Citation Nr: 1327358 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 09-08 735 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to a higher initial disability rating (evaluation) for right knee degenerative joint disease, in excess of zero percent prior to January 16, 2009, and in excess of 10 percent from January 16, 2009. ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from October 1984 to September 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which granted service connection for right knee degenerative joint disease and assigned an initial noncompensable (zero percent) rating effective September 1, 2007, the first day after separation from active service. The Veteran timely appealed the initial rating assigned. The appeal was transferred to the RO in Philadelphia, Pennsylvania. In October 2012, the RO granted a 10 rating, effective from January 16, 2009, creating a "staged" rating. As the staged ratings assigned do not represent a full grant of the benefits sought for either period, the initial rating issue remains on appeal to the Board. In February 2013, the Board remanded this matter for clarification of findings from a September 2012 VA examination. The requested clarification has been provided in accordance with the remand instructions, and the appeal is now again before the Board. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal that are not already of record. FINDINGS OF FACT 1. Throughout the entire initial rating period from September 1, 2007, right knee degenerative joint disease has shown X-ray evidence of arthritis, with painful motion that is productive of noncompensable limitation of flexion or extension. 2. Throughout the entire initial rating period from September 1, 2007, right knee degenerative joint disease with pain has not manifested to a compensable limitation of flexion or extension. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for an initial rating of 10 percent for right knee degenerative joint disease were met effective September 1, 2007. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003 (2012). 2. The criteria for an initial rating in excess of 10 percent for right knee degenerative joint disease have not been met or more nearly approximated at any time during the initial rating period on appeal. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.71a, Diagnostic Code 5003 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). VCAA notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO provided a VCAA notice letter to the Veteran in May 2007, prior to initial adjudication of the claim for service connection and the subsequent assignment of an initial rating. The letter notified the Veteran of what information and evidence must be submitted to substantiate the claim, including a description of what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claim to the RO. The content of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The Veteran's appeal arises from an appeal of the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims). Based on the foregoing, adequate notice was provided to the Veteran prior to the transfer and certification of this case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and no further notice is needed under VCAA Next, VA has a duty to assist a veteran in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012); see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the "duty to assist is not boundless in its scope" and "not all medical records . . . must be sought - only those that are relevant to the veteran's claim"). In this case, service records have been obtained, as have records of VA treatment as well as records from the Social Security Administration (SSA). These pertinent records have been associated with the Veteran's claims file and reviewed in consideration of the issue before the Board. The Veteran was afforded VA examinations in January 2009 and September 2012, during which physical examinations of the Veteran were conducted, the Veteran's lay history was taken down and considered, factual foundations for the conclusions reached were laid, and the conclusions reached were based on histories and examinations that are consistent with the record. While the September 2012 VA examiner did not have access to the Veteran's claims file at the time of the original examination, the claims file was reviewed prior to the issuance of an addendum opinion by the same examiner in April 2013. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2012); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of their opinion). The Board finds that all necessary development has been accomplished. In addition to the evidence discussed above, the Veteran's statements in support of the claim are also of record. The Board has carefully considered such statements and concludes that no available outstanding evidence has been identified. Additionally, the Board has reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For these reasons, the Board finds that the duties to notify and assist the Veteran in the development of this claim have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Initial Rating for Right Knee Degenerative Joint Disease Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's appeal for a higher initial rating for right knee degenerative joint disease is an appeal from the initial assignment of a disability rating in March 2008. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). Here, as the evidence discussed below shows, the disability has not significantly changed and a uniform evaluation is warranted. In the March 2008 rating decision on appeal, the Veteran was awarded service connection for right knee degenerative joint disease and granted an initial noncompensable (zero percent) evaluation, effective September 1, 2007, the first day after separation from active service. In a subsequent October 2012 rating decision, a 10 percent rating was granted for right knee degenerative joint disease, effective for the period from January 16, 2009, thus creating a "staged" initial rating. The Veteran's right knee degenerative joint disease was rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC or Code) 5003-5260. Hyphenated Diagnostic Codes are used when a rating under one Code requires use of an additional DC to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27 (2012). The additional Code, shown after the hyphen, represents the basis for the rating, while the primary Code indicates the underlying source of the disability. In this case DC 5260 is used for rating limitation of motion of the leg, while DC 5003 represents arthritis, the underlying source of the disability. DC 5003 provides that degenerative arthritis that is 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. When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, DC 5003 provides a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. 38 C.F.R. § 4.71a. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, DC 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. Id. DCs 5260 and 5261 set forth rating schedules for limitation of motion of the leg, with normal ranges of motion of the knee from 0 degrees in extension, to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. DC 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 60 degrees is rated noncompensably (0 percent) disabling; flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. 38 C.F.R. § 4.71. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint). DC 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 5 degrees is rated noncompensably (0 percent) disabling; extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. Id. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint). Under DC 5262, impairment of the tibia and fibula characterized by malunion with moderate knee or ankle disability warrants a 20 percent evaluation, while malunion with marked knee or ankle disability warrants a 30 percent rating. Impairment of the tibia and fibula manifested by nonunion with loose motion, requiring a brace, warrants a maximum 40 percent rating. Id. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. In addition, when assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA is generally required to consider the extent that a veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when symptoms are most prevalent ("flare-ups") due to pain, weakness, premature or excess fatigability, and incoordination. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. Service connection has been granted, and a separate 10 percent disability rating has been assigned for, right knee medial valgus laxity, rated under Diagnostic Code 5257 (for recurrent subluxation or lateral instability). See VAOPGCPREC 23-97 and VAOPGCPREC 9-98. For this reason, the Board will not report or consider any impairment or symptomatology associated with that separate knee disability when rating the right knee arthritis disability that is currently on appeal, including reports of instability or subluxation and similar or analogous symptoms. To consider and rate on any symptomatology attributable to the service-connected right knee medial valgus laxity when rating the right knee arthritis would amount to prohibited pyramiding. See C.F.R. § 4.14 (2012) (the evaluation of the "same disability" or the "same manifestation" under various diagnoses is to be avoided); Esteban v. Brown, 6 Vet. App. 259 (1994) (holding that, for purposes of determining whether an appellant 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 condition is duplicative of or overlapping with the symptomatology of the other condition). In rating the right knee arthritis, the Board has considered all other knee symptoms attributable and ratable as part of the disability of arthritis, including all limitation of motion, including due to pain and other factors indicated at 38 C.F.R. §§ 4.40, 4.45, 4.59, and DeLuca, 8 Vet. App. 202. The Veteran's contentions regarding the condition of his right knee arthritis disability include a March 2009 statement to VA in which the Veteran endorsed pain, swelling, and restricted movement of the right knee after "any type of exercise (running, hiking, biking, yard work etc.)." The Veteran stated that, during periods of the year when he is exercising and performing outside activities, he takes ibuprofen to control swelling and pain. The Veteran indicated that during the winter he does not belong to a gym and "because of weather and work schedule [he gets] very little exercise." He further contended during the January 2009 VA examination that he had not biked, hiked, or participated in any exercise activity for three months, so his knee did not show the symptoms which he says are typically present during active periods. The Veteran requested reevaluation following a "period of activity" so that the symptoms he experiences may be properly evaluated. On pre-separation VA examination in June 2007, the Veteran had no current complaints "as long as he doesn't run." He did not use a knee brace, and the examiner noted no pain, weakness, fatigability, decreased endurance, or incoordination. The examiner indicated that the right knee was not tender to palpation, and there was no swelling, deformity, or instability; however, no range of motion testing was performed. X-ray imaging revealed mild degenerative joint disease. On VA examination in January 2009, the Veteran reported taking over-the-counter ibuprofen approximately twice a week "with good results" regarding his knee. He also reported that on prolonged walking or hiking his knee had some pain. The Veteran was not using a brace. The Veteran did not run "like he used to due to the knee problem," and he stated some increased pain with repeated use. The examiner opined that right knee degenerative joint disease did not affect the Veteran's activities of daily living. A physical therapy consultation, performed as part of the VA examination, revealed that the Veteran had zero degrees of extension and 120 degrees of flexion in the right knee. These ranges of motion did not change with repetitions of motion, and were not painful. On VA examination in September 2012, the Veteran denied any persistent pain, except when running, and said that his right knee sometimes swells after extensive running. The Veteran otherwise ambulated normally and without the use of any assistive devices. On physical examination, the Veteran had zero degrees of extension and 140 degrees of flexion in the right knee. There was no objective evidence of pain on flexion or extension, and the range of motion did not change on repetitive use testing. There was no evidence of pain on palpation, and joint stability tests were normal other than medial-lateral instability testing of the right knee which has been rated separately and is not the subject of the present appeal and to rate the Veteran's instability in the context of the present appeal would constitute pyramiding. See 38 C.F.R. § 4.14 (the evaluation of the same manifestation under different diagnoses is to be avoided). There was no evidence of current or past recurrent patellar subluxation. Findings associated with range of motion testing were confirmed by the examining physician in an April 2013 addendum opinion during which the claims file was also reviewed. As previously stated, the Veteran requested reevaluation following a "period of activity," contending that he is not physically active during the winter months. To the end, because of the timing of the September 2012 VA examination, it was performed during what the Veteran has indicated is an active time of year for him. Furthermore, when questioned by the September 2012 VA examiner about additional limitations during flare-ups, the VA examination report reflects that the Veteran reported only "discomfort and swelling after extensive running." The Veteran is competent to report on symptoms such as discomfort and swelling as these are susceptible to lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Based on the foregoing, the Board finds that the 2009 and 2012 VA examinations relied on for rating purposes are fully adequate, including in identifying additional functional loss of motion on "flare-ups" and due to pain, weakness, premature or excess fatigability, and incoordination. After reviewing the entire claims file, both lay and medical evidence, the Board finds that the Veteran's right knee degenerative joint disease has more nearly approximated the criteria for a 10 percent, but not more than 10 percent, rating throughout the periods on appeal under DC 5003 based on arthritis with painful, but noncompensable, limitation of motion. Specifically, the Board finds that the Veteran's right knee has been productive of painful motion with X-ray evidence of arthritis, but noncompensable limitation of flexion or extension for the entire rating period, even with considerations of additional limitations due to pain and reported flare ups of knee disability. The Veteran's endorsements of pain and swelling are competent, see Jandreau, 492 F.3d 1372, and credible as he has been consistent in reporting such symptoms throughout the record. Nonetheless, the Veteran has not endorsed, and the evidence has not otherwise shown, that additional limitation of motion due to pain and swelling, including during flare ups, meets the level of a compensable limitation (e.g., limited to 45 degrees in flexion or 10 degrees in extension). 38 C.F.R. § 4.71a, DCs 5260, 5261. See DeLuca; see also 38 C.F.R. §§ 4.40, 4.59. Rather, the evidence shows that the Veteran's ranges of motion, even when considering additional limitation due to endorsed pain and swelling, is from zero degrees of extension to 120 degrees of flexion of the right knee. See VAOPGCPREC 9-98 (motion of a joint effectively ends where pain begins). Such ranges of motion are not compensable under DCs 5260 or 5261. 38 C.F.R. § 4.71a. In its October 2012 rating decision, the RO assigned an initial compensable rating of 10 percent, effective January 16, 2009, as this was the date of a VA examination showing objective evidence that the Veteran's right knee was painful. In so doing, the RO noted that, on the pre-separation VA examination in June 2007, the Veteran had no current complaints "as long as he doesn't run." Based on the Veteran's statement, the Board finds that at the time of his June 2007 VA examination, the Veteran had pain during flare ups (e.g., while running). Again, painful motion, even if only during flare ups, combined with X-ray evidence of arthritis, and the Veteran's reports of right knee swelling, more nearly approximates the criteria for a 10 percent rating under Diagnostic Code 5003 (arthritis with pain with noncompensable limitation of motion). DeLuca; 38 C.F.R. § 4.71a, DC 5003. Thus, the 10 percent rating is warranted for the entire initial rating period, which begins September 1, 2007, the first day after discharge from active service. A rating in excess of 10 percent is not possible for the one right knee joint under the current Diagnostic Code 5003 for any period, as DC 5003 does not provide for a rating in excess of 10 percent for a single major joint. Additionally, as discussed above, and specifically considering additional limitations of motion and function during periods of pain and swelling during flare ups, under DCs 5260 and 5261, the right knee range of motion does not more nearly approximate limitation to a compensable degree. Throughout the rating period on appeal, the right knee arthritis disability has resulted in limitation of flexion and extension only to a noncompensable degree. Even with consideration of additional limitations of motion due to pain and swelling, at no time during the appeal period has right knee arthritis been productive of limitation of flexion to 45 degrees (DC 5260) or limitation of extension to 10 degrees (DC 5261) to warrant separate 10 percent disability ratings for both flexion and extension. See VAOPGCPREC 09-04 (interpreting that separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint). In order to warrant a higher, 20 percent, rating, the range of motion must be limited to 30 degrees of flexion (DC 5260) or 15 degrees of extension (DC 5261). In this case, the Veteran's range of motion of the right knee is from 120 degrees of flexion to zero degrees of extension. The Board has also considered whether a higher rating may be warranted under a different Diagnostic Code, and finds that none are applicable. The right knee is not ankylosed (DC 5256), semilunar cartilage is not dislocated (DC 5258). Of the remaining Diagnostic Codes relating to the knee, none provide a rating of greater than 10 percent. 38 C.F.R. § 4.71a. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board concludes that the Veteran's right knee degenerative joint disease disability has been 10 percent disabling, but not more, throughout the entire initial rating period on appeal. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration The Board has also considered whether referral for an extraschedular rating is warranted for right knee degenerative joint disease. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Here the rating criteria for the disability at issue reasonably describe and assess the Veteran's disability level and symptomatology. The criteria rate the disability on the basis of X-ray evidence of arthritis, pain, and functional limitation; thus, the demonstrated manifestations - namely X-ray evidence of arthritis and pain with limitation of motion - are contemplated by the provisions of the rating schedule. The General Rating Formula provides ratings with or without symptoms such as pain, stiffness, or aching in the area of the spine, even though in determining the ranges of motion, the effects of pain and functional impairment have been taken into account, are contemplated in the assigned rating, and are incorporated as part of the schedular rating criteria. See 38 C.F.R. §§ 4.40 , 4.45, 4.59; DeLuca at 205-06. As the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate. For these reasons, the Board finds that the schedular rating criteria is adequate to rate the Veteran's right knee degenerative joint disease, and referral for consideration of an extra-schedular evaluation is not warranted. Finally, the evidence indicates that the Veteran's right knee degenerative joint disease does not raise a claim of individual unemployability. This includes a report by the September 2012 VA examiner to the effect that the right knee arthritis does not affect employability. Consequently, the matter of entitlement to a total disability rating based on individual unemployability is not raised by the Veteran or the evidence of record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER An initial rating of 10 percent for the entire rating period from September 1, 2007 to January 16, 2009 is granted; a disability rating in excess of 10 percent for any period is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs