Citation Nr: 1415599 Decision Date: 04/09/14 Archive Date: 04/15/14 DOCKET NO. 11-20 233 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial disability evaluation in excess of 10 percent for service-connected status post right knee anterior cruciate ligament tear repair with degenerative changes. 2. Entitlement to a compensable initial disability evaluation for service-connected residual scars of the right knee. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Barbier, Associate Counsel INTRODUCTION The Veteran served on active duty from May 2003 to June 2010. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2010 rating decision in which the RO awarded service connection for the Veteran's right knee condition and assigned an initial rating of 10 percent effective from June 21, 2010, the day after the Veteran's separation from service. In that same rating decision, the RO awarded service connection for the Veteran's right knee residual scar and assigned a noncompensable rating effective from June 21, 2010. The Veteran filed a notice of disagreement with the initial ratings in August 2010. The RO issued a statement of the case in May 2011 and a supplemental statement of the case in November 2013. The Veteran filed a substantive appeal (via a Form 9, Appeal to Board of Veterans' Appeals) in July 2011. Because the Veteran disagreed with the initial ratings assigned following the award of service connection for his right knee condition and right knee residual scar, the Board characterizes these claims in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for an already service-connected disability). This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. For the entire appeal period, the Veteran's right knee condition results in subjective complaints of pain, weakness, and crepitus and objective evidence of limitation of motion to 100 degrees in flexion and full range of motion in extension. 2. The scars located on the Veteran's right knee are superficial, stable, not painful on objective examination or otherwise, measure less than 39 square centimeters in size, do not limit motion or function, and do not cause any disabling effects. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for the Veteran's service-connected status post right knee anterior cruciate ligament tear repair with degenerative changes have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71, Diagnostic Codes 5256-5263 (2013). 2. The criteria for a compensable initial disability rating for the Veteran's service-connected residual scars of the right knee have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.118, Diagnostic Code (DC) 7804 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) states that VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). Turning to the duty to notify, VA must notify claimants of the evidence that is necessary, or would be of assistance in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159. The notice VA provides must inform the claimant of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. §3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In this case, the Board finds that VA has satisfied its duty to notify under the VCAA. The claims file contains a VCAA Notice Acknowledgement dated March 2010, which indicates that the Veteran received a VCAA notice letter explaining the evidence and information necessary to substantiate his claim for service connection for his right knee condition and scar. The Veteran indicated at that time that he had no further evidence to submit in support of his claim. Thus, the Board finds the Veteran was put on notice with respect to what was required to substantiate his claim. Here, the Veteran was granted service connection for his right knee condition and residual scar in a July 2010 rating decision and challenged the 10 percent and noncompensable initial ratings assigned respectively therein. The Board notes that the statutory scheme contemplates that once a decision awarding service connection, a disability rating and an effective date has been made, 38 U.S.C.A. § 5103(a) notice has served its purpose. Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). As the claims file contains evidence that the Veteran received a notice letter in compliance with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), and the notice served the purpose as a decision was issued awarding service connection, a disability rating, and an effective date, the Board concludes that VA satisfied its duty to notify the Veteran. As for the duty to assist, VA satisfied its duty to assist the Veteran in the development of his claim. One part of VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159. The record reflects that relevant service records and VA treatment records have been associated with the Veteran's claims file. The Veteran has not identified any additional sources of medical records. Further, the duty to assist also includes providing an examination when warranted. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Here, the Veteran was provided with VA examinations in April 2010 and January 2013. The examinations were adequate as the examination reports show the examiners considered the Veteran's relevant history, provided a sufficiently detailed description of the disability and provided an analysis to support his findings. With respect to the April 2010 examination, the Veteran contends in his August 2010 notice of disagreement that the examination was inadequate, as the examiner seemed to be in a hurry and did not perform adequate tests to determine the Veteran's true condition. While the Board regrets the impression of the Veteran that this VA examiner was in a hurry, the Board is entitled to assume the competence of a VA examiner. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007). Additionally, the examiner provided the information necessary to adjudicate the claim. The examiner performed stability and range of motion testing and commented on the Veteran's other symptoms related to his right knee. Furthermore, the examiner provided sufficient descriptions of the Veteran's right knee scars. Thus, the Board finds the April 2010 and the January 2013 examinations to be adequate to adjudicate the Veteran's claims and no further examination is necessary. Finally, the Board notes that VFW has not submitted a VA Form 646, Statement of Accredited Representative in Appealed Case, prior to the claim being certified to the Board. The Veteran's representative must be given an opportunity to submit argument at the agency of original jurisdiction. See 38 C.F.R. § 20.600 (2013). In the present case, the RO informed VFW by email dated December 2013 that they had thirty days to submit a VA Form 646 before the Veteran's case would be certified to the Board. VFW did not respond or submit the VA Form 646 within that time period. Thus, the Board finds that the Veteran's representative was given a reasonable opportunity to submit argument to the RO and chose not to do so. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to undertake to comply with the provisions of 38 U.S.C.A. § 5103, 5013A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. II. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In general, 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. The Board may consider whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in function loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. Id. at 38 (quoting 38 C.F.R. § 4.40). 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. 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. In Burton v. Shinseki, 25 Vet. App. 1 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. In the present case, the Veteran is currently rated at 10 percent, the minimum compensable rating for his right knee. Thus, 38 C.F.R. § 4.59 does not apply. The Veteran's right knee condition is evaluated under 38 C.F.R. § 4.71a, DC 5010, which states that arthritis due to trauma will be rated on limitation of motion of the affected parts, as degenerative arthritis, under DC 5003. Pursuant to Diagnostic Code 5003, arthritis established by x-ray findings will be rated on the basis of limitation of motion of the specific joint involved. When, however, the limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations warrants a 20 percent evaluation. X-ray evidence of involvement of two or more major joints or two or more minor joints warrants a 10 percent evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. For the purpose of rating disability from arthritis, the knee is considered a major joint. See 38 C.F.R. § 4.45. Normal extension and flexion of the knee is from 0 to 140 degrees. 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5260, a noncompensable rating is warranted for flexion limited to 60 degrees, a 10 percent rating is warranted for flexion limited to 45 degrees, a 20 percent rating is warranted for flexion limited to 30 degrees, and a 30 percent rating is warranted for flexion limited to 15 degrees. Under Diagnostic Code 5261, a noncompensable rating is warranted for extension limited to five degrees, a 10 percent rating is warranted for extension limited to 10 degrees, a 20 percent rating is warranted for extension limited to 15 degrees, a 30 percent rating is warranted for extension limited to 20 degrees, a 40 percent rating is warranted for extension limited to 30 degrees, and a 50 percent rating is warranted for extension limited to 45 degrees. In this case, the evidence of record consists of service treatment records, VA treatment records, VA examinations and statements from the Veteran. An April 2010 VA examination revealed the following symptoms related to his right knee: weakness, stiffness, swelling and pain. The Veteran reported he did not experience heat, redness, giving way, lack of endurance, locking, fatigability, deformity, tenderness, drainage, effusion, subluxation, or dislocation. The Veteran reported flare-ups two or three times per day, lasting for two hours. During a flare-up, he noted pain to be rated seven out of ten with no functional impairment or limitation of motion. These flare-ups were brought on by getting out of a vehicle. The Veteran noted no difficulty with standing or walking nor any functional impairment due to his right knee condition. He further noted that he was unable to garden or push a lawn mower due to his knee pain. An examination of the Veteran's feet revealed no abnormal weight bearing and that the Veteran walked with a normal gait. The Veteran was noted to not require any assistive device for ambulation. An examination of the right knee revealed no signs of edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation, guarding of movement, locking pain, genu recurvatum, crepitus or ankylosis. Range of motion for the right knee was 140 degrees of flexion and extension to 0 degrees. No limitation of motion was noted upon repetitive use. The examiner noted normal medial/lateral collateral ligaments stability test, anterior/posterior cruciate ligaments stability test, and medial/lateral meniscus stability test for the right knee. An x-ray of the right knee showed post-surgical changes secondary to ACL reconstruction with mild degenerative changes. In a July 2010 addendum statement from the examiner, he noted that the Veteran had no limitation of motion loss due to pain, lack of endurance, weakened movement, fatigability, or incoordination with repetitive motion. He also noted no additional limitations of joint junction in degrees. VA treatment records from May 2011 revealed that the Veteran was told in service he had no cartilage left in his right knee. The physician noted a stable knee with full range of motion and synovial thickening compared to contralateral knee. Assessment was status post ACL with probable early posttraumatic changes. In July 2011, the Veteran was diagnosed with a torn meniscus of the right knee. The Veteran reported pain with increased activity and occasional instability and swelling. The physician noted no true locking. A recent MRI was reported to demonstrate recurrent meniscal tears and some areas of extensive chondromalacia. An examination of the right knee revealed full range of motion with mild crepitance, no swelling and no instability. Assessment was right knee posttraumatic degenerative joint disease and meniscal tearing with a plan for right knee arthroscopy and debridement, which the Veteran had later that month. In his July 2011 VA Form 9, the Veteran noted continued pain, popping, stiffness and swelling in his right knee. The Veteran noted having four operations on his right knee in five years. The Veteran reported that he was unable to stand for long periods of time and unable to run, squat, jump, or walk briskly without pain, stiffness and swelling in the right knee. An October 2011 VA treatment record reported minimal complaints from the Veteran three months after arthroscopic lateral meniscectomy. He reported no swelling. The right knee was described as grossly stable. The Veteran was noted to be at high risk for premature arthritis of the right knee. In April 2012, the Veteran reported no significant complaints or concerns, and a fairly uneventful postoperative course was noted. An examination revealed normal gait. Assessment was right knee pain with slight improvement due to recent arthroscopic procedure and a change in vocation. A January 2013 VA examination report revealed a diagnosis of right knee arthritis, right knee ACL repair, and right knee meniscus repair. The Veteran was noted to be status post anterior cruciate ligament tear repair with degenerative changes, to include the meniscus. The Veteran reported continued problems with the right knee daily. He reported popping and swelling most of the time. He noted problems bending the knee, standing more than twenty minutes, walking twenty minutes and sitting two or three minutes. He reported that after two or three minutes sitting, he had to stretch out the right knee to pop it. He noted an inability to squat, run, quick turn, or pick up heavy things requiring bending. He noted pain was rated four or five out of ten daily and eight or nine out of ten during flare-ups, which were caused by cold weather. An examination revealed range of motion of the right knee was 100 degrees of flexion with pain and extension to 0 degrees. The examiner noted no additional limitation of motion after repetitive use. The examiner reported the following functional loss and impairment of the right knee: less movement than normal, pain on movement, swelling, and interference with sitting, standing and weight bearing. No tenderness or pain to palpation for joint line or soft tissue was noted in the right knee. Muscle strength testing revealed a score of 4/5, consistent with active movement against some resistance for both flexion and extension of the right knee. Joint stability tests, to include Lachman's test, posterior drawer test, and medial-lateral instability test were all normal. The examiner noted no recurrent patellar subluxation or dislocation, shin splints, stress fractures, chronic exertional compartment syndrome or other tibial or fibular impairment. The examiner noted history of meniscal tear with frequent episodes of locking, joint pain and joint effusion. The examiner noted the Veteran had a meniscectomy and arthroscopic surgery on the right knee with no residual signs or symptoms. The Veteran was noted to wear a knee brace regularly. The examiner noted that imaging studies of the Veteran's right knee documented degenerative or traumatic arthritis. An x-ray revealed a prior ACL repair and no significant right knee arthropathy. The examiner noted the Veteran's right knee condition did not impact his ability to work. In June 2013, the Veteran reported to his local VA facility reporting major right knee pain radiating to hip a couple of weeks prior. He treated it with ice and Motrin, and it got better in two or three days. He reported he had no problems at the present time. An examination revealed decreased range of motion to extension of knee, right greater than left. The Veteran's right knee pain was noted to be resolved. In evaluating the Veteran's right knee under DC 5260 based on limitation of motion, the evidence shows that the Veterans' range of motion in flexion is limited to no less than 100 degrees, even with consideration of pain. There is no evidence showing the Veteran's range of motion in flexion is limited to 60 degrees or less. As such, a higher rating is not warranted under DC 5260. In addition to the foregoing, the evidence shows that the Veteran consistently demonstrated normal extension to zero degrees in his right knee. In June 2013, decreased range of motion to extension was noted, though the degree to which it was limited was not noted. Thus, no basis was provided for which to apply the rating criteria. Even considering the Veteran's complaints of pain, there is no other lay or medical evidence showing the Veteran's right knee is limited to 5 degrees or more in extension to warrant a rating under DC 5261. VA examinations shows that the Veteran could perform repetitive testing and that he did not have additional limitation of motion following such test. Although the Veteran reported having less movement during flare-ups, there is no evidence showing that his range of motion diminishes to the point of requiring a rating in excess of 10 percent for flexion or results in a compensable rating based on limitation of extension. Thus, the Board finds that the preponderance of the evidence does not support a higher rating for the right knee disability manifested by limitation of flexion or extension, even taking into account the Veteran's additional functional limitation due to pain. See 38 C.F.R. §§ 4.40, 4.45. The Board has also considered other potentially applicable Diagnostic Codes. See Esteban v. Brown, 6 Vet. App. 259 (1994) (holding that separate ratings may be assigned if the symptomatology is not duplicative or overlapping). The evidence of record shows no ankylosis of the right knee to warrant a rating under DC 5256, no impairment of the tibia and fibula to warrant a rating under DC 5262, nor genu recurvatum to warrant a rating under DC 5263. With respect to instability under DC 5257, the evidence of record shows no subluxation. Furthermore, on examination, no instability or giving way was shown. The April 2010 and January 2013 examinations reported normal findings on instability tests. The Veteran denied any giving way or instability in April 2010. In October 2011, the Veteran's right knee was described as "grossly stable." The Veteran noted in July 2011 that he experienced occasional instability with increased activity. However, this statement is in contrast to his other statements of record indicating no instability. The Board finds the Veteran's statements denying instability to be more probative, as they are more consistent with his reported history, as well as consistent with the VA examination reports, showing that all instability testing was normal. Therefore, a rating under DC 5257 is not warranted. Furthermore, the Veteran underwent a meniscectomy in July 2011, consistent with DC 5259. The evidence of record shows that since that procedure, the Veteran has not experienced any symptoms related thereto. In January 2013, the VA examiner noted that the Veteran had no residual signs of symptoms related to his meniscectomy. Therefore, a rating under DC 5259 is not warranted. With respect to DC 5258, prior to the July 2011 procedure, the evidence shows the Veteran suffered from meniscus tears; however, no dislocations were noted. Furthermore, the Veteran denied any locking, effusion or dislocation during the April 2010 VA examination, which was supported by the objective findings of the examiner. In July 2011, prior to the Veteran's meniscectomy, VA treatment records noted no true locking of the right knee. The January 2013 VA examiner noted a history of meniscal tears with frequent episodes of locking, joint pain and joint effusion. However, such a finding is inconsistent with the other evidence of record including the Veteran's statements and VA treatment records contemporaneous to the meniscal tear. Therefore, the Board finds the Veteran's statements and VA treatment records contemporaneous to his meniscus tear to be more probative than the January 2013 VA examiner's notation of the Veteran's medical history made after the fact. Thus, a rating under DC 5258 is not warranted. With respect to the Veteran's right knee residual scars, an April 2010 VA examination revealed a linear scar on the right knee, measuring 11 centimeters by 3 centimeters. The examiner noted that the scar was not painful and was a superficial scar with no underlying tissue damage. The examiner noted no inflammation, edema, or keloid formation and that the scar was not disfiguring. The examiner also noted that the scar did not limit the Veteran's motion or function. A July 2011 VA treatment record revealed well-healed scars on the right knee. In a July 2011 VA Form 9, the Veteran noted that the scar on his right knee, the result of three incisions due to operations, continued to be numb. He further reported obvious signs of keloid formation with an abnormal "bumpy" texture. The Veteran noted a total of seven visible scars, all with some form of keloid formation and obvious signs of hyperpigmentation. In a January 2013 VA examination, the examiner noted the Veteran had no painful or unstable scars and that the total area of all related scars was less than 39 square centimeters (cm) (6 square inches). The examiner reported seven linear, post-surgery scars on the Veteran's right knee with numbness. One medial scar measured 10 cm by 2 cm. Three scars were located on the right lateral knee measuring 1 cm by 0.12 cm, 0.5 cm by 0.12 cm, and 2 cm by 0.12 cm. Three scars were located on the left lateral knee, measuring 0.5 by 0.12 cm, 2 cm by 0.12 cm and 4 cm by 0.12 cm. The examiner noted that the Veteran's scars did not impact his ability to work. In evaluating the Veteran's scars, the Board finds that a compensable rating is not warranted under any of the diagnostic codes addressing scarring. See 38 C.F.R. § 4.118, DC 7800-7805. The Veteran's scars do not affect his head, face or neck and are described as linear, stable and not painful. Furthermore, a surface area of 39 square centimeters has not been affected by scarring. The January 2013 examiner noted no limitation of motion or function due to the Veteran's scars. Based on the evidence of record, a compensable rating for the Veteran's service-connected right knee scars is not warranted. The Board has considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected right knee or right knee scars; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disabilities are not warranted. Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. An extra-schedular disability rating is warranted if 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 application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant'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 Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. Id. The Board finds that referral for consideration of the assignment of an extraschedular rating is not warranted. In this case, the manifestations of the Veteran's right knee disability are fully contemplated by the schedular rating criteria. Indeed, the Veteran's symptoms of stiffness, popping, weakness, swelling, and pain as well as limitations in sitting, standing and walking are contemplated by the disability rating assigned herein. These symptoms are contemplated by the criteria found at 38 C.F.R. § 4.71a along with the application of 38 C.F.R. §§ 4.40, 4.45 and 4.59, as they relate to the lack of endurance, fatigability, and painful motion of the Veteran's right knee. Greater levels of disability than those suffered by the Veteran are contemplated by the schedular criteria. The same is true of the Veteran's right knee scars. The symptoms reported are contemplated by the rating criteria along with greater levels of scarring. As such, the first prong of Thun is not satisfied favorably for the Veteran. Because the threshold test of that first factor is not met, the Board need not proceed in considering the second factor, whether there are related factors such as marked interference with employment or frequent periods of hospitalization. Thun, supra. The Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating due to individual unemployability (TDIU) is part of a rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. In this case, the Veteran has not expressly alleged nor does the evidence of record support that he is currently unemployed or unable to secure or follow a substantially gainful occupation as a result of his service-connected right knee or right knee scar disabilities. In the April 2010 VA examination, the Veteran was noted to be currently employed. In a April 2012 VA treatment note, the Veteran reported changing jobs but that he was still working. As such, the Board finds that Rice is not applicable to the current appeal. A claim for TDIU is implicitly raised whenever a pro se Veteran, who presents cogent evidence of unemployability, seeks to obtain a higher disability rating. Rice, 22 Vet. App. 447, citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). The Board finds that such cogent evidence is not present in this case. Thus, any further discussion of an issue of entitlement to TDIU is not necessary. ORDER Entitlement to an initial disability rating in excess of 10 percent for status post right knee anterior cruciate ligament tear repair with degenerative changes is denied. Entitlement to an initial compensable rating for residual scars of the right knee is denied. ____________________________________________ K. Osborne Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs