Citation Nr: 1335579 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 07-33 512 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a right knee disorder. 2. Entitlement to an increased rating in excess of 10 percent for degenerative arthritis of the left knee. 3. Entitlement to an initial rating in excess of 10 percent for instability of the left knee. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from February 1969 to August 1969. This case comes to the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA). The case was remanded by the Board in May 2011 so that a Board hearing could be conducted. In December 2011, a videoconference Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. The issues were again remanded by the Board in March 2012 so that an additional VA examination could be obtained. This was accomplished and the case has been returned to the Board for further appellate consideration. FINDINGS OF FACT 1. A chronic disorder of the right knee has not been demonstrated at any time during the appeal. 2. The Veteran's left knee disorder is currently manifested by pain and limitation of flexion, at worse, 50 degrees due to pain; limitation of extension is not noted. 3. Other impairment of the left knee is manifested by 1+ medial-lateral instability, without evidence of subluxation or dislocation of the patella, which is productive of no more than slight impairment. CONCLUSIONS OF LAW 1. Service connection for a right knee disorder is not warranted. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). 2. The criteria for an increased rating in excess of 10 percent for degenerative joint disease of the left knee have not been met for any period. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code (Code) 5260 (2013). 3. The criteria for an initial rating in excess of 10 percent for instability of the left knee have not been met for any period. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Code 5257 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, 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, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between a 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, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran was advised of VA's duties to notify and assist in the development of the claims prior to the initial adjudication of the claims. April 2006, June 2006, and June 2012 letters explained the evidence necessary to substantiate the claims, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. These letters also informed the Veteran of disability rating and effective date criteria. The Veteran has had ample opportunity to respond and supplement the record. With regard to the duty to assist, the Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. The Veteran was afforded a VA medical examination, most recently pursuant to remand by the Board in August 2012. The Board finds that the opinion obtained is adequate. The opinion was provided by a qualified medical professional and were predicated on a full reading of all available records. The examiner also provided a detailed rationale for the opinion rendered. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Neither the Veteran nor the representative has challenged the adequacy of the examination obtained. 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 his opinion). Accordingly, the Board finds that VA's duty to assist, including with respect to obtaining a VA examination or opinion, has been met. 38 C.F.R. § 3.159(c)(4) (2011). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1990). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1990); 38 C.F.R. § 3.303(a). The Board has reviewed all of the evidence in the Veteran's claims file, 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). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board is required to render a finding with respect to the competency and credibility of the lay evidence of record. See Coburn v. Nicholson, 19 Vet. App. 427, 433 (2006). Competent, credible lay evidence could be, in and of itself, sufficient to establish an elemental fact necessary to support a finding of service connection. Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). As a fact finder, the Board is obligated to determine whether lay evidence is credible in and of itself. The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, but it may consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence. Buchanan v. Nicholson, 451 F. 3d 1331, 1336-1337 (Fed. Cir. 2006). Credibility is a factual determination going to the probative value of the evidence, to be made after the evidence has been admitted or deemed competent. Cartwright v. Derwinski, 2 Vet. App. 24 (1991). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses. 38 C.F.R. § 3.159 (competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); Layno, 6 Vet. App. at 469-71 (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see Barr 21 Vet. App. at 303 (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F. 3d at 1377. Also, a veteran as a layperson is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus; however, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the layman is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. See Davidson, 581 F. 3d at 1316 (recognizing that, under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition; the person is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). Right Knee Disorder The Veteran contends that service connection is warranted for a right knee disorder. In correspondence and during testimony offered before the undersigned at a videoconference hearing in December 2011, that the disability is related to the bilateral foot disability for which service connection has been established. After review of the record, the Board finds that a chronic disorder of the right knee has not been demonstrated at any time. In this regard, it is noted that the Veteran's STRs do not demonstrate a complaint or manifestation of a disability of the right knee. Post-service medical records include VA examinations in April 2001, August 2004, May 2006, January 2009, and, most recently, in August 2012. These examinations have identified various orthopedic disabilities, many of which are related to the Veteran's bilateral foot disorder. The examination reports have failed to identify a disability of the right knee. Significantly, X-ray studies, including studies performed at the time of the most recent VA examination, have consistently shown a normal right knee joint. Similarly, private treatment records, dated from 1996 to 2008, do not demonstrate a chronic disability of the Veteran's right knee. As noted, in a veteran's claim for benefits, lay evidence can be competent and sufficient to establish a diagnosis of a condition when either a layperson is competent to identify the medical condition; the layperson is reporting a contemporaneous medical diagnosis, or where lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, 492 F. 3d at 1377. Here, however, there is no clinical confirmation of any disability of the right knee. In the absence of proof of a current disability there is no valid claim of service-connection. See Brammer v. Derwinski, 3 vet. App. 223, 225 (1992). Accordingly, service connection for a right knee disability is not warranted. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for a right knee disorder, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Increased Rating Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2011). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2010). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3 (2011). The United States Court of Appeals for Veterans Claims (Court) has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to these appeals. 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) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Left Knee Service connection for degenerative joint disease of the left knee was granted by rating decision in November 2004. A 10 percent rating was awarded at that time. The 10 percent rating is now based on limitation of motion under Code 5260. By rating decision in October 2012, the RO awarded a separate 10 percent rating was awarded under Code 5257. Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 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, Diagnostic Code 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 pct and 10 pct 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. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, Diagnostic Code 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 Diagnostic Code 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. 38 C.F.R. § 4.71a. Separate disability ratings are possible for arthritis with limitation of motion under Diagnostic Codes 5003 and instability of a knee under Diagnostic Code 5257. See VAOPGCPREC 23-97. When x-ray findings of arthritis are present and a veteran's knee disability is rated under Diagnostic Code 5257, the veteran would be entitled to a separate compensable rating under Diagnostic Code 5003 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98. Diagnostic Code 5256 provides ratings for ankylosis of the knee. Favorable ankylosis of the knee, with angle in full extension, or in slight flexion between zero degrees and 10 degrees, is rated 30 percent disabling. Unfavorable ankylosis of the knee, in flexion between 10 degrees and 20 degrees, is to be rated 40 percent disabling; unfavorable ankylosis of the knee, in flexion between 20 degrees and 45 degrees, is rated 50 percent disabling; extremely be rated 60 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5257 provides ratings for other impairment of the knee that includes recurrent subluxation or lateral instability. Slight recurrent subluxation or lateral instability of the knee is rated 10 percent disabling; moderate recurrent subluxation or lateral instability of the knee is rated 20 percent disabling; and severe recurrent subluxation or lateral instability of the knee is rated 30 percent disabling. 38 C.F.R. § 4.71a. Separate disability ratings are possible for arthritis with limitation of motion under Diagnostic Codes 5003 and instability of a knee under Diagnostic Code 5257. See VAOPGCPREC 23-97. When x-ray findings of arthritis are present and a veteran's knee disability is rated under Diagnostic Code 5257, the veteran would be entitled to a separate compensable rating under Diagnostic Code 5003 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98. Diagnostic Code 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a. Diagnostic Code 5259 provides a 10 percent rating for removal of semilunar cartilage that is symptomatic. 38 C.F.R. § 4.71a. Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 60 degrees is rated noncompensable (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. § 4.71a. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint). Diagnostic Code 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 5 degrees is rated noncompensable (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. 38 C.F.R. § 4.71a. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint). Diagnostic Code 5262 provides ratings based on impairment of the tibia and fibula. Malunion of the tibia and fibula with slight knee or ankle disability is rated 10 percent disabling; malunion of the tibia and fibula with moderate knee or ankle disability is rated 20 percent disabling; and malunion of the tibia and fibula with marked knee or ankle disability is rated 30 percent disabling. Nonunion of the tibia and fibula with loose motion, requiring a brace, is rated 40 percent disabling. 38 C.F.R. § 4.71a. An examination was conducted by VA in May 2006. At that time, the Veteran complained of constant pain that he described as being burning, sharp, aching, and cramping in nature. His pain level was described as 10. On examination, the range of motion of the left knee was described as from 0 degrees extension to 110 degrees flexion. The left knee showed signs of popping and crepitus. Joint function was additionally limited by repetitive use, pain, fatigue, and lack of endurance, with pain having the major functional impact. There were no further limitations with weakness and incoordination. There was no further degree limitation of the knee. Stability testing of the ligaments of the left knee, anterior and posterior cruciate, medial and collateral ligaments, and medal and lateral meniscus tests were normal. The diagnosis was degenerative joint disease of the left knee. An examination was conducted by VA in January 2009. At that time, range of motion of the left knee was reported to be from 0 degrees extension to 135 degrees flexion. There was no objective evidence of pain on active motion of the left knee. There was objective evidence of pain following repetitive motion, but no additional limitations after three repetitions of range of motion. There was no joint ankylosis. X-rays studies of the left knee showed minimal marginal spurring involving the left patellofemoral joint. On August 2012 VA examination, the diagnosis was degenerative joint disease of the left knee with mild laxity. At that time, the Veteran complained of popping and creaking of his knee joint and that knee pain caused him to have to sit. He felt that his left knee was going to "give away" more than once while he was walking. He reported flare-ups that he described as being pain on walking or sitting for a length of time and that on walking any length, he felt like he was almost falling. Range of motion of the left knee was from 0 degrees extension to 90 degrees flexion. There was objective evidence of painful motion at 50 degrees. There was no additional limitation of ranges of motion with repeated use. He did have functional loss of the left knee in that there was weakened movement; pain on movement; and interference with sitting, standing and weight-bearing. There was no tenderness or pain to palpation of the joint line or soft tissues of the knee. Muscle strength was normal. There was no anterior instability or posterior instability, but there was medial-lateral instability that was rated at 1+. There was no history of recurrent patellar subluxation or dislocation. X-ray studies showed moderate degenerative joint disease suggested by mild narrowing of the joint space in the medial and lateral compartment as well as mild hypertrophic changes along the joint margins. The degenerative joint disease of the left knee is primarily manifested by pain and limitation of motion. The motion was recorded as, at worse, from 0 degrees extension to 90 degrees flexion. Even taking pain of the knee joint on movement into consideration, flexion is at worse limited to 50 degrees of movement. Limitation to this degree does not provide a basis for a rating in excess of the current 10 percent evaluation for left knee arthritis. Under these circumstances, an increased rating is not warranted. Regarding other impairment of the left knee, examination shows that he has 1+ medial-lateral instability, without evidence of subluxation or dislocation of the patella. There was no identified anterior instability or posterior instability. No other joint instability has been identified in the record. For a rating in excess of the 10 percent awarded for other impairment, moderate disability would have to be demonstrated. In this case, the Board does find that 1+ instability without any other impairment is productive of no more than slight disability. As such, a separate 10 percent rating is not warranted. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for increased rating for left knee, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. The Board also has considered whether referral for extraschedular consideration is warranted. An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2009); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the veteran's disability picture requires the assignment of an extraschedular rating. In this case, comparing the Veteran's disability level and symptomatology to the rating schedule, the degree of disability throughout the appeal period under consideration is contemplated by the rating schedule. The Veteran's left knee limitation of extension rated as part of the arthritis directly corresponds to the schedular criteria for the 10 percent evaluation for limitation of knee extension (Code 5260), which also incorporates various orthopedic factors that limit motion or function of the knee. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca. The slight left knee impairment caused by instability (Code 5257) that was noted on the examination report is specifically contemplated in the schedular rating criteria, and is the basis for a separate schedular rating that recognized functional impairment distinct from the service-connected arthritis with limitation of motion. For this reason, the Board finds that the assigned schedular ratings are adequate to rate the Veteran's left knee disabilities, and no referral for an extraschedular rating is required. Finally, the record shows that, while the Veteran is retired, he continues to work part time at a casino. As such a total rating based on individual unemployability (TDIU) is not for consideration. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER Service connection for a right knee disorder is denied. An increased rating in excess of 10 percent for degenerative arthritis of the left knee is denied. An initial rating in excess of 10 percent for instability of the left knee is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs