Citation Nr: 1330118 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 08-34 884 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE 1. Entitlement to an increased rating for residuals of medial meniscectomy, right knee, with degenerative changes, currently rated as 10 percent disabling. 2. Entitlement to an increased rating for right knee instability associated with residuals of medial meniscectomy, right knee, with degenerative changes, currently rated as 10 percent disabling. REPRESENTATION Veteran represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The Veteran had active duty service from September 1979 to October 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This case was originally before the Board in June 2011 when an increased rating for residuals of a right medial meniscectomy with degenerative changes was denied. The Veteran appealed the Board's June 2011 denial to the United States Court of Appeals for Veterans Claims (Court). By Order dated April 11, 2012, the Court vacated the Board's June 2011 denial and remanded this matter to the Board for compliance with the instructions included in an April 2012 Joint Motion for Remand (JMR). In April 2013, the Board then remanded the issue addressed in the JMR so that appropriate development may be completed in compliance with the terms of the JMR. An interim July 2013 rating decision granted service connection for right knee instability and assigned a 10 percent disability rating effective July 31, 2007. Since the instability issue arose from the original claim, the issue is before the Board and is reflected on the first page of the decision. FINDINGS OF FACT 1. The Veteran's service-connected residuals of medial meniscectomy, right knee, with degenerative changes, is not productive of ankylosis, frequent episodes of "locking," effusion into the joint, or malunion of the tibia and fibula; there is no additional functional loss so as to limit flexion to 30 degrees or less or to limit extension to 10 degrees or more. 2. The Veteran's service-connected right knee is also productive of slight instability. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability evaluation in excess of 10 percent for the Veteran's service-connected residuals of medial meniscectomy, right knee, with degenerative changes have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.71(a), Diagnostic Codes 5010, 5256-5261 (2012). 2. The criteria for entitlement to a disability evaluation in excess of 10 percent for the Veteran's service-connected right knee instability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.71a and Code 5257 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty 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 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Duty to Notify Upon receipt of a complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice requirements apply to all five elements of a service connection claim: (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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, a timely letter sent in August 2007 provided the notice contemplated by Dingess. The Veteran was provided with notice of the types of evidence necessary to establish a disability rating and an effective date for any rating that may be granted, and this letter explained how VA determines disability ratings and effective dates. The RO provided the Veteran with additional notice in July 2008 which was otherwise compliant with Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. VA has obtained pertinent treatment records, assisted the Veteran in obtaining evidence, and afforded the Veteran VA examinations in September 2007, August 2010, and May 2013. All known and available treatment records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran and his representative have not contended otherwise. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. For all the foregoing reasons, the Board concludes that VA's duties to the claimant have been fulfilled with respect to the issue on appeal. Legal Criteria At the outset, the Board notes that is has reviewed all of the evidence in the Veteran's claims file, as well as in "Virtual VA" (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000)(VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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 order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The two increased rating issues in this case involve the right knee. The Board notes that normal flexion of the knee is to 140 degrees, and normal extension of the knee is to 0 degrees. 38 C.F.R. § 4.71, Plate II. The RO has rated the Veteran's right knee disability as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Codes 5010- 5259. Diagnostic Code 5010 applies to traumatic arthritis and provides that such is evaluated based upon limitation of motion of the affected part, like degenerative arthritis. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. Pursuant to Diagnostic Code 5003, arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations warrants a 20 percent evaluation. X-ray evidence of involvement of two or more major joints or two or more minor joints warrants a 10 percent evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. Additionally, the RO has rated the Veteran's right knee disability as 10 percent disabling under 38 C.F.R. § 4.74a, Diagnostic Code 5257 for instability. Under Diagnostic Code 5257, a rating of 10 percent is warranted when there is slight recurrent subluxation or lateral instability; a 20 percent rating is warranted when there is moderate recurrent subluxation or lateral instability of the knee; and a 30 percent rating is warranted when there is severe recurrent subluxation or lateral instability of the knee. 38 C.F.R. § 4.71 , Diagnostic Code 5257. Turning to other Diagnostic Codes applicable to knee disabilities, the Board notes that a 30 percent disability rating is warranted under Diagnostic Code 5256 when there is ankylosis of the knee with favorable angle in full extension or in slight flexion between 0 and 10 degrees. Under Diagnostic Code 5258, a 20 percent disability rating is available for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. Diagnostic Code 5260 provides that a rating of 10 percent is warranted for flexion limited to 45 degrees; and a rating of 20 percent rating is warranted for flexion limited to 30 degrees. A 10 percent disability rating is allowed under Diagnostic Code 5261 when extension is limited to 10 degrees; and a 20 percent disability rating is allowed when extension of the leg is limited to at least 15 degrees. A 10 percent disability rating is available under Diagnostic Code 5262 when there is malunion of the tibia and fibula with slight knee or ankle disability. A 20 percent disability rating is available when there is malunion of the tibia and fibula with moderate knee or ankle disability. There is no rating in excess of 10 percent available under Diagnostic Codes 5259 and 5263. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5259, 5260, 5261, 5262 and 5263. Further, the Board notes that separate ratings may be assigned for knee disability under Diagnostic Codes 5257 and 5003 where there is x-ray evidence of arthritis in addition to recurrent subluxation or lateral instability. See generally VAOPGCPREC 23-97 and VAOPGCREC 9-98. The opinions of the VA's General Counsel appear to require persuasive evidence that a claimant actually suffers from the symptomatology set forth in the different rating codes before separate ratings may be assigned. Additionally, it should be noted that the Court has held that functional loss, supported by adequate pathology and evidenced by visible behavior of the veteran undertaking the motion, is recognized as resulting in disability. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.10, 4.40, 4.45. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Factual Background In October 2007, the Veteran was seen in the emergency room for right knee pain. At that time, fluid was aspirated from the knee. While there was edema, he had full range of motion and Lachman's and McMurray's tests were negative. A follow up November 2007 record showed that the knee was markedly improved. There was no further swelling. On examination, range of motion was normal and there was no effusion. Follow up treatment records showed that the Veteran presented to discuss orthotic options as his right knee pain was limiting his ability to work. In November 2007, the Veteran was fitted with a right knee brace. The Veteran was afforded a VA fee-based examination in September 2007. The Veteran reported stiffness, swelling, and dislocation. He did not have redness, heat weakness, giving way, lack of endurance, locking or fatigability. He also indicated that he had constant pain that was about a seven out of 10. He stated that his condition did not cause incapacitation and there were no prosthetic implants. The functional impairment was no long distance running. The examiner observed a scar present at the right medial knee measuring 9 cm by 1 cm with hypopigmentation of less than six square inches. There was no tenderness, disfigurement, ulceration, adherence, instability, tissue loss, inflammation, edema, keloid formation, hyperpigmentation or abnormal texture. On physical examination, the Veteran's gait was normal and he did not require an assistive device. The right knee showed no signs of edema, effusion, weakness, tenderness, redness, heat, subluxation or guarding of movement. There was no locking pain, genu recurvatum or crepitus. Range of motion was zero degrees extension to 140 degrees flexion with pain at 140 degrees. The examiner indicated that joint function was limited following repetitive use by pain, fatigue, weakness, lack of endurance with pain have the major functional impact. Joint function was not limited by incoordination. The examiner determined that joint function was limited by zero degrees. Further, the anterior and posterior cruciate ligaments stability test, the medial and lateral collateral ligaments stability test, and the medial and lateral meniscus test were within normal limits. A contemporaneous x-ray showed intramedullary calcification distal right femur most consistent with an old bone infarction and mild degenerative joint disease in the right knee and patella. A January 2008 record showed that the Veteran indicated that his brace was not working well because it hurt after wearing it all day and he requested a new brace. The Veteran denied swelling or redness. In February 2008, the Veteran was treated for right knee pain, achy in nature, worse with activity and better with rest. The Veteran reported the pain interfered with his work which involved a lot of bending and activity. On physical examination, it was noted that range of motion was normal; there was point tenderness over the medial joint line, but without tenderness over the pes anserine; no anterior and posterior instability, no medial and lateral instability; pain with McMurrays test, and patella grind negative. Chronic right knee osteoarthritis was diagnosed. A March 2008 MRI showed that the anterior cruciate and posterior cruciate ligaments were intact; the lateral meniscus was intact; and the medial meniscus was mostly absent. The anterior cartilages of the medial tibial femoral joint were nearly completely eroded with underlying cortical irregularity and bony edema on both sides of the joint consistent with degenerative changes. No fracture was found. The medial and lateral collateral ligaments and popliteus tendon were all intact. The articular cartilage and cortex of the patella were eroded with slightly greater involvement of the lateral aspect. Mild subluxation, as well as edema of the patella and adjacent femoral surface was present, consistent with degenerative changes. Small bony spurs along the tibial and femoral articular surfaces were identified. A May 2008 treatment record notes the Veteran was seen for continued intermittent medical right knee pain, which was worse with activity and better with rest. On physical examination, it was noted that range of motion was normal; there was point tenderness over the medial joint line, but without tenderness over the pes anserine; no anterior and posterior instability, no medial and lateral instability; pain with McMurrays test, and patella grind with some medial crepitus and reproduction of pain. The Veteran was assessed with chronic right knee pain due to right knee medial compartment degenerative changes likely related to a medial compartment meniscectomy. The Veteran was prescribed physical therapy to strengthen his right knee in August 2008. Additionally, in August 2008, the Veteran was fitted for a custom-molded right knee brace. The Veteran was afforded another VA fee-based examination in August 2010. The Veteran reported the following symptoms: weakness, stiffness, swelling, giving way, lack of endurance, locking, tenderness and pain. He did not experience heat, redness, fatigability, deformity, drainage, effusion, subluxation or dislocation. He experienced flare-ups as often as once a week that lasted for four days. The pain level was an eight out of 10. During flare-ups, he reported difficulty walking and standing. He had not had incapacitation in the last 12 months. He also indicated that he did not experience any overall functional impairment from this condition. The examiner observed the scar located on the right knee, which was linear and measured 6.5 cm by .75 cm. It was not painful on examination. There was no skin breakdown, underlying tissue damage, inflammation, edema or keloid formation. The scar was not disfiguring and it did not limit motion. There was no limitation of function due to the scar. The Veteran's gait was normal and he did not require assistive devices. On examination of the right knee, there was tenderness, but no edema, instability, abnormal movement, effusion, weakness, redness, heat, deformity, guarding of movement, misalignment, subluxation or drainage. While there was crepitus, there was no genu recurvatum or locking pain. There was also no ankylosis. Range of motion was zero degrees extension to 130 degrees flexion with pain at 130 degrees. Joint function was not additionally limited by pain, fatigue, lack of endurance or incoordination after repetitive use. The medial/lateral collateral ligaments stability test, the anterior/posterior ligaments stability test and the medial/lateral meniscus stability test were all within normal limits. The diagnosis was changed to status post medical meniscectomy with scar, right knee, with degenerative changes. The examiner concluded that the effect on the Veteran's usual occupation was none as reported by the Veteran and the effect on his daily activities was minimal. Recent treatment records show the Veteran continues to receive treatment for chronic knee pain. Following the April 2013 remand, the Veteran underwent a VA examination in May 2013. The Veteran reported feeling as if he has poor stability of his right knee. He reported episodes of giving way of the right knee, but no falls and no injuries. He also reported swelling and stiffness. The Veteran reported activities that make his knee pain worse include, climbing up and down stairs, prolonged sitting, prolonged walking, getting out of the tub, getting up from a chair, overhead work, problems lifting, stooping, and kneeling. He reported avoiding kneeling and stooping whenever possible. He does some yard work and his spouse helps with chores and shopping. The Veteran reported losing five to six days from work due to pain and swelling in the right knee. Pain was reported predominantly anterior by the patella, and is present both day and night. The Veteran reported cool and wet weather increases pain. Pain is between zero and nine on a scale of 10. Although on the day of examination, the Veteran did not use any assistive devices, he reported that he uses a hinged knee brace and knee sleeve at least once a week. On examination, after sitting for fifteen minutes, the Veteran indicated he had no pain. There was no evidence of weakness, he did not lean to the sides, he did not grimace, and there was no need to stand early. The Veteran stood from a seated position without pushing off the arms of the chair without difficulty. There was no grimacing and no shifting of weight to the left side. The Veteran reported the pain in his knee increased to a three or four with standing. The Veteran was able to walk approximately sixty feet without limp. Pain was reported as at a three. On examination, there was moderate tenderness of the right knee in that patellar tendon, mild tenderness in the quadriceps tendon, moderate tenderness of the medial patellofemoral joint edge, mild tenderness of the lateral patellorfemoral joint edge, mild tenderness of the poplital area, and mild tenderness of the medial joint line. There was also moderate swelling and increased warmth of the right knee. There is no evidence of laxity of the ligaments. Steinman test of the right knee was painful and McMurray's test could not be done because of decreased tolerated flexion of the right knee. Range of motion studies showed a 5 degree flexion contracture. The right knee cannot be fully extended. Right knee flexion is between 5 degrees and 125 degrees. Further flexion is limited by a feeling of tightness and pain. After repetitive testing, no additional loss of range of motion of the right knee was evidenced. There was no weakness, lack of endurance, or incoordination. The examiner noted there were three scars over the right anterior knee, measuring 2 centimeters, 5 centimeters, and 2 centimeters in length. There was numbness and a feeling of tingling at these scars. The scars were not tender. X-rays taken in conjunction with the examination showed narrowing of the medial compartment of the right knee with medial, lateral, and patellofemoral spurs consistent with osteoarthritis. No acute fractures or dislocations were shown. There was ossification posterior to the right knee. The examiner noted there is moderate functional impairment of the Veteran's right knee, including symptoms of weakness of the right knee and feelings of giving away, but no falls. Pursuant to the JMR, the examiner was asked to specifically comment as to whether the Veteran has subluxation or instability of the right knee. The examiner noted that there was no clinical evidence of recurrent subluxation or instability on examination, but that the Veteran reported feelings of giving way, without falls. The examiner noted that these feelings of giving way could be interpreted as instability of the knee. The examiner also noted the Veteran has symptoms of mild instability. The examiner opined that the lateral subluxation shown on the March 2008 MRI is related to the degenerative changes and cartilage loss on the undersurface of the patella and the lateral femoral condoyle. The examiner continued that the MRI did not indicate the Veteran has clinical lateral subluxation of the right knee, and there is no evidence of past subluxations or dislocations of the right patella, and no clinical signs of subluxation of the right patella on examination. Analysis The Board acknowledges that the Veteran has degenerative arthritis as residuals of medial meniscectomy and that his disability can be evaluated higher based on limitation of motion under Diagnostic Code 5260 and 5261. However, flexion of the Veteran's right knee was no less than 125 degrees on examination. Even considering the additionally functional loss due to pain, fatigue, weakness, lack of endurance as reported on the September 2007 examination, there is no evidence that flexion is limited to 30 degrees so as to warrant assignment of a higher rating under Diagnostic Code 5260. Additionally , even though on the most recent examination it was noted that the Veteran could not fully extend the right knee, there was no evidence to show extension is limited to 10 degrees so as to warrant assignment of a compensable rating under Diagnostic Code 5261. The Board has considered the VA General Counsel Precedent Opinion, VAOPGCPREC 9-2004 (September 17, 2004), where it was held that a claimant who had both limitation of flexion and limitation of extension of the same leg must be rated separately under diagnostic codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. This however does not seem to apply to the veteran's case given that a compensable rating is not warranted for limitation of extension under Code 5261. The Board does not interpret the General Counsel opinion as providing for separate ratings for any limitation of flexion and extension which does not meet the criteria for compensable ratings under Codes 5260 and 5261. The Board notes that there is no malunion of the tibia or fibula with moderate knee or ankle disability to warrant a 20 percent rating under Diagnostic Code 5262. The Board also notes that Diagnostic Codes 5259 and 5263 do not provide for disability ratings in excess of 10 percent. Therefore, they are not applicable to this analysis. In turning to the Diagnostic Codes applicable to the knees which do provide for disability ratings in excess of 10 percent, the Board notes that a 30 percent disability rating under Diagnostic Code 5256 would not be warranted in this case because there was no diagnosis of ankylosis at any time during the pendency of the appeal. With regard to Diagnostic Code 5258, there is no evidence of frequent episodes of "locking," pain, and effusion into the joint to warrant a 20 percent rating under this code. While there is documentation of mild swelling, the VA examinations found no evidence of effusion. Further, the criteria under this code are conjunctive. In other words, all the criteria must be met. There has been no evidence of frequent episodes of locking. Thus, even if the Veteran had effusion on occasion, as there is no evidence of frequent episodes of locking, a higher rating cannot be afforded under this code. Additionally, the Board finds that a rating in excess of 10 percent is not warranted for right knee instability under Diagnostic Code 5257. A March 2008 MRI showed mild subluxation. Additionally, the Veteran reported feelings of his knee giving away, but he did not report any falls. The Veteran used a knee brace, but on the most recent examination reported only using the knee brace once a week. When asked to opine specifically on the severity of the Veteran's instability, the May 2013 examiner noted that there was no clinical evidence of recurrent subluxation or instability on examination, but that the Veteran reported feelings of giving way, without falls. The examiner further noted that these feelings of giving way could be interpreted as instability of the knee. The examiner concluded the Veteran had symptoms of mild instability. There is no evidence of moderate instability, thus a higher rating for instability is not warranted. Additionally, the examiner continued that the 2008 MRI did not indicate the Veteran has clinical lateral subluxation of the right knee, there is no evidence of past subluxations or dislocations of the right patella, and no clinical signs of subluxation of the right patella on examination. As no subluxation has been shown, a higher rating based on moderate subluxation is not warranted. Diagnostic Code 5257. The Board acknowledges that the Veteran has knee pain and thus, recognizes the application of 38 C.F.R. §§ 4.40 and 4.45, and DeLuca. However, a higher compensation is not warranted under these provisions because there is no persuasive evidence of additional functional loss due to pain, weakness, fatigue, or incoordination which would limit motion to such a degree so as to warrant a rating in excess of the current 10 percent. Again, VA examinations only documented flexion limited to 125 degrees with pain at that point. While the September 2007 VA examination did indicate that joint function was limited following repetitive use by pain, fatigue, weakness, lack of endurance it also indicated that it was limited by zero degrees. Significantly, the August 2010 and May 2013 VA examiners found that joint function was not additionally limited by pain, fatigue, lack of endurance, or incoordination after repetitive use. Further, as the Veteran's scar is superficial and linear and is considered not painful, unstable or limits function, a separate compensable rating for the right knee scar is not warranted. See 38 C.F.R. § 4.118. The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where scheduler evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The application of such schedular criteria was discussed in great detail above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe a Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe a Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate a Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether a Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the symptoms described by the Veteran fit squarely within the criteria for the disabilities at issue. The current applicable Codes expressly address the Veteran's disabilities and associated pain, range of motion, and functional limitations. In short, the rating criteria contemplate not only his symptoms but the severity of his disability. For these reasons, referral for extraschedular consideration is not warranted. Lastly, the United States Court of Appeals for Veterans Claims (Court) has held that a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim, or, if the disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet.App. 447, 453-54 (2009). In this case, while the Veteran has indicated that his right knee disability interferes with his work, and that he has lost five or six days from work due to pain and swelling in the right knee, he has not claimed that he cannot work and the evidence of record has not shown that the Veteran was unemployable due to the service-connected right knee disability. In summary, for the reasons and bases set forth above, the Board concludes that the preponderance of the evidence is against the claims of entitlement to an increased disability rating for residuals of medial meniscectomy, right knee, with degenerative changes and for an increased rating for right knee instability. As the preponderance of the evidence is against the claims, the benefit of the doubt rule is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Assignment of staged ratings is also not applicable. Fenderson, supra. ORDER A rating in excess of 10 percent for residuals of medial meniscectomy, right knee, with degenerative changes, is not warranted. A rating in excess of 10 percent for right knee instability associated with residuals of medial meniscectomy, right knee, with degenerative changes, is not warranted. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs