Citation Nr: 1342811 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 07-19 545 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial increased rating for traumatic synovitis of the right ankle, rated 20 percent from April 2, 2003, to July 6, 2005; 10 percent from July 7, 2005 to February 13, 2007; and 20 percent thereafter. 2. Entitlement to an increased rating for degenerative joint disease of the right knee, currently rated 10 percent disabling. REPRESENTATION Appellant represented by: Texas Veterans Commission 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 November 1987 to July 1991 and from May 1999 to April 2003. This case comes to the Board of Veterans' Appeals (Board) on appeal of October 2005 and March 2009 rating decisions of the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). In July 2013, a videoconference Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. FINDINGS OF FACT 1. From the effective date of service connection until July 6, 2005, the Veteran's right ankle disability was manifested by marked limitation of motion, without evidence of ankylosis. 2. Between July 7, 2005, and February 13, 2007, the Veteran's right ankle disability was primarily manifested by dorsiflexion from 0 to 20 degrees, with mild pain; plantar flexion from 0 to 70 degrees, with mild pain; and mild lateral laxity on manipulation; which was productive of no more than moderate impairment. 3. From February 14, 2007, the Veteran's right ankle disability was manifested by marked limitation of motion, without evidence of ankylosis. 4. Throughout the appeal, degenerative joint disease of the right knee has been primarily manifested by pain and limitation of flexion to, at worse, 120 degrees, with full extension. CONCLUSIONS OF LAW 1. The criteria for initial ratings in excess of 20 percent from April 2, 2003, to July 6, 2005; 10 percent from July 7, 2005 to February 13, 2007; and 20 percent thereafter for traumatic synovitis of the right ankle have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code (Code) 5010-5271 (2013). 2. The criteria for an increased rating in excess of 10 percent for degenerative joint disease of the right knee have not been met for any period of the appeal. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Code 5260 (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). Regarding the claim for higher initial ratings for synovitis of the right ankle, as the rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess 19 Vet. App. at 490. In a claim for increase such as is involved with the rating for the degenerative joint disease of the right knee, 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. August 2006 and February 2009 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 VA medical examinations, most recently in August 2012. The Board finds that the opinions obtained are adequate. The opinions were provided by qualified medical professionals and were predicated on a full reading of all available records. The examiners also provided a detailed rationale for the opinions 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 examinations 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) (2013). 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 (2013). 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. 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, 4.3 (2013). In this case, the Board has considered the entire period of the right ankle initial rating claim from April 2003 to see if the evidence warrants the assignment of different ratings for different periods of time during these claims, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The United States Court of Appeals for Veterans Claims (Court) has also 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 claims. More generally, disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 (2013). With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45 (2013). In addition, 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 (2013). This regulation also provides that the intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and that crepitation should be noted carefully as points of contact which are diseased. Thus, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The Court has also held that VA's regulations pertaining to whether a compensable rating is warranted for pain (as shown by adequate pathology and evidenced by the visible behavior in undertaking motion), 38 C.F.R. §§ 4.40 and 4.59, apply regardless of whether the painful motion is related to arthritis. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Right Ankle Disability Service connection for traumatic synovitis of the right ankle was granted by the RO in an October 2005 rating decision. A 20 percent rating was assigned from the effective date of service connection in April 2003 until July 6, 2005, following which the rating was reduced to 10 percent. The rating was increased to 20 percent by rating decision in November 2007, effective February 14, 2007. Ratings were assigned under the provisions of Codes 5010, for traumatic arthritis, and 5271, for limitation of motion of the ankle. Diagnostic Code 5010 provides that arthritis due to trauma that is substantiated by X-ray findings is to be rated as degenerative arthritis. 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. Normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees, and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5270 provides ratings for ankylosis of the ankle. Ankylosis of the ankle in planter flexion less than 30 degrees is to be rated 20 percent disabling; ankylosis of the ankle in planter flexion between 30 degrees and 40 degrees, or in dorsiflexion between 0 degrees and 10 degrees, is to be rated 30 percent disabling; ankylosis of the ankle in planter flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity, is to be rated 40 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5271 provides ratings based on limitation of extension of the ankle. Moderate limitation of motion of the ankle is rated as 10 percent disabling; and marked limitation of motion of the ankle is rated as 20 percent disabling. 38 C.F.R. § 4.71a. Regarding those ratings for the Veteran's right ankle that the Veteran claims should be in excess of 20 percent, it is noted that, for such a rating, ankylosis of the right ankle would have to be demonstrated. By definition, ankylosis contemplates a total absence of joint mobility. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) and Lewis v. Derwinski, 3 Vet. App. 259 (1992) (both indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable). The Board has reviewed the extensive evidence of record, including VA examinations in May 2004, July 2007, and August 2012. At no time during the appeal period has ankylosis of the right ankle been demonstrated. As such, there is no basis for a schedular rating in excess of 20 percent, either from April 2003 to July 2005, or from February 2007. As noted, the Veteran's right ankle disability was initially awarded a 20 percent rating, then reduced, based upon a VA examination on July 7, 2005. The initial rating was based upon an examination dated in May 2004. At that time, active and passive range of motion were right ankle dorsiflexion limited to 5 degrees and plantar flexion limited to 20 degrees. There was 2+ laxity involving the right ankle. The Veteran had pain in the right ankle beginning at 6 degrees of dorsiflexion and pain at 22 degrees of plantar flexion. On acute flare-ups there was 50 percent less range of motion of the right ankle. The pain was visibly manifested in the right ankle on motion. There was significant fatigability of the right ankle on repetitive motion. Motion decreased after five repetitions. Dorsiflexion was down to 2 degrees and plantar flexion was decreased to 5 degrees. The pain had a major functional impact, which was described as severe. He also had lack of endurance and chronic fatigue of the right ankle with repetitive motion. There was also a gait abnormality because of the recurrent pain in the right ankle and also because of instability of the right ankle. There was also exquisite pain to palpation involving the medial aspect of the right ankle and also involving the lateral aspect of the right ankle. The diagnosis was traumatic degenerative joint disease involving the right ankle associated with tear of the anterior tibial/fibular tendon of the right ankle. Regarding the rating of the Veteran's right ankle from July 7, 2005, until February 13, 2007, it is noted that an examination was conducted by VA on July 7, 2005. At that time, the Veteran complained of having recurrent right ankle pain and stated that the disability had progressively worsened. He stated that he had intermittent flare-ups of sharp pain that was severe in intensity, occurring on a daily basis depending on activities. He claimed that the pain involved the lateral aspect of the right ankle, precipitated by prolonged walking or standing. It was alleviated by rest, taking the medication Naprosyn, or elevating the leg. The Veteran stated that there was associated swelling, but he denied warmth, redness, or giving way. The right ankle locked four to five times per week when he was on his feet for a prolonged period, or when sitting for a prolonged period. He also stated that he had fatigability and lack of endurance. He denied use of an ankle brace, a cane or crutches. On examination of the right ankle, there was mild swelling along the lateral aspect, no tenderness, and no erythema. Range of motion was dorsiflexion from 0 to 20 degrees, with mild pain elicited at 20 degrees. With repetitive dorsiflexion, there was no limitation noted. Plantar flexion was from 0 to 70 degrees, with mild pain elicited at 70 degrees. With repetitive plantar flexion, there was no limitation noted. During flare-ups, it was estimated that there was probably minimal limitation of motion secondary to pain, but that this could only be estimated as he was not having an acute flare-up at this time. It was also noted that there was mild lateral laxity on manipulation. The diagnosis was right ankle injury with mild lateral laxity. The examination report from the July 2005 VA examination clearly shows improvement in the Veteran's right ankle disability over that demonstrated in the report dated in May 2004 upon which the initial 20 percent rating was based. In July 2005, the Veteran's range of motion was not shown to be diminished, either actively, passively, or after repetitive movements, although plantar flexion was apparently greater than normal. While the Veteran continued to manifest laxity of the joint, this was also shown to have been improved, from "2+" to "mild." After consideration of the evidence of record, the Veteran's right ankle disability is not shown to be productive of more than moderate impairment on July 7, 2005. As such, a rating in excess of 10 percent prior to February 14, 2007, when a 20 percent was again assigned, is not warranted. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claims for increased ratings for a right ankle disability, 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. Right Knee Disability Service connection for degenerative joint disease of the right knee was granted by the RO in a November 2007 rating decision. A 10 percent initial disability rating was awarded under the provisions of Code 5260 from the date of claim in July 2004. The Veteran did not appeal the initial rating, but, in January 2009, requested an increased rating for the disability, which, by rating decision in March 2009, was continued at 10 percent under the same Code. It is noted that, by rating decision dated in October 2009, the Veteran has awarded a separate 10 percent rating for instability of the right knee under Code 5257, which is not part of the current appeal. 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 unfavorable ankylosis, in flexion at an angle of 45 degrees or more is to be rated 60 percent disabling. 38 C.F.R. § 4.71a. 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 March 2009. At that time, the Veteran complained of pain, weakness, stiffness, fatigability, and lack of endurance of the right knee. He took the medication Naprosyn for this disability. He described flare-ups from walking on a hard surface, kneeling or squatting, as well as from cold. This was caused by impact to the knee or cold weather and lasted 24 hours. He used a knee wrap to aid in ambulation. He had undergone his second surgery on the knee in November 2008. He had not suffered from any episodes of dislocation, or suffered from any abnormal movements. Range of motion of the right knee was from 0 to 135 degrees, with pain beginning at 120 degrees flexion and ending at 135 degrees flexion. There was no pain noted on extension. Following repetitive range of motion, there was no pain, fatigue, weakness, incoordination, but there was lack of endurance. There was painful motion, edema, and tenderness, but no effusion, instability, or weakness. There was abnormal movement and guarding of movement. The diagnosis was degenerative joint disease of the right knee, status post meniscus surgery times two. On June 2010 VA examination, the Veteran reported being able to stand for 15 to 30 minutes, but was unable to walk more than a few yards. He used a brace as an assistive aid. Examination showed crepitus, tenderness, and pain on rest. Active range of motion was from 0 degrees extension to 135 degrees flexion. There was objective evidence of pain following repetitive motion, but no additional limitations after three repetitions. The diagnosis was degenerative joint disease, meniscal tears, and anterior cruciate ligament strain of the right knee. On VA examination in August 2011, range of motion of the right knee was shown to be from 0 degrees extension to 120 degrees flexion, with no additional loss of range of motion after three repetitions. Pain was noted to be present, but there was no evidence of fatigue, weakness, lack of endurance, or incoordination. The Veteran's right knee disability has, throughout the appeal, been manifested by pain and flexion limited to, at worst 120 degrees. There has been no limitation of extension and, as previously noted, other impairment such as repeated subluxation or lateral instability has been separately evaluated as 10 percent, which is not, at present, subject to appellate consideration. The arthritis is, at this time, rated primarily on limitation of flexion, which is noncompensable under the schedular criteria. As noted, such noncompensable limitation of motion due to arthritis warrants a 10 percent rating, but no more. Under these circumstances, a rating in excess of 10 percent 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 degenerative joint disease of the right 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. Extraschedular Considerations 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) (2013); 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 right knee limitation of flexion rated as part of the arthritis directly corresponds to the schedular criteria for the 10 percent evaluation for limitation of knee flexion (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. Similarly, the moderate and marked limitation of motion of the right ankle (Code 5271) is specifically contemplated in the schedular rating criteria, and is the basis for the 20 percent, 10 percent, and 20 percent staged ratings that have been assigned for the right ankle disability. For these reasons, the Board finds that the assigned schedular ratings are adequate to rate the Veteran's right knee and right ankle disabilities, and no referral for an extraschedular rating is required. Finally, the Veteran is shown to be currently employed and, during his testimony before the undersigned, he made no claim that his service-connected disabilities rendered him unable to obtain or retain substantially gainful employment. Neither does the Veteran or the evidence suggest that the Veteran is unemployable by reason of his service-connected disabilities. Consequently, the matter of entitlement to a total disability rating based on individual unemployability is not raised by the Veteran or the evidence of record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). (CONTINUED ON NEXT PAGE) ORDER An initial rating for traumatic synovitis of the right ankle, rated 20 percent from April 2, 2003, to July 6, 2005; 10 percent from July 7, 2005 to February 13, 2007; and 20 percent from February 14, 2007, is denied. An increased rating for degenerative joint disease of the right knee, rated 10 percent disabling, is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs