Citation Nr: 1335660 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 08-28 672 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE 1. Entitlement to an initial evaluation in excess of 10 percent for limitation of motion of the right knee due to service-connected grade 1/3 medial collateral ligament tear of the right knee and torn medial meniscus of the right knee, previously rated as right patellofemoral degenerative changes. 2. Entitlement to an initial evaluation in excess of 10 percent for instability of the right knee due to service- connected grade 1/3 medial collateral ligament tear of the right knee and torn medial meniscus of the right knee, previously rated as right patellofemoral degenerative changes. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran had active military service from November 1968 to November 1971 and from May1973 to November 1990. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Indianapolis, Indiana. In March 2009, the Veteran appeared at a hearing before a Decision Review Officer. A transcript of the hearing is in the record. In December 2011, the Board issued a decision which, in pertinent part, denied the first issue on appeal. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in August 2012, the Court granted a Joint Motion for Remand and vacated that part of the Board's decision for compliance with the instructions in the Joint Motion. The Board notes that two additional issues were before the Board in December 2011: an initial evaluation in excess of 10 percent for a left knee disability, and an increased rating for a right shoulder disability, evaluated at 10 percent from October 4, 2006 through April 14, 2009, and at 20 percent from April 15, 2009. Those issues were also appealed to the Court, but were withdrawn upon the Court's Order remanding the issue of a higher evaluation for the right knee disability to the Board. Accordingly, the left knee and right shoulder issues are no longer in appellate status before the Board. The United States Court of Appeals for Veterans Claims (Court) has indicated that a distinction must be made between a Veteran's dissatisfaction with an initial rating assigned following a grant of service connection (so-called "original ratings"), and dissatisfaction with determinations on later filed claims for increased ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The issues of entitlement to ratings in excess of 10 percent for both limitation of motion and right knee instability caused by the grade 1 medial collateral ligament tear of the right knee and torn medial meniscus of the right knee currently before the Board were placed in appellate status by a notice of disagreement expressing dissatisfaction with original rating decision, the Board has characterized those two rating issues on appeal as claims for initial evaluations of an original award. Analysis of the issues, therefore, requires consideration of the rating to be assigned effective from the date of award of service connection for the claims. In May 2013, the Board remanded the case to the RO for additional development. As the requested development has been completed, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). In June 2013, the RO issued a rating decision granting service connection for right knee instability. The Board notes that the Veteran had previously been rated for right patellofemoral changes for limitation of motion but as a result of a May 2013 VA examination, the RO now described the Veteran's disability as a grade 1 medial collateral ligament tear of the right knee and torn medial meniscus of the right knee. This disability resulted in awards for both limitation of function of the right knee under Diagnostic Code 5260 and instability of the right knee under Diagnostic Code 5257. The RO awarded 10 percent for instability and as the Veteran has not expressed satisfaction with the separate awards for the right knee disability under Diagnostic Codes 5260 and 5257, the Veteran's claims have been returned to the Board for appellate review. AB v. Brown, 6 Vet. App. 35, 38 (1993). FINDINGS OF FACT 1. Throughout the rating period on appeal, the Veteran's service-connected right grade 1/3 medial collateral ligament tear of the right knee and torn medial meniscus of the right knee disability has been manifested by pain on active motion with flexion limited to 83 degrees upon repetitive motion, with no additional functional loss due to pain, fatigue, weakness, incoordination, or lack of endurance and normal extension. 2. Throughout the rating period on appeal, the Veteran's service-connected grade 1/3 medial collateral ligament tear of the right knee and torn medial meniscus of the right knee is manifested by slight lateral instability. CONCLUSION OF LAW 1. The criteria for an initial rating in excess of 10 percent for limitation of flexion for the Veteran's service-connected grade 1/3 medial collateral ligament tear of the right knee and torn medial meniscus of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260, 5261 (2013). 2. The criteria for an initial rating in excess of 10 percent for instability due to the Veteran's service-connected grade 1/3 medial collateral ligament tear of the right knee and torn medial meniscus of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5257 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claims. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Where, as here, the appeal stems from notice of disagreement with the award of an initial disability rating following the grant of service connection, further VCAA notice is not required. 38 C.F.R. 3.159(b)(3). Rather, the Veteran's appeal as to the initial rating assignment triggers VA statutory duties under 38 U.S.C.A. § 5104 and § 7105. In this regard, a statement of the case was issued in September 2008 which set forth the diagnostic code criteria to be satisfied to warrant a higher initial rating for the right knee disabilities based upon limitation of motion and instability. Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim. The RO has obtained service treatment records, VA records, records from private medical caregivers, and afforded the Veteran VA examinations in May 2007, April 2009, and June 2013. The reports of the VA examinations included a review of the Veteran's medical history, including his service treatment records, an interview and an examination of the Veteran, as well as sufficient findings to rate disabilities. Therefore, the Board concludes that the VA examinations are adequate. 38 C.F.R. § 4.2; see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Veteran had a hearing before a Decision Review Officer (DRO) in March 2009. The provisions of 38 C.F.R. § 3.103(c)(2) require that the decision review officer (DRO) who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this hearing, the DRO identified the issue as an increased evaluation for the right knee. The hearing also included argument and evidence to support the Veteran's contention that his right knee warrants a higher evaluation. The representative asked questions to ascertain whether he sought treatment only at VA or also at a private facility. The DRO and the representative both asked additional questions to determine all of the knee symptoms that the Veteran experienced. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for a higher evaluation for his right knee disability. Therefore, the Board finds that the DRO complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) by identifying the issue, and suggesting or soliciting evidence as to the missing elements of the claim for a higher rating by asking questions that might afford him a higher or additional rating. To the extent the DRO did not expressly request evidence that may have been overlooked, such error is harmless as both the Veteran and representative also demonstrated actual knowledge of what was needed to prove the claim. As the Veteran has not identified any additional evidence pertinent to the claims and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. Rating Principles A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155. 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Rating factors for a disability of the musculoskeletal system include functional loss due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40; see DeLuca v. Brown, 8 Vet. App. 202, 206 -07 (1995). With respect to joints, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; see DeLuca, 8 Vet. App. at 206-07. Also with arthritis or periarticular pathology, painful motion is factor to be considered. 38 C.F.R. § 4.59. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Separate ratings for a knee disability may be assigned for limitation of flexion and for extension. VAOPGCPREC 9-04 (September 17, 2004). A separate rating may also be assigned for instability of the knee under Diagnostic Code 5257. Esteban v. Brown, 6 Vet. App. 259, 261 (1994) (laxity and loss of motion are separate and distinct disabilities). Limitation of knee flexion under Diagnostic Code 5260 is rated 10 percent with flexion limited to 45 degrees. Flexion limited to 30 degrees is rated 20 percent, and flexion limited to 15 degrees is rated 30 percent, the maximum schedular rating under that Diagnostic Code. Limitation of knee extension under Diagnostic Code 5261 is rated noncompensable or zero percent with extension limited to 5 degrees. Extension limited to 10 degrees is rated 10 percent. Extension limited to 15 degrees is rated 20 percent. Higher ratings are afforded under this Diagnostic Code for more severe limitation of extension. Subluxation or instability of the knee under Diagnostic Code 5257 is rated 10 percent for slight recurrent subluxation or lateral instability. Moderate recurrent subluxation or lateral instability is rated 20 percent. Severe recurrent subluxation or lateral instability is rated 30 percent. Words such as "mild", "slight", "moderate", "marked", and "severe" are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Normal range of knee motion is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Facts The Veteran underwent an examination in May 2007. The Veteran complained of chronic bilateral knee pain but the right knee was worse than the left. The pain is over the medial aspect of the knee. He has occasional swelling of the knee. He described problems going up and down stairs. He also reported that in recent years, he had had a "great deal of problems bending and squatting, especially on the right knee. The left knee has only minimal symptoms." Pain is usually 4/10 but increases to 6/10 with flare-ups. He reported approximately 50 - 100 flare-ups of knee pain during the past 12 months, some lasting as long as two days. He applies heat and liniment and stays off his feet. The pain then usually dissipates on its own. He has not had any injections and surgery. He tried a knee sleeve but it made him uncomfortable. Upon clinical examination, it was noted that the Veteran had a normal gait and did not limp. He could walk on his toes and heels. Straight leg raising sign was absent. There was no fluid and no thickening. There was pain over the medial and anterior aspect of the right knee with deep palpation along the joint line. Ligamentous examination of the right knee revealed that the medial collateral ligament had a one degree laxity to it. Hyperflexion and rotational stress pulling on the knee reproduced the pain. Anterior and posterior drawer signs were negative. His range of motion of the right knee was 0 to 130 degrees. On repetitive motion of the knee, "he lost a little bit of extension" but he could do 10 repetitions. X-rays were examined of the right knee which displayed what the examiner determined was moderate to severe loss of the medial joint space on the right side. The report itself stated there was considerable loss of joint space medially on the right knee and an osteophyte formation was seen. The examiner did not offer any diagnosis. The Veteran also underwent an April 2009 VA examination. The report reflects that the Veteran reported giving way, instability, pain, stiffness, weakness of the knee, and decreased speed of joint motion. He reported daily or more often locking episodes. He denied incoordination, subluxation, or effusion. He also reported severe flare-ups occurring weekly and lasting from three to seven days. Precipitating factors include increased or unusual physical activities and inclimate weather. Rest and pain medication alleviated the symptoms. Nevertheless, the Veteran stated his knees hurt him every day. He was able to walk a quarter of a mile but unable to stand for more than a few minutes. He used a brace intermittently but frequently. The Veteran had a normal gait. The examiner noted increased wear on the outside edge of the shoe heels. The examiner found edema, tenderness, pain at rest, guarding of movement, and clicks or snaps. There was no grinding, instability, patellar abnormality, or meniscus abnormality. There was objective evidence of pain with active motion. Right flexion was to 92 degrees, and extension was normal (0 degrees). After repetitive motion, right flexion was to 83 degrees and extension was normal. There was no joint ankylosis. The examiner noted there were no effects on daily activities of shopping, feeding, bathing, dressing, toileting, grooming or driving. There was a mild effect on chores, recreation, and traveling, a moderate effect on exercise, and a severe effect on sports. X-ray of the right knee showed medial compartment narrowing of bone-on-bone articulation, sclerosis and osteophytes, mild genu varus deformity, and no patellar subluxation or effusion. Finally, the examiner noted the Veteran worked full time as a machine operator or in assembly although he currently was laid off as the factory closed. The Veteran received a third VA examination in June 2013. The diagnosis was a grade 1/3 medial collateral ligament tear and torn medial meniscus of the right knee. He stated his service, including that as a paratrooper resulted in multiple injuries to his right knee never severe enough to seek medical attention in service but now resulted in chronic pain, an inability to bend the knee, and difficulty in walking. He is unable to run due to the pain. There was noted instability of the right knee. Because of a severe twist in the knee, a moderate amount of varus stress reproduced pain accompanied by some mild swelling. There were no flare-ups of the instability. Right knee flexion ended at 110 degrees with painful motion beginning at 55 degrees. Extension was to zero even after repetition. After repetitive testing, the Veteran's right knee flexion was 100 degrees. There was no additional impairment of the range of motion after repetition. Functional loss included less movement than normal, weakened movement, excess fatigability, pain on movement, and instability of station. There was no swelling, deformity, or atrophy of disuse. There was no interference with sitting, standing, and weight bearing. The Veteran had tenderness or pain to palpitation on the joint line or soft tissues of the right knee. Muscle strength was 5/5 for both flexion and extension. The Lachman (anterior instability) and the posterior drawer tests were normal. The Veteran had objective evidence of grade 1 + (0-5 millimeters) medial-lateral instability. There was no evidence or history of recurrent patellar subluxation or dislocation. The examiner found evidence of a right meniscus tear which resulted in frequent episodes of pain and joint effusion but no evidence of frequent episodes of locking. The Veteran has not undergone meniscus surgery or a total knee replacement. The examiner concluded that the knee condition did not have any impact on his work. The examiner also concluded that the claimed condition was at least as likely as not incurred in or caused by service. The examiner stated the Veteran always had significant findings of internal derangement of the right knee with instability of the medial area. A probable tear of the medial meniscus was noted on exam along with an old medial collateral ligament tear. It was opined there was a direct relationship between these findings and the service-connected injury. It was stated that the torn medial meniscus was in need of surgical management, and that the medial collateral ligament tear should be treated conservatively. In an addendum dated in July 1013, the examiner explained that by definition, in a grade one tear of medial collateral ligament, all fibers are intact but stretched (sprain). A grade 2 tear has a portion of the fibers that are torn but the remainder is intact. In grade 3, all ligament fibers have been torn. Laxity of the medial collateral ligament was present on examination of the Veteran due to the fact that there was severe narrowing of the medial joint of the knee. The examiner concluded that because of this, the medial collateral ligament fibers, although intact, demonstrated lengthening which indicates laxity of the ligament. As to the Veteran's right knee instability, it was concluded that he has severe tricompartmental degenerative joint disease. It was opined that it was more likely that the medial meniscus has a severe degenerative tear secondary to the arthritic condition (internal derangement). Instability was demonstrated on examination when torque was applied resulting in the meniscus subluxating. This reportedly created clinical instability along with the medial collateral ligament laxity. Analysis As noted earlier, the Veteran was originally service connected for right knee patellofemoral degenerative changes, but based upon the findings on the June 2013 VA examination, the service-connected disability is now titled a grade 1/3 medial collateral ligament tear of the right knee and torn medial meniscus of the right knee. The Veteran has been separately rated for limitation of function (right knee function limitation) and instability (right knee instability). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the U.S. Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, 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 each claim. The Board recognizes that the evidence supporting his claim for a higher rating includes his statements as to the severity of his service-connected disabilities. The Board has considered his lay statements as to his knee disabilities. In evaluating a claim for an increased schedular disability rating, however, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. Massey v. Brown, 7 Vet. App. 204, 208 (1994). The Board is not free to ignore VA's duly promulgated regulations, which include the Rating Schedule. Franklin v. Brown, 5 Vet. App. 190, 193 (1993). The Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Furthermore, in rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. That involves specialized knowledge or training. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. No factual foundation has been established that the Veteran is otherwise qualified through specialized education, training, or experience to offer a medical diagnosis or opinion. Such competent evidence concerning the nature and extent of the Veteran's right knee function limitation or right knee instability disability has been provided by the VA examiners, and the VA medical personnel who have examined him during the current appeal period and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which the disabilities are evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective testimony of increased symptomatology. The Veteran's right knee limitation of motion disability does not warrant a rating higher than 10 percent at any time during the rating period for consideration on appeal. The schedular criteria for a higher evaluation contemplate knee flexion limited to 30 degrees or less. Even with consideration of pain and repetitive use, as demonstrated on VA examinations, the right knee demonstrated at worst flexion to 83 degrees. Thus, the Board's finding applies even after considering functional loss due to pain, weakness, excess fatigability, swelling, deformity, atrophy, painful movement, and repetitive motion. See 38 C.F.R. §§ 4.40, 4.45, 4.59. While the Veteran did experience pain with flexion, the pain does not raise to the level of functional loss equating to flexion limited to 30 degrees. See Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011) (pain must affect some aspect of normal movement in order to constitute functional loss under 38 C.F.R. § 4.40). To this extent, the Board places greater weight on the objective findings of the VA examination, with consideration of pain, than the Veteran's subjective complaints. Extension to 0 degrees in both knees does not more nearly approximate or equate to extension limited to 10 degrees. Therefore, a 10 percent rating for limitation of extension under Diagnostic Code 5261 is not warranted. There is no indication there would be additional functional loss due to pain, weakness, excess fatigability, swelling, deformity, atrophy, or painful movement, and repetitive motion. 38 C.F.R. §§ 4.40, 4.45, 4.59. As noted, the Court in August 2012 granted the Joint Motion for Remand directing the Board to comply with the instructions in the motion. The Court Order and Joint Motion noted the prior Board decision did not adequately discuss the evidence of the Veteran's right knee instability. The Board therefore remanded this matter in May 2013 to provide the Veteran a VA examination to explain the clinical significance of the earlier findings of first degree laxity of the medial collateral ligament. As noted above, in the June 2013 VA examination, the examiner determined that the Veteran had a Grade 1/3 medial collateral ligament laxity, and the May 2007 VA examiner found a first degree laxity to the medial collateral ligament. As a result, the RO issued a rating decision in August 2013 granting service connection for the right knee laxity Instability of the knee and limitation of motion of the knee are two separate disabilities. As such, it is permissible to award separate ratings under both a range of motion code and an instability code without violating the prohibition on pyramiding. See VAOPGCPREC 23-97. A separate rating is warranted as laxity and loss of motion are separate and distinct disabilities. Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Diagnostic Code 5257 is predicated on instability, rather than limitation of motion, therefore, an analysis under DeLuca does not apply. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). Reconciling the evidence into a consistent disability picture that accurately reflects the disability, the laxity of the Veteran's right knee, resulting with a few objective signs of slight laxity is analogous to slight instability of the knee under Diagnostic Code 5257 and warrants a 10 percent rating. The instability however does not more nearly approximate or equate to moderate recurrent subluxation or moderate lateral instability for the next higher rating, 20 percent, under Diagnostic Code 5257. Both the May 2007 VA examination and the June 2103 VA examination found a grade 1 laxity and the 2009 VA examiner did not find any laxity. There is evidence of a meniscal tear. Diagnostic Codes 5258 and DC 5259 address symptomatic cartilage disabilities. The rating criteria differ only in that semilunar cartilage is dislocated in Diagnostic Code 5258 and under Diagnostic Code 5259, a 10 percent rating is assigned for surgically removal of a semilunar cartilage that is symptomatic. The Veteran has not had surgery for removal of a semilunar cartilage. To the extent the tears have created symptoms that equate to symptomatic dislocated semilunar cartilage, Diagnostic Code 5258 rates the disability based upon pain, effusion, and locking. Evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). There is no evidence of any of the Veteran's current symptoms are not already rated under Diagnostic Code 5257 or 5260. To assess his right meniscus knee disability under Diagnostic Code 5258 or 5259 with the orthopedic manifestations already evaluated by the current limitation of function rating and the instability rating would violate the rule against pyramiding. Cullen v. Shinseki, 24 Vet. App. 74 (2010) (within a particular diagnostic code, a claimant is not entitled to more than one disability rating for a single disability unless the regulation expressly provides otherwise). Stated another way, the Veteran's symptoms of painful motion, loss of motion, effusion, instability, and other symptoms are ratable under the other Diagnostic Codes and 38 C.F.R. § 4.59 and a separate rating for a symptomatic meniscus would be duplicative or overlapping the other ratings, which is not permissible under 38 C.F.R. § 4.14. In sum, throughout the rating period on appeal, the criterion for a higher rating based on limitation of flexion under Diagnostic Code 5260, in excess of 10 percent for the right knee, have not been met, nor does the disability picture more nearly approximate the schedular criteria for a higher rating based upon instability under Diagnostic Code 5257, in excess of 10 percent, for the right knee. Further, there is no evidence in the record that establishes a limitation of extension of the right knee warranting a separate rating under Diagnostic Codes 5261. Finally, there is no evidence of other ratable pathology such as ankylosis, acquired or traumatic genu recurvatum, tibia and fibula impairment (malunion or nonunion) under Diagnostic Codes 5256, 5262, and 5263. The Board has thus considered the application of other diagnostic codes in order to afford the Veteran a higher rating but does not find any raised by the evidence. For reasons expressed, the current evaluations more accurately reflect the actual degree of impairment shown for the right knee for each disability since the respective effective dates for the awards of service connection, and there is no basis for staged ratings. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. The preponderance of the evidence, however, is against the claims for a rating higher than 10 percent for the limitation of function for the right knee and 10 percent for instability of the right knee and that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002). Extraschedular Consideration Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for such a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe a disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service- connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). In this case there are no exceptional or unusual factors with regard to the Veteran's disabilities. The Board acknowledges that the Veteran has testified it has affected him in the performance of his work as a machine operator or assembly work in a factory. To this extent, it affected his employment, but he is apparently able to perform the job duties as he worked in this area until laid off because the plant closed. As to other aspects of limited function, the Veteran reported pain when using stairs or bending, squatting, and unusual physical activities. As seen in the analysis above, the Board has considered these aspects of the Veteran's disabilities, and finds that the rating schedule adequately provides for ratings based on these symptoms or impairments. The Veteran also does not offer any explanation or argument to explain how the ratings assigned are inadequate to describe the symptoms and their effect upon his daily life. The evidence before the Board also does not establish any functional impairment that would not be covered or contemplated by the current schedular rating criteria. In short, his disability picture is contemplated by the rating schedule and the application of 38 C.F.R. §§ 4.120, 4.123, 4.124, and the assigned schedular evaluations are, therefore, adequate. Consequently, referral to the Under Secretary for Benefits or the Director, Compensation and Pension Service, under 38 C.F.R. § 3.321 is not warranted. As the rating schedule is adequate to rate the Veteran's right knee disabilities, referral for extraschedular consideration is not warranted. Total Rating for Compensation Based on Individual Unemployability (TDIU) A claim for a total rating is inferred in a claim for increase where the Veteran claims his disability affects his employability or such a claim is reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the evidence suggests that the Veteran's disabilities may have affected his employment in the performance of his duties, but there is no evidence to suggest the right knee disabilities prevented the Veteran from obtaining and maintaining gainful employment. Further, the severity of his disabilities is addressed in the assigned ratings, as discussed above. Finally, the Veteran does not contend, nor does the evidence reasonably raise a claim for total disability rating for compensation based on individual unemployability. Therefore, in the circumstances of this case, the Board declines to take jurisdiction over a TDIU claim. ORDER Entitlement to an initial evaluation in excess of 10 percent for limitation of motion of the right knee due to service-connected grade 1/3 medial collateral ligament tear of the right knee and torn medial meniscus of the right knee, previously rated as right patellofemoral degenerative changes is denied. Entitlement to an initial evaluation in excess of 10 percent for instability of the right knee due to a service- connected grade 1/3 medial collateral ligament tear of the right knee and torn medial meniscus of the right knee, previously rated as right patellofemoral degenerative changes is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs