Citation Nr: 1333545 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 12-25 479 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the left knee. 2. Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the right knee. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD C. Ozger-Pascu, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1978 to September 1981. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which granted an increased disability rating of 10 percent for degenerative joint disease (DJD) of the left and right knee, respectively, effective as of September 22, 2010. The Board notes that in addition to the paper claims file there is a paperless, electronic claims file associated with the Veteran's claims. A review of the documents in such file reveals that they do not contain any additional evidence relevant to the issues on appeal. FINDINGS OF FACT 1. The Veteran's degenerative joint disease of the left knee has been productive of pain with extension to 0 degrees and flexion to no less than 90 degrees including on repetition, without evidence of ankylosis, recurrent subluxation or lateral instability, dislocated or removed semilunar cartilage, nonunion or malunion of the tibia and fibula, or genu recurvatum; even considering the Veteran's pain an corresponding functional impairment, including during flare-ups, the preponderance of the evidence shows he does not have limitation of flexion to 45 degrees or extension to 10 degrees. 2. The Veteran's degenerative joint disease of the right knee has been productive of pain with extension to 0 degrees and flexion to no less than 90 degrees including on repetition, without evidence of ankylosis, recurrent subluxation or lateral instability, dislocated or removed semilunar cartilage, nonunion or malunion of the tibia and fibula, or genu recurvatum; even considering the Veteran's pain an corresponding functional impairment, including during flare-ups, the preponderance of the evidence shows he does not have limitation of flexion to 45 degrees or extension to 10 degrees. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for degenerative joint disease of the left knee have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5103, 5103A, 5107(b), 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a Diagnostic Codes (DCs) 5003, 5256-5263, 5271 (2013). 2. The criteria for a disability rating in excess of 10 percent for degenerative joint disease of the right knee have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5103, 5103A, 5107(b), 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a Diagnostic Codes (DCs) 5003, 5256-5263, 5271 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veteran seeks an increased rating in excess of 10 percent for his degenerative joint disease of the left and right knee, respectively. VA has a duty to provide the Veteran with notification of the information and evidence necessary to substantiate the claim submitted, the division of responsibilities in obtaining such evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements regarding an increased rating were accomplished in letters dated November 2010 and November 2011 provided before the adjudication of the claims. The letters notified the Veteran of the information and evidence needed to substantiate his increased rating claims. He was told that the evidence must show that his service-connected disability had gotten worse. The letter also provided notice of the type of evidence necessary to establish a disability rating or effective date for the disability under consideration, pursuant to Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Veteran has not indicated there are any additional records that VA should seek to obtain on his behalf. Accordingly, the Board finds that VA satisfied its duty to notify under the VCAA in accordance with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent post-service medical treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Although VA need not provide a medical examination in all cases, once the Secretary undertakes the effort to provide one, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A VA medical opinion is adequate if it (1) is based upon consideration of the veteran's prior medical history, (2) describes the disability in sufficient detail so that the Board's "'evaluation of the claimed disability will be a fully informed one,'" Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)), and (3) "supports its conclusion with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Here VA provided the Veteran with two VA examinations, in December 2010 and again in January 2012, after he reported that his left and right knee disabilities had become worse. Significantly, the Board observes that the Veteran does not report that his right or left knee disabilities have worsened since that time and thus a remand for another VA examination is not necessary. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). The Board finds that both VA examinations are adequate for adjudicatory purposes because the examiners discussed the Veteran's medical history, performed a physical evaluation of his lower leg joints, described their findings in sufficient detail, and supported their conclusions with objective diagnoses and X-ray and MRI reports. The Board observes that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues, including VA treatment records and examination reports, has been obtained. Thus, the Board finds that VA made reasonable efforts to satisfy its duty assist the Veteran to substantiate his claim and that no further assistance to develop evidence is required. Increased Rating Analysis The Veteran contends that his left and right knee disabilities warrant a rating higher than the current 10 percent rating he is assigned. For the reasons explained below, however, the Board finds that a rating in excess of 10 percent for his knee disabilities is not warranted. Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent, as far as can be practicably determined, the average impairment in earning capacity in civil occupations. 38 U.S.C.A. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. Where an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, a claimant may experience distinct degrees of disability that 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 below, therefore, considers the possibility that different ratings may be warranted for different time periods. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, but not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The United States Court of Appeals for Veterans Claims (Court) has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained, pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, therefore, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board notes that the assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One Diagnostic Code may be more appropriate than another based on such factors as a veteran's relevant medical history, current diagnosis, and demonstrated symptoms. Any change in Diagnostic Code by a VA adjudicator must be explained with specificity. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The RO has evaluated the Veteran's degenerative joint disease of the knees, at 10 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5260, as of September 22, 2010-the date of the Veteran's claim for an increased evaluation. Under 38 C.F.R. § 4.71a, there are several Diagnostic Codes that apply to evaluating impairment resulting from service-connected knee disorders. Diagnostic Codes (DCs) 5003 and 5010, evaluate degenerative and traumatic arthritic conditions. 38 C.F.R. § 4.71a. Diagnostic Code (DC) 5010 applies to traumatic arthritis and provides that it be evaluated under the criteria for 38 C.F.R. § 4.71a, DC 5003. DC 5003 provides that degenerative arthritis is to be rated on the basis of the limitation of motion of the affected joint under the appropriate DC of the specific joint or joints involved. When the limitation of motion of the specific joint or joints is noncompensable under the appropriate DC, a rating of 10 percent may apply for each major or minor joint group affected by the limitation of motion. Similarly, a 10 percent evaluation is provided where there is X-ray evidence of involvement of two or more major joints, or two of more minor joint groups without exacerbations. In the absence of a compensable limitation of motion, a 20 percent evaluation is provided where there is X-ray evidence of involvement of two or more major joints, or two of more minor joint groups with occasional incapacitating exacerbations. Knee impairment with recurrent subluxation or lateral instability warrants a 10 percent evaluation if it is slight; a 20 percent evaluation if it is moderate; or, a 30 percent evaluation if it is severe. 38 C.F.R. § 4.71a, DC 5257. Limitation of flexion of a leg warrants a noncompensable evaluation when flexion is limited to 60 degrees. A 10 percent evaluation is appropriate if flexion is limited to 45 degrees and a 20 percent evaluation is assigned if flexion is limited to 30 degrees. Flexion that is limited to 15 degrees is evaluated as 30 percent disabling. 38 C.F.R. § 4.71a, DC 5260. Limitation of extension of a leg is noncompensable when extension is limited to 5 degrees. A 10 percent evaluation is warranted with extension limited to 10 degrees and a 20 percent evaluation when it is limited to 15 degrees. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, DC 5261. A rating of 20 percent applies where there is malunion of the tibia and fibula with moderate knee or ankle disability. A rating of 30 percent applies where there is malunion of the tibia and fibula with marked knee or ankle disability. A rating of 40 percent applies where there is nonunion of the tibia and fibula, with loose motion requiring a brace. 38 C.F.R. § 4.71a, DC 5262. Additional rating criteria apply under DC 5256 for ankylosis of the knee. DC 5258 provides for a 20 percent rating for dislocated, semilunar cartilage with frequent episodes of locking, pain and effusion into the joint. DC 5259 provides for a 10 percent rating for symptomatic removal of the semilunar cartilage. VA's General Counsel has clarified that for a knee disability rated under DC 5257 or DC 5259 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under DC 5260 or DC 5261 need not be compensable, but must at least meet the criteria for a zero-percent rating under these Codes. A separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59 and DC 5003. VAOPGCPREC 9-98 (1998). VA's General Counsel has also held that separate ratings are also available for limitation of flexion and limitation of extension under DCs 5260 and 5261. VAOPGCPREC 9-2004 (2004). For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. The knee is considered a major joint. 38 C.F.R. § 4.45(f). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). In fact, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the veteran, and a veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a veteran for a long period of time or through a factually accurate medical history reported by a veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Board has reviewed the Veteran's VA treatment records. Such records indicate the Veteran presented with bilateral pain of the lower legs in January 2011 because his medications were not providing the desired relief. He received an assessment of moderate DJD bilaterally of the knees and ankles. In October 2011, the Veteran presented for a primary care evaluation, with pain on a scale of 8 out of 10 bilaterally of the knees and ankles. The clinician assessed moderate DJD. Upon examination of X-ray reports, the clinician diagnosed moderate DJD of the medial and lateral compartments of the left knee. The clinician also diagnosed mild DJD and lateral tilting of the patella of the right knee. As already stated, VA provided the Veteran two joint examinations, in December 2010 and January 2012, respectively. At the December 2010 examination, the Veteran reported pain, stiffness, weakness and decreased speed of joint motion in the left knee but no deformity, incoordination, episodes of dislocation or subluxation, locking, inflammation or flare-ups. The Veteran presented with normal gait, no abnormal weight bearing, loss of a bone or part thereof. The examiner found bony joint enlargement of the left knee with no bumps, crepitation, masses, clicks or snaps, grinding, instability, patellar abnormality, meniscus abnormity, abnormal tendons or bursae or other knee abnormalities. The Veteran had left knee flexion to 100 degrees with objective evidence of pain with active motion on the right side. His left knee extension was normal. The Veteran had right knee flexion to 110 degrees and normal extension. He also displayed pain upon repetition of motion. X-ray results of the left knee revealed moderate degenerative joint disease of the medial and lateral compartments. X-ray results of the right knee revealed mild degenerative joint disease and lateral tilting of the patella. The problem associated with the diagnosis, the examiner noted, was chondromalacia of the left knee. The examiner noted that the Veteran experienced mild effects of his knee disorders on his recreation, traveling and driving. The examiner also noted that the Veteran was not employed at the time of the examination but that his unemployment was not due to his disabilities. Rather, he and another employee had an argument and they were both fired. At his January 2012 VA examination, the Veteran reported pain in the left knee all of the time, on a scale of 9 out of 10 in intensity, with 10 being the worst possible pain. He reported pain in the right knee as intermittent on a scale of 7 out of 10. He reported that his knee pain is exacerbated by activities such as standing, walking and sitting but that he does not wear a knee brace, use a cane, crutches or any other assistive device. He reported that he is able to perform activities of daily living and his usual occupation is not affected. The Veteran also reported flare-ups of his right knee and due to constant pain of the left knee; he stated that during such times his activity is limited. The VA examiner found that the Veteran had right knee flexion to 90 degrees, with no objective evidence of painful motion. The Veteran had right knee extension to 0 degrees. The examiner found that the Veteran had left knee flexion to 90 degrees, with no objective evidence of painful motion. Similarly, his left knee extension was to 0 degrees. The examiner reported that during the examination the Veteran would not flex his knee beyond 5-10 degrees due to pain. The examiner observed him, however, able to sit with his knees flexed at a 90 degree angle. The Veteran was unable to perform repetitive-use testing. The examiner found tenderness or pain to palpitation for joint line or soft tissues of both knees. The Veteran exhibited normal strength in both knees. There was no evidence or history of recurrent patellar subluxation or dislocation. The Veteran also did not have any tibial and/or fibular impairment, such as "shin splints," stress fractures, or chronic exertional compartment syndrome. The Veteran did not have total knee joint replacement, arthroscopic or other knee surgery. Moreover, the Veteran did not have any scars, complications, or functional impairment of any extremity due to his knee disability. MRI findings of the left knee revealed chronic degeneration to the posterior horn of the medial meniscus. There was a subchondral cyst to the anterior portion of the medial tibial plateau. The anterior horn was intact; the lateral knee joint compartment, however, was slightly narrowed with periarticular osteophyte changes. The anterior horn was poorly visualized. There were subchondral lesions and erosion to the articulating surfaces at about the posterior lateral femoral condyle and lateral tibial plateau. There was also a tiny bone cyst adjacent to the tibiofibular articulation. The cruciate ligaments were intact. The collateral ligaments, patellar tendon and the quadriceps tendon were basically intact with no significant bony changes to the patella. There was a small knee joint effusion at the suprapatellar bursa and lateral knee joint compartment. The impression was that the Veteran's left knee had a chronic tear involving the posterior horn of the meniscus and anterior horn of the lateral meniscus and small joint effusion. MRI findings of the right knee revealed that the knee joint compartments were basically intact. The medial meniscus had a small focal tear involving the body. The lateral meniscus was basically intact. The cruciate ligament and collateral ligaments were intact. There was a .9 centimeter subchondral cyst formation at the medial aspect of the lateral tibial plateau and it showed focal extension involving the tibial spine but not at the insertion for the anterior cruciate ligament. The patellofemoral joint and the patellar tendon were both intact. There was a small amount of knee joint effusion in the suprapatellar bursa. The impression was partial tear or degeneration to the medial meniscus and prominent subchondral cyst at the medial aspect of the lateral tibial plateau with a small knee joint effusion. The examiner diagnosed the Veteran's knee disorders as degenerative joint disease bilaterally, chronic tear posterior horn medial meniscus and anterior horn of lateral meniscus and a partial tear or degeneration to the medial meniscus of the right knee. The examiner determined that the Veteran's knee conditions do not impact his ability to work. In his September 2012 substantive appeal the Veteran disagreed with the VA examiner's opinion that his meniscus impairment did not relate to his degenerative joint disease. The Veteran explained that his VA treating physician expressed to him verbally that his DJD is aggravating his meniscus. He also contended that he could not complete the range of motion test because of the pain it caused. The Board acknowledges the Veteran's challenge to the current 10 percent ratings for his right and left knee disabilities. After reviewing all of the clinical evidence and subjective complaints, however, the Board finds that the preponderance of the evidence shows that a disability evaluation in excess of 10 percent for the Veteran's degenerative joint disease of the left and right knee, respectively, chronic tear of the posterior horn medial meniscus and anterior horn of the lateral meniscus and his partial tear or degeneration to the medial meniscus of the right knee is not warranted under 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5256-5263, 5271. At its most limited, the Veteran's knees had 0 degrees extension and flexion to no less than 90 degrees, including on repetition. The VA examiners found no subluxation or lateral instability of either knee. Additionally, the examiners found no dislocated or removed semilunar cartilage. There is no lay or medical evidence to support findings of either nonunion or malunion of the tibia and fibula, or genu recurvatum. Range of motion and other pertinent test results similarly preclude any finding of ankylosis of either knee. The findings of record also do not show X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. Consequently, a rating in excess of 10 percent for the Veteran's left and right knee disabilities is not warranted. The Board recognizes that the physical examinations revealed the Veteran experiences pain and tenderness of the knees. The assigned 10 percent rating, however, compensates the Veteran for his pain and tenderness and there is no additional evidence of pain or limitation of motion rising to the next highest rating criteria. For example, at the January 2012 examination, the examiner noted that even though the Veteran would not flex his knee beyond 5-10 degrees due to pain he was able to sit with his knees flexed at a 90 degree angle. Moreover, the Veteran's flexion is not limited to 45 degrees in either knee and his extension is not limited to 10 degrees in either knee so that separate 10 percent ratings are not warranted. Moreover, in adjudicating this appeal, the Board has considered all right knee and left knee impairment in adjudicating whether separate or higher evaluations are warranted for the Veteran's right and left knee disabilities at any time during the appeal. Therefore, the current rating criteria adequately compensate the Veteran for his pain and tenderness and higher ratings are not warranted. Extraschedular and TDIU Considerations In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's disability of degenerative joint disease of the left and right knee, respectively, because pain and functional impairment are manifestations already contemplated in the rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's degenerative joint disease of the knees, chronic tear of the posterior horn medial meniscus and anterior horn of the lateral meniscus and his partial tear or degeneration to the medial meniscus of the right knee disabilities; thus, referral for consideration of extraschedular rating is not warranted. The Court has held that entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is an element of all appeals for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to TDIU is raised when a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Here there is no evidence of unemployability due to the Veteran's left and right knee disabilities as evidenced by the fact that the Veteran became unemployed due to an altercation with another employee, for which he got fired. This conclusion is also backed by the January 2012 VA examiner's assessment that the Veteran's knee conditions do not impact his ability to work. The Board has, therefore, considered the question but the record does not warrant entitlement to TDIU because the Veteran is not unemployed due to his left and right knee disabilities. ORDER A rating in excess of 10 percent for degenerative joint disease of the left knee is denied. A rating in excess of 10 percent for degenerative joint disease of the right knee is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs