Citation Nr: 1324693 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 06-13 201 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to a rating in excess of 10 percent for right knee instability prior to December 21, 2006. 2. Entitlement to a rating in excess of 10 percent for degenerative changes of the right knee prior to December 21, 2006. ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran had active military service from January 1976 to March 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Board remanded this case in August 2008, February 2011, and November 2012 for additional development. A review of the record reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Most recently, the VA Appeals Management Center (AMC) continued the previous denials in an April 2013 supplemental statement of the case (SSOC). Of note, the record demonstrates that the Veteran underwent a total knee arthroplasty on December 21, 2006. In the February 2011 decision, the Board granted a 100% evaluation for the service-connected arthropathy of the right knee until December 21, 2007. The Board also granted a 30 percent disability rating for the service-connected right knee from December 21, 2007. Accordingly, the Board will not herein consider the propriety of the Veteran's disability rating for the service-connected right knee disability since December 21, 2006. During the course of the claim, the Veteran described an inability to retain employment due to his service-connected right knee disabilities prior to December 21, 2006. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a total disability rating claim based on individual unemployability (TDIU) is part of an increased rating claim when raised by the record. Thus, the question of TDIU will be addressed as part of the claims for higher ratings. Rice, supra; see also VAOGCPREC 06-96, 61 Fed. Reg. 66749 (1996). FINDINGS OF FACT 1. Prior to December 21, 2006, the Veteran's service-connected right knee disability was manifested by x-ray evidence of degenerative joint disease (DJD) and pain with noncompensable limitation of motion. 2. Prior to December 21, 2006, the right knee disability was manifested by subjective complaints of instability, but with no objective medical evidence of lateral instability or recurrent subluxation. CONCLUSIONS OF LAW 1. The criteria for an increased disability rating in excess of 10 percent prior to December 21, 2006 for the Veteran's service-connected DJD of the right knee are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & West Supp. 2013); 38 C.F.R. §§ 4.71, 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261 (2012). 2. The criteria for an increased disability rating in excess of 10 percent prior to December 21, 2006 for instability of the right knee disability are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & West Supp. 2013); 38 C.F.R. §§ 4.71, 4.71a, Diagnostic Code 5257 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.129(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that claimant is expected to provide. Further, in Dingess v. Nicholson, 19 Vet. Ap. 473 (2006), the Court held that, upon receipt of an application for a service connection claim, VA is required to review the evidence presented with the claim and to provide the claimant with notice of what evidence not previously provided will help substantiate his/her claim. See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Specifically, VA must notify the claimant of what is required to establish service connection and that a disability rating and effective date for the award of benefits will be assigned if service connection is awarded. With regard to the increased disability rating claim, the law requires VA to notify the claimant that, to substantiate a claim, the claimant was must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing his or her entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular veteran's circumstances; that is, VA need not notify a veteran of the specific diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). As to the current appeal, letters dated in August 2004, November 2004, March 2005, May 2005, August 2005, April 2006, and November 2008 collectively complied with VA's duty to notify the Veteran with regard to these increased rating claims. In particular, the letters informed the Veteran of the need for evidence of a worsening of his disabilities. He was notified of the types of evidence that could substantiate his claims, such as medical records or lay statements regarding personal observations. He was asked to provide information as to where he had been treated and was informed that VA was responsible for obtaining any federal records, VA records, and any medical examinations, if necessary. In addition, the letters informed the Veteran that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. He was also specifically provided with notice of how disability ratings and effective dates are determined in the April 2006 and November 2008 letters. With respect to VA's duty to assist, the Veteran's service treatment records (STRs), Social Security Administration (SSA) records, and VA and private treatment records have been obtained and associated with the claims file. The Veteran was also afforded pertinent VA examinations in August 2005 and September 2005. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examinations obtained here are sufficient, as they considered all of the pertinent evidence of record, including the statements of the Veteran, and provided explanations for the opinions stated as well as the medical information necessary to apply the appropriate rating criteria. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2012). II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the Veteran has been assigned a 10 percent disability rating for DJD of the right knee prior to December 21, 2006 as well as a separate 10 percent disability rating for the service-connected right knee based upon instability prior to December 21, 2006. As will be detailed below, the Board finds that the current separate 10 percent disability ratings for DJD of the right knee and instability of the right knee are appropriate for the period prior to December 21, 2006. Accordingly, the Board finds that staged ratings are not warranted for the claim period as to either disability. Additionally, when evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The Veteran's DJD of the right knee was rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5010 (arthritis, due to trauma), 5260 (leg, limitation of flexion), and 5261 (leg, limitation of extension). He is assigned a separate 10 percent rating for the right knee disability based upon instability under 38 C.F.R. § 4.71a, DC 5257 (knee, other impairment of). Under the anti-pyramiding provision of 38 C.F.R. § 4.14, the evaluation of the "same disability" or the "same manifestation" under various diagnoses is to be avoided. The Court held, in Esteban v. Brown, 6 Vet. App. 259 (1994), that for purposes of determining whether a claimant is entitled to separate ratings for different problems or residuals of an injury, such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of, or overlapping with, the symptomatology of the other conditions. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In this case, the Board has considered whether another rating code is "more appropriate" than the one used by the RO. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). The principal manifestations of the Veteran's right knee disability during the period in question were pain, limitation of motion, and subjective complaints of giving way. See, e.g., the VA examination report dated August 2005. Moreover, the x-ray evidence of record substantiated a diagnosis of DJD of the Veteran's right knee. See the VA examination report dated September 2005. Due to the x-ray evidence of DJD as well as the objective evidence of limitation of motion, the Veteran's DJD of the right knee is appropriately rated under Diagnostic Codes 5010-5260-5261. See 38 C.F.R. § 4.27 (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen). Under VA regulations, separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25 (2012); see also Esteban, 6 Vet. App. at 261. More specifically, VA General Counsel has concluded that a claimant who has arthritis and instability of a knee may be rated separately under Diagnostic Codes 5003 and 5257 and that evaluation of knee dysfunction under both codes would not amount to pyramiding under 38 C.F.R. § 4.14. See VAOPGCPREC 23-97 (July 1, 1997) and VAOPGCPREC 09-98 (August 14, 1998). Therefore, a veteran who has both arthritis and instability of the knee may be rated separately, provided that any separate rating must be based upon additional disability. See also Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997). Accordingly, the Veteran was assigned a separate 10 percent disability rating under DC 5257 based upon lateral instability. With respect to the right knee, arthritis due to trauma, substantiated by x-ray findings, will be rated as degenerative arthritis. See 38 C.F.R. § 4.71a, Diagnostic Code 5010. Under Diagnostic Code 5003 (degenerative arthritis), arthritis of a major joint be rated under the criteria for limitation of motion of the affected joint. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. For the purpose of rating disabilities due to arthritis, the knee is considered a major joint. See 38 C.F.R. § 4.45 (2012). Degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Where, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). Under Diagnostic Code 5260, limitation of flexion of the leg provides a non-compensable rating if flexion is limited to 60 degrees, a 10 percent rating where flexion is limited to 45 degrees, a 20 percent rating where flexion is limited to 30 degrees, and a maximum 30 percent rating if flexion is limited to 15 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, limitation of extension of the leg provides a non-compensable rating if extension is limited to five degrees, a 10 percent rating if limited to 10 degrees, a 20 percent rating if limited to 15 degrees, a 30 percent rating if limited to 20 degrees, a 40 percent rating if limited to 30 degrees, and a 50 percent rating if limited to 45 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5261. Under Diagnostic Codes 5260 and 5261, a veteran may receive separate ratings for limitations of both flexion and extension. See VAOPGCPREC 9-2004. In a statement dated in October 2004, the Veteran asserted that his right knee continued to worsen--"[i]t stays swollen all the time and hurts a great deal. I need the assistance of a cane to keep me from falling down all the time." In a November 2004 statement, the he asserted that he required a wheelchair. Treatment records from the Indiana Department of Corrections dated in May 2003 documented the Veteran's complaints of arthritis pain in the right knee. Another May 2003 treatment record documented occasional swelling and redness in the right knee. An October 2004 treatment record indicated that the Veteran required a wheelchair "due to having chest pains after any type of exertion." A November 2004 treatment record indicated that the Veteran required a cane for ambulation. VA treatment records dated in May 2005 documented the Veteran's complaints of knee pain and treatment with prescription medication. A June 2005 treatment note indicated that the Veteran complained of right knee pain and ambulated with a cane. Another June 2005 treatment note documented asymmetric muscle strength in the lower extremities--specifically, 3/5 in the right leg due to right knee pain. The treatment provider additional noted that the Veteran experienced joint stiffness in the right knee with no erythema but occasional swelling. A July 2005 treatment record documented "[n]ormal and symmetric muscle bulk and muscle tone in all limbs. No tremor or abnormal movements were observed." An August 2005 treatment record noted the Veteran's diagnosis of severe DJD of the right knee. The Veteran was unable to walk on a treadmill during a cardiovascular stress test in September 2005 due to knee pain and gait instability. A December 2005 treatment record documented "bilateral knee bony crepitus. No redness/joint effusion." A February 2006 treatment record indicated that the Veteran exhibited symmetrical motion and strength in his lower extremities; however, his gait was guarded. The Veteran was afforded a VA general medical examination in August 2005 at which time it was documented that he was in the process of being scheduled for a total right knee arthroplasty. The examiner additionally noted that the Veteran walked with a cane and complained of difficulty maneuvering stairs. It was further indicated that the Veteran could walk "fair distances," although there was significant discomfort. The Veteran's complaints of right knee pain and weakness were also noted. The Veteran was afforded a VA orthopedic examination of his right knee in September 2005. At the time, he characterized his right knee pain as 6/10. It was noted that he was taking Naprosyn to manage the pain. With respect to the right knee pain, the Veteran particularly complained of "starter pain." He also endorsed the feeling of instability and reported that his right leg gives way. The examiner noted that the Veteran was walking with crutches, but no brace, on the day of the examination. Joint effusion was not shown in the right knee. The examiner noted that the Veteran's right knee was stable to varus/valgus stress and he had a negative Lachman and posterior drawer. The examiner explained that the Veteran did have a positive 'shrug and grind' test. Minimal crepitus with range of motion was shown. The Veteran was able to fully extend to zero degrees and flex to 100 degrees. The examiner additionally explained that "[w]ith repetitive motion, [the Veteran] has no decreased range of motion, but he does have significantly increased pain." In an undated letter received in February 2006, Ms. C.A., a VAMC case manager, stated that the Veteran was on the waiting list for a total knee replacement. In a second undated letter also received in February 2006, Ms. C.A. reported that the Veteran "is unable to perform his current duties as a laborer in construction...He is currently not safe to climb ladders or be on any type of roof." She continued, "[h]is permanent restriction will include no lifting or carrying greater than 25 pounds for the rest of his life. He will have climbing restrictions for at least six months." Diagnostic Code 5260 contemplates a 10 percent evaluation where there is limitation of knee flexion to 45 degrees, which is far exceeded by the flexion measurements recorded in the September 2005 VA examination report. Crucially, as demonstrated by the objective evidence of record outlined above, there is no evidence which indicates that a greater limitation of flexion existed in the right knee prior to December 21, 2006. Accordingly, an increased disability rating cannot be assigned based on Diagnostic Code 5260. Diagnostic Code 5261 contemplates a noncompensable evaluation with a limitation of knee extension to 5 degrees. As detailed above, the September 2005 VA examination report described above noted that the right knee extension to no worse than zero degrees. Thus, a compensable disability rating cannot be assigned under Diagnostic Code 5261. In short, under Diagnostic Codes 5260 and 5261, respectively, the limitation of right knee movement exhibited by the Veteran was not so impaired or limited as to warrant an increased evaluation under Diagnostic Code 5260 or 5261, prior to December 21, 2006. To this end, in DeLuca, supra, the Court held that VA's review of a service-connected musculoskeletal disability must include an assessment of the functional impairment caused by that disability. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012). Here, the competent medical evidence does not indicate that the Veteran's symptomatology warranted the assignment of a higher rating. Specifically, the September 2005 VA examiner indicated that the Veteran was able to achieve no less than 100 degrees of flexion and zero degrees of extension despite pain and repetitive motion. Specifically, as indicated above, the September 2005 VA examiner explained, "[w]ith repetitive motion, [the Veteran] has no decreased range of motion, but he does have significantly increased pain." Accordingly, the Board finds that additional disability rating, over and above the currently assigned disability rating for the right knee, is not warranted under Diagnostic Codes 5003,5260, or 5261 at any time during the appeal period. Despite increased pain with repetitions, there was no indication that the pain was so disabling as to equate to greater limitation of flexion or limitation of extension. As indicated above, the RO assigned the Veteran a separate 10 percent disability rating for lateral instability of the right knee, which the Board will consider under Diagnostic Code 5257. See VAOPGCPREC 9-2004. Under Diagnostic Code 5257, a 10 percent disability is warranted when instability is slight, a 20 percent disability is warranted when instability of the knee is moderate, and a 30 percent disability is warranted when instability is severe. The Board observes that the Veteran has repeatedly endorsed weakness and giving way in the right knee, which has resulted in multiple falls throughout the period in question. See, e.g., the VA examination report dated September 2005 and the VA cardio stress test report dated September 2005; see also the Veteran's statements dated October 2004 and November 2004. Additionally, it is undisputed that he uses a cane for ambulation. Critically, the medical evidence of record demonstrates no evidence of lateral instability or recurrent subluxation in the Veteran's right knee upon examination. The Veteran has asserted that his giving way symptoms are so severe as to require the use of a wheelchair. See the Veteran's statement dated November 2004. However, the medical evidence showed that, although the Veteran did, at times, use a wheelchair, he did so due to chest pain the resulted from exertion. See the treatment record from Indiana Department of Corrections dated October 2004. While the Board recognizes that the Veteran required the use of a cane for ambulation, and experienced regular episodes of what he described as giving way, there was no objective medical evidence of knee instability or subluxation. However, as the Veteran is assigned a separate 10 percent disability rating under Diagnostic Code 5257, presumably for complaints of the knee giving way, the Board will not disturb the current evaluation. As indicated above, the Veteran has contended that he was unemployable during the period prior to December 21, 2006 as a result of his service-connected right knee. Accordingly, the Board will herein consider whether the Veteran is entitled to TDIU based upon his right knee problems. The Board notes that the Veteran was incarcerated for a portion of the period under consideration and was released from prison in April 27, 2005. See the Veteran's letter dated June 2005. Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1) (2012). Total ratings are authorized for any disability or combination of disabilities for which the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4, prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). The law also provides that a TDIU due to service-connected disability may be assigned where a veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purpose of determining whether there is a single service-connected disability rated as 60 percent, disabilities of a common etiology or a single accident are considered as one disability. § 4.16(a). In addition, TDIU may be awarded on an extraschedular basis if a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), but is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Factors to be considered are a veteran's education and employment history and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). Individual unemployability must be determined without regard to any non-service-connected disabilities or a veteran's advancing age. 38 C.F.R. § 3.341(a); see also 38 C.F.R. § 4.19 (2012) (age may not be a factor in evaluating service-connected disability or unemployability); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Here, as indicated above, the Veteran has raised the issue of unemployability based on the disabling effects of his service-connected right knee disability, which was assigned two separate 10 percent ratings during the period in question. As he is not entitled to TDIU on a schedular basis for his service-connected right knee disability, his contentions of TDIU will be analyzed on an extraschedular basis. See 38 C.F.R. § 4.16(a) & (b). The Court has stated that in order for a veteran to prevail on a claim for a TDIU under 38 C.F.R. § 4.16(b), the record must reflect some factor that takes his case outside of the norm. The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether a veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. Moreover, as already noted, an inability to work due to non-service-connected disabilities or age may not be considered. 38 C.F.R. §§ 4.14, 4.19. In making its determination, VA considers such factors as the extent of the service-connected disability and a veteran's employment and educational background. 38 C.F.R. §§ 3.321(b), 3.340, 3.341, 4.16(b), 4.19. In this regard, the Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) addressed the matter of extraschedular ratings when it reviewed and affirmed the Court's Thun decision. In Thun, the Federal Circuit expressly stated that "only the Under Secretary [for Benefits] and the [Compensation and Pension] Director have the authority to award an extraschedular rating." Thun, 572, F.3d at 1370. The Federal Circuit found that, at a minimum, the ROs and the Board were intended to play some role in evaluating a claim for an extraschedular rating. Id. However, "[p]ermitting the regional offices and the Board to issue a 'field station submission' in which they recommended extraschedular consideration still reserves to the Under Secretary and the Director the ultimate authority to 'approve' those recommendations based on whether the Veteran should receive an extraschedular rating 'to accord justice.'" Id. The Federal Circuit, in fact, stated that the Court held that "while the Under Secretary for Benefits and the Director of Compensation and Pension Services are the only individuals authorized to assign an extraschedular rating, [ROs] and the Board may conduct initial screening of disability claims and may refer . . . only those claims that meet two of the three regulatory criteria for extraschedular consideration." Thun, 572 F.3d at 1367 (citing Thun, 22 Vet. App. at 111). Lastly, the Federal Circuit stated that its interpretation did not restrict the opportunity for judicial review." If the regional office or the Board makes factual findings adverse to the claimant with regard to the extraschedular claim, those findings will be reviewable by the Veterans Court . . . just as would be the case if those findings were made by the Under Secretary or the Director." Thun, 572 F.3d at 1371. Given the Federal Circuit's interpretation of the extraschedular provisions of 38 C.F.R. § 3.321(b), only the Compensation and Pension Director or the Under Secretary for Benefits has the authority to award an extraschedular rating. The Board possesses no such authority. Thus, pursuant to Thun, the question currently before the Board is limited to whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate and specifically, in the context of the TDIU question, whether the Veteran was unable to secure and follow substantially gainful employment because of his right knee for the period in question. In this matter, the evidence of record does not reflect that the Veteran's right knee disabilities have impacted his employability beyond what is contemplated by the schedular ratings assigned. The Board recognizes the letter from Ms. C.A., received in February 2006, which documented that the Veteran was unable to perform laborer duties in construction as a result of his right knee disabilities. Ms. C.A. stated that the Veteran "is currently not safe to climb ladders or be on any type of roof." She further noted that the Veteran's "permanent restriction will include no lifting or carrying greater than 25 pounds for the rest of his life. He will have climbing restrictions for at least six months." Such restrictions are, however, considered by the current disability ratings. See Van Hoose, supra. Although the Veteran exhibited significant right knee symptomatology including limited motion, pain, and instability, the severity of his symptoms was specifically contemplated by the disability rating assigned for the period from April 2005 to December 2006. See 38 C.F.R. §§ 4.40, 4.45. Crucially, there is no probative medical evidence in the file to support a conclusion that his service-connected right knee disabilities alone made him unemployable for the period under consideration. Although he may not have been able to work as a laborer in construction, there was no indication that his right knee problems precluded other employment. Thus, there is no basis to refer the Veteran's case for consideration of an extraschedular evaluation. Without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating is not warranted. See Thun, 22 Vet. App. at 115-16. As the Veteran does not satisfy the criteria for a TDIU rating under 4.16(a) and his right knee disabilities are not such as to warrant consideration of an extraschedular rating under 38 C.F.R. § 4.16(b), further award of benefits beyond the two 10-percent ratings for the period in question is not warranted. ORDER An increased disability rating in excess of 10 percent for service-connected DJD of the right knee prior to December 21, 2006, is denied. An increased disability rating in excess of 10 for service-connected right knee instability prior to December 21, 2006, is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs