension to - 4. The major functional impact was chronic pain as the most prominent feature, but also involved a lack of endurance and chronic fatigue. The Veteran had an abnormal gait.  X-rays showed arthritis.  A MRI showed moderate degeneration of the medial meniscus and joint effusion and a marked narrowing of the lateral joint compartment which demonstrated the thinning of the lateral cartilage and bone-on-bone contact of the left lateral joint.

In a rating decision in January 2008, the RO assigned a separate 10 percent rating for limitation of flexion under Diagnostic Code 5260. 

In December 2008, VA records show that the Veteran complained left knee pain.  There was left lateral meniscal compression discomfort and mild laxity of the lateral collateral ligament.  There was full range of left knee motion.  

On VA examination in March 30, 2009, the Veteran stated his knee had progressively worsened.  He complained of instability, pain, stiffness, weakness, incoordination, and decreased joint motion, but not dislocation or subluxation.  He stated that his knee locked and that there was effusion, swelling, and severe flare-ups. 





The symptoms are precipitated by long walks and prolonged standing.  The Veteran estimated he could walk a quarter of a mile and he able to stand 15 to 30 minutes. He stated that he always used a knee brace and that over the prior year he has lost three weeks of work.

On examination, the Veteran had poor propulsion and crepitus.  The cruciate ligaments were stable and the medial and lateral collateral ligaments were stable. The meniscus was surgically absent, which resulted in locking and effusion.  The McMurray test was positive. Flexion was to 100 degrees and extension was to - 5, but after three repetitions, flexion was to 80 degrees and extension remained the same.  The diagnosis was severe degenerative joint disease and moderate to severe laxity.  The examiner stated that the disability had no significant effect on the Veteran's occupation. 

VA records show that in November 2009, X-rays were negative for dislocation.  In August 2010, the Veteran complained of increased left knee pain.  The pertinent findings were crepitus without laxity and full range of motion.  

In August 2011, the Veteran testified that he worked for the United States Post Office as a letter carrier and although he was able to complete a normal work day, he could not do overtime and that at the end of a full day of work, he had knee pain and that the disability prevented some family and recreational activities, such as riding a motorcycle and hiking. He stated that his knee locked frequently and that he had to manipulate the knee to free it so that he could flex the knee, which caused extreme pain.

In September 2011, VA records showed left knee patellar clicking and full range of motion and no laxity.  

On VA examination in March 2013, the Veteran complained of constant left knee pain such that he had to stop working overtime as a postal carrier.  



The Veteran stated he had daily flare-ups and swelling after work.  He stated that he had frequent episodes of "locking."  

On examination, left knee flexion was to 140 degrees and extension to 0 degrees with no objective evidence of painful motion.  Muscle strength was 5 of 5 during flexion and extension.  On repetitive testing, left knee flexion was to 140 degrees and extension was to 0 degrees.  There was no other functional loss.  There was no evidence of ligament instability or recurrent patellar subluxation or dislocation.  X-ray studies showed degenerative changes, but were otherwise normal.  

While the VA examiner noted the Veteran's history of a left knee meniscal tear, as well as his complaints of frequent joint pain, crepitus, and joint "locking," the VA examiner stated that such symptoms could not be replicated during the physical examination with different knee maneuvers.  The VA examiner stated that she had observed the Veteran walking for about the length of a football field, including walking up a flight of stairs, without any problems with gait, pain or locking.  The VA examiner found the left knee to be normal without loss of range of motion.  There was no evidence of any joint instability or crepitus and no evidence of dislocation of the patella or other part of the knee.  The Veteran's gait and balance were normal.  The VA examiner stated that the normal findings were contrary to the Veteran's subjective complaints.  

The VA examiner also noted that the Veteran admitted that he had no restrictions as a mail carrier because of the knee and that the Veteran only took medication about twice a week.  The VA examiner stated that in light of the normal physical examination along with X-ray evidence of minimal degenerative changes and the Veteran's working full-time as a mail carrier without any restrictions or limitations, the left knee function was within normal ranges and stable.   





Analysis

Rating Instability before March 30, 2009

Before March 30, 2009, as for instability, in May 2007, a private physician reported laxity, but not the degree of laxity.  On VA examination in October 2007, the Veteran described knee instability, namely, buckling or giving way once a week.
The pertinent finding was mild lateral instability.  In December 2008, there was mild laxity of the lateral collateral ligament. 

Despite the Veteran's complaints of instability, the record is consistent in finding mild instability, which does not more nearly approximate or equate to moderate instability, the criteria for the next higher rating under Diagnostic Code 5257 before March 30, 2009.

Before March 30, 2009, the preponderance of the evidence is against the claim for a rating higher than 10 percent for residuals of a left knee injury based on instability, and the benefit-of-the-doubt standard does not apply.  38 U.S.C.A. § 5107(b).  

Rating Limitation of Flexion  

In May 2007, a private physician stated that the Veteran had mildly limited flexion, but no measurement in degrees was provided.  On VA examination in October 2007, flexion was to 135 degrees with pain beginning one degree before the end point.  With an episode of acute pain flexion was estimated to be 70 degrees and with fatigability flexion was estimated to be 105 degrees.  In December 2008, there was full range of motion.  On VA examination in March 2009, flexion was to 100 degrees.  After three repetitions, flexion was to 80 degrees.   In September 2011, there was full range of motion.  On VA examination in March 2013, flexion was to 140 degrees, including on repetitive testing.  





Limitation of flexion is currently rated 10 percent under Diagnostic Code 5260.  Over the course of the appeal, flexion ranged from 70 degrees with flare-ups to full or 140 degrees of flexion.  Flexion in the range of 70 degrees to 140 degrees does not more nearly approximate or equate to flexion limited to 30 degrees, the criterion for the next higher rating for limitation of flexion under Diagnostic Code 5260, considering functional loss due to pain, weakness, excess fatigability, swelling, deformity, atrophy, or painful movement, under 38 C.F.R. §§ 4.40, 4.45, and repetitive motion.

A Separate Rating for Limitation of Extension

There is no current, separate rating for limitation of extension.  In May 2007, a private physician reported that the Veteran had full extension.  On VA examination in October 2007, extension was to -5 degrees and to -3 degrees with pain and to -4 degrees with fatigue.  In December 2008, there was full range of motion.  On VA examination in March 2009, extension was to -5 and there was severe laxity.  
In August 2010 and in September 2011, there was full range of motion.  On VA examination in March 2013, extension was to 0 degrees with no objective evidence of painful motion, including on repetitive testing.  

Over the course of the appeal, to the extent that -5 degrees represents a loss of 5 degrees of full extension, extension ranging from -5 degrees to full extension does not more nearly approximate or equate to extension limited to 10 degrees, the criterion for a compensable rating for limitation of extension under Diagnostic Code 5261, considering functional loss due to pain, weakness, excess fatigability, swelling, deformity, atrophy, or painful movement, under 38 C.F.R. §§ 4.40 , 4.45, and repetitive motion.

To the extent that -5 degrees represents more movement than normal due to ligament laxity, laxity or instability is already separately rated under Diagnostic Code 5257 and to rate laxity again as limitation of extension under Diagnostic Code 5261 would be pyramiding, which is not permissible. 38 C.F.R. § 4.14. 


A Separate Rating for involvement of a Semilunar Cartilage or Meniscus 

Other potentially applicable Diagnostic Codes are Diagnostic Codes 5258 and 5259. 

Under Diagnostic Code 5258, the criteria for a 20 percent rating are dislocation of a semilunar cartilage or meniscus with frequent episodes of locking, pain, and effusion into the joint.  There is no lesser or higher rating.  As the criteria are conjunctive, all of the conditions listed must be met for the rating.  See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" means that all of the conditions listed in the provision must be met).  

Under Diagnostic Code 5259, the criterion for a 10 percent rating is symptomatic removal of a semilunar cartilage or meniscus.  There is no higher rating.  

The Veteran had a left lateral meniscectomy and a repair of a tear in the left medial meniscus. 

A Rating before March 30, 2009 

In May 2007, the physician who performed the knee surgeries reported that there was no intra-articular effusion, but there was laxity.  On VA examination in October 2007, the Veteran complained of swelling every other day, although there was no sign of swelling or effusion on examination.  

In the absence of the evidence of a dislocated cartilage with frequent episodes of locking and pain and effusion into the joint, the criteria for a separate rating under Diagnostic Code 5258 had not been. 







Also the Veteran's complaints of pain, discomfort with flexion, buckling or giving out, that is, laxity or instability, were already separately rated under Diagnostic Code 5257 (instability) and under Diagnostic Code 5260 (flexion) and to rate the same symptoms under Diagnostic 5259 as removal of a semilunar cartilage or meniscus would be pyramiding, which is not permissible. 38 C.F.R. § 4.14.  While the Veteran complained of effusion, effusion was not found by either the private physician or on VA examination.  To this extent, the Board places greater weight on the objective findings than the Veteran's subjective complaints of swelling. 

In the absence of objective evidence of a symptomatic removal of a semilunar cartilage or meniscus, other than pain, limitation of motion, or instability, the criterion for a separate rating under Diagnostic Code 5259 had not been. 

A Rating from March 30, 2009 

On VA examination in March 30, 2009, the VA examiner stated that the meniscus was surgically absent, resulting in locking and effusion.  In November 2009, X-rays were negative for dislocation.  On VA examination in March 2013, the Veteran 
stated he had daily flare-ups and swelling after work.  He stated that he had frequent episodes of "locking."  While the VA examiner noted the Veteran's history of a left knee meniscal tear, as well as his complaints of frequent joint pain, crepitus, and joint "locking," the VA examiner stated that such symptoms could not be replicated during the physical examination with different knee maneuvers.  The VA examiner stated that she had observed the Veteran walking for about the length of a football field, including walking up a flight of stairs, without any problems with gait, pain or locking.  The VA examiner found the left knee to be normal without loss of range of motion.  There was no evidence of any joint instability or crepitus and no evidence of dislocation of the patella or other part of the knee.  The Veteran's gait and balance were normal.  The VA examiner stated that the normal findings were contrary to the Veteran's subjective complaints.  




While there is evidence of locking and effusion, in the absence of the evidence of a dislocated cartilage with frequent episodes of locking and pain and effusion into the joint, the criteria for a separate rating under Diagnostic Code 5258 have not been. 

While there is no evidence of a dislocated cartilage and pain is already a factor in rating the knee under Diagnostic Code 5260 (flexion), the VA examiner in March 2009, stated that the meniscus was surgically absent, resulting in locking and effusion.  Episodes of locking and effusion are not encompassed in either Diagnostic Code 5257 (instability) or Diagnostic Code 5260 (limitation of flexion) and episodes of locking and effusion equate to a symptomatic removal of a semilunar cartilage or meniscus, warranting a 10 percent rating, which is the maximum rating under Diagnostic Code 5259. 

Extraschedular Consideration

Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1)  in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for a rating.

The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria.

If the criteria reasonably describe the disability level and symptomatology, then the disability picture is encompassed by the Rating Schedule, and the assigned schedular ratings are, therefore, adequate and referral for an extraschedular rating is not required.  Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).





Here, the rating criteria under Diagnostic Codes 5257, 5259, and 5260 reasonably describe the disability levels and the left knee symptomatology, including functional loss, limitation of motion, instability, and residuals of a meniscectomy.  In other words, the Veteran does not experience any symptomatology not already encompassed in the Rating Schedule.  Therefore referral for extraschedular consideration for the service-connected residuals of a left knee injury is not required under 38 C.F.R. § 3.321(b)(1). 

Total Disability Rating for Compensation based on Individual Unemployability

The Veteran has maintained full-time employment during the pendency of the appeal.  The Veteran does not assert and the evidence of record does not reasonably raise a claim for a total disability rating.  See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for a total disability rating based on individual unemployability, whether expressly raised by the veteran or reasonably raised by the record, is not a separate claim for benefits).


ORDER

1.  Before March 30, 2009, a rating higher than 10 percent for residuals of left knee injury with degenerative joint disease based on instability is denied. 

2.  A rating higher than 10 percent for residuals of left knee injury with degenerative joint disease based on limitation of motion is denied.

	(The Order continues on the next page.).







3.  Before March 30, 2009, a separate compensable rating for residuals of left knee injury with degenerative joint disease based on involvement of the menisci is denied.

4. From March 30, 2009, a separate 10 percent rating for residuals of left knee injury with degenerative joint disease based on involvement of the menisci is granted. 



____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs