Citation Nr: 1107035 Decision Date: 02/22/11 Archive Date: 03/04/11 DOCKET NO. 09-11 487 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an initial compensable rating for right knee patellofemoral syndrome prior to August 12, 2010, and an initial rating in excess of 10 percent thereafter. 2. Entitlement to an initial compensable rating for left knee patellofemoral syndrome prior to August 12, 2010, and an initial rating in excess of 10 percent thereafter. REPRESENTATION Veteran represented by: Lisa Luehrmann Portnoff, Attorney ATTORNEY FOR THE BOARD C. P. Swick, Associate Counsel INTRODUCTION The Veteran served on active duty from October 2006 to March 2007. This appeal to the Board of Veterans' Appeals (Board/BVA) originated from a January 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The January 2008 rating decision granted service connection for right and left knee patellofemoral syndrome and assigned initial noncompensable ratings, effective March 28, 2007. The Veteran appealed with respect to the initially assigned noncompensable ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). During the pendency of the appeal, the RO granted initial 10 percent ratings for each of these disabilities effective August 12, 2010, the date of a VA compensation and pension examination. Therefore, the claims on appeal are whether the Veteran is entitled to initial compensable ratings for his bilateral knee disabilities prior to August 12, 2010, and initial ratings in excess of 10 percent thereafter. See AB v. Brown, 6 Vet. App. 35, 38 (1993)( a claimant seeking a disability rating greater than assigned will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and that a claim remains in controversy where less than the maximum available benefits are awarded). The Board observes that the January 2008 rating decision also denied service connection for depression and bilateral otitis media. The Veteran entered a notice of disagreement as to such denials and both issues were addressed in the February 2009 statement of the case. However, pertinent to the issue of entitlement to service connection for bilateral otitis media, the Veteran did not address such in his March 2009 substantive appeal. Specifically, he limited his appeal as to the issues of entitlement to higher initial ratings for his service-connected bilateral knee disabilities and service connection for depression. Inasmuch as the RO has not taken any action to indicate to the Veteran that this issue remains on appeal and it took steps to close the appeal (see certification of Appeal [VA Form 8]), the requirement that there be a substantive appeal is not waived. The facts of this case are clearly distinguished from the United States Court of Appeals for Veterans Claims (Court)'s holding in Percy v. Shinseki, 23 Vet. App. 37 (2009), because in this appeal the Veteran was not mislead by actions on the part of VA into believing that he had perfected an appeal as to this issue. The Veteran did, however, perfect an appeal with respect to the issue of entitlement to service connection for depression. In an October 2010 Decision Review Officer (DRO) decision, service connection for such disability was granted. Therefore, this issue is no longer in appellate status. The Board also observes that the Veteran requested a hearing before a Veterans Law Judge sitting at the RO in his March 2009 substantive appeal (VA Form 9). Subsequently, in a May 2009 communication, he indicated that he wished to withdraw his request for a Board hearing and instead desired a hearing before a DRO, which was scheduled for July 2010. However, at such time, it was agreed that the Veteran would be examined in lieu of such hearing. Therefore, the Board finds that there are no outstanding hearing requests. FINDINGS OF FACT 1. Since the grant of service connection, the Veteran's right knee patellofemoral syndrome has been manifested by daily, aching-type pain, crepitation, and limitation of flexion to 135 degrees due to pain, without objective evidence of limitation of extension, arthritis, recurrent subluxation or lateral instability, ankylosis, dislocated semilunar cartilage, removal of semilunar cartilage, impairment of the tibia or fibula, or genu recurvatum. 2. Since the grant of service connection, the Veteran's left knee patellofemoral syndrome has been manifested by daily, aching-type pain, crepitation, and limitation of flexion to 135 degrees due to pain, without objective evidence of limitation of extension, arthritis, recurrent subluxation or lateral instability, ankylosis, dislocated semilunar cartilage, removal of semilunar cartilage, impairment of the tibia or fibula, or genu recurvatum. CONCLUSIONS OF LAW 1. The criteria are met for an initial 10 percent rating, but no higher, for the Veteran's right knee patellofemoral syndrome since the grant of service connection. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.71a, Diagnostic Code 5003, 5260 (2010). 2. The criteria are met for an initial10 percent rating, but no higher, for the Veteran's left knee patellofemoral syndrome since the grant of service connection. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.71a, Diagnostic Code 5003, 5260 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. In this case, a letter satisfying the notice requirements of 38 C.F.R. § 3.159(b)(1) was sent to the Veteran in June 2007, prior to the initial adjudication of his claims in January 2008. The letter informed him of the evidence required to establish his claims for service connection and his and VA's respective responsibilities in obtaining supporting evidence. The letter also complied with Dingess/Hartman by also apprising him of the disability rating and downstream effective date elements of his claims. Thereafter, the Veteran appealed with respect to the propriety of the initially assigned ratings for his bilateral knee disabilities from the original grant of service connection in the January 2008 rating decision. VA's General Counsel has held that no VCAA notice is required for such downstream issues. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). In this case, the Veteran's claim for service connection for his bilateral knee disabilities was granted and initial ratings were assigned in the January 2008 rating decision on appeal. Therefore, as the Veteran has appealed with respect to the initially assigned ratings, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of his claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The AOJ obtained all relevant medical and other records that he identified. He was also examined for VA compensation purposes in November 2007 and August 2010. These examination reports and medical and other evidence on file contains the information needed to assess the severity of his right and left knee disabilities, the determinative issues. 38 C.F.R. §§ 3.327, 4.2. See also Caffrey v. Brown, 6 Vet. App. 377 (1994). Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Analysis Disability ratings are determined by applying VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings 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; 38 C.F.R. § 4.1. 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the Veteran's favor. 38 C.F.R. § 4.3. While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Board must consider the application of staged ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. When determining the severity of a musculoskeletal disability, which is at least partly rated on the basis of range of motion, VA must consider the extent the Veteran may have additional functional impairment above and beyond the limitation of motion objectively shown due to the extent of his pain/painful motion, limited or excess movement, weakness, incoordination, and premature/excess fatigability, etc., particularly during times when his symptoms "flare up," such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995), citing 38 C.F.R. §§ 4.40, 4.45, 4.59. If, however, a Veteran is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable. Johnston v. Brown, 10 Vet. App. 80 (1997). In addition to these types of symptoms, other considerations include whether there is swelling, deformity or atrophy from disuse. 38 C.F.R. § 4.45. With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight- bearing are related considerations. 38 C.F.R. § 4.45. For the purpose of rating disability from arthritis, the knee is considered a major joint. See 38 C.F.R. § 4.45. The Veteran's bilateral knee disabilities have been rated under Diagnostic Code 5003 for degenerative arthritis. One of the Veteran's diagnoses- tendonosis- is also rated under this code, by way of DC 5024. DC 5003 provides that degenerative arthritis 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. According to DC 5003, when limitation of motion would be noncompensable, i.e., 0 percent, under a limitation-of-motion code, but there is at least some limitation of motion, VA assigns a 10 percent rating for each major joint so affected, to be combined, not added. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Under DC 5260, a 0 percent rating is warranted if the knee has flexion limited to 60 degrees; 10 percent rating is warranted if the knee has flexion limited to 45 degrees; a 20 percent rating is warranted if the knee has flexion limited to 30 degrees; and a 30 percent rating is warranted if the knee has flexion limited to 15 degrees. For VA compensation purposes, normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71a, Plate II. Under DC 5261 for evaluation based on limitation of extension of the leg, a 0 percent rating is warranted if extension of the knee is limited to 5 degrees; a 10 percent rating is warranted if extension of the knee is limited to 10 degrees; a 20 percent rating is warranted if extension of the knee is limited to 15 degrees; a 30 percent rating is warranted if extension of the knee is limited to 20 degrees, a 40 percent rating is warranted if extension of the knee is limited to 30 degrees warrants; and a 50 percent rating is warranted if extension of the knee is limited to 45 degrees. Under DC 5257, a 10 percent rating is warranted if there is recurrent subluxation or lateral instability resulting in a slight knee disability; a 20 percent rating is warranted if there is recurrent subluxation or lateral instability resulting in a moderate knee disability; and 30 percent rating is warranted if there is recurrent subluxation or lateral instability resulting in a severe knee disability. 38 C.F.R. § 4.71a, DC 5257. VA's Rating Schedule does not define the words "slight," "moderate" and "severe." Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6. VA's General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257, respectively, and that evaluation of a knee disability under both of these codes would not amount to pyramiding under 38 C.F.R. § 4.14. VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997), 62 Fed. Reg. 63604 (1997); see also Esteban v. Brown, 6 Vet. App. 259 (1994). However, a separate rating must be based on additional disability. In VAOPGCPREC 9-98 (August 14, 1998), VA's General Counsel further explained that, when a Veteran has a knee disability evaluated under DC 5257, to warrant a separate rating for arthritis based on X-ray findings, the limitation of motion need not be compensable under DCs 5260 or 5261, but it must at least meet the criteria for a zero percent rating or there must be objective evidence of painful motion because, read together, DC 5003 and 38 C.F.R. § 4.59 provide that painful motion due to degenerative arthritis, which is established by X-ray, is deemed to be limitation of motion and warrants the minimum rating for a joint, even if there is no actual limitation of motion. See also Lichtenfels v. Derwinski; 1 Vet. App. 484, 488 (1991). In VAOPGCPREC 9-04 (Sept. 17, 2004), 69 Fed. Reg. 59990 (2007), VA's General Counsel held that separate ratings also may be assigned for limitation of flexion and extension of the same knee. In January 2008, the AOJ granted service connection for patellofemoral syndrome of the bilateral knees and assigned initial noncompensable ratings. The Veteran appealed, claiming that the noncompensable ratings did not sufficiently compensate him for the interference in his daily life caused by his bilateral knee disabilities. Following an August 2010 VA examination, the RO increased the rating for the Veteran's bilateral knee disabilities to 10 percent disabling. The Veteran continued to appeal for a still higher rating. For the reasons and bases discussed below, the Board finds that as the Veteran's symptoms have been consistent throughout the appeal period his bilateral knee disabilities warrant an initial 10 percent rating since the grant of service connection. However, as he has full range of motion and no instability, his bilateral knee disabilities do not warrant initial ratings in excess of 10 percent. Right Knee Disability Applying these criteria to the facts of the case, the Board finds that the Veteran's right knee disability warrants an initial 10 percent rating, but no higher, since the grant of service connection. Specifically, at the November 2007 VA examination, the Veteran reported an aching-type pain daily in his right knee. He reported that the pain increases with walking or climbing stairs. He reported that the right knee will give out two times per week. The examiner noted that the right knee was cool to touch with no erythema or increased temperature. The examiner found full range of motion from 0 degrees of extension to 140 degrees of flexion with no decrease in range on repetitive testing. Likewise, such does not result in increased pain, weakness, fatigue, lack of endurance, lack of coordination, or any decrease in the degrees of range of motion. The examiner noted no crepitus or pain on palpation. The examiner noted negative anterior and posterior drawer tests reflecting no instability. X-rays of the right knee were unremarkable without fracture, dislocation or tumor. A March 2008 VA treatment record reveals full range of bilateral knee motion with the exception of a slight loss in lateral flexion and crepitation. Bilateral knee drawer signs were negative. In July 2008, the Veteran had symmetric range of motion from zero to 145 degrees bilaterally. He had mild patellfemoral crepitus on the right greater than the left. He was stable ligamentously bilaterally. The Veteran had no medial or lateral joint line pain bilaterally. He had tight medial retinaculum on the right side greater than the left side. He had minimal patellar translation. There were no degenerative changes or meniscal tears on X-ray and MRI. Additionally, such diagnostic testing revealed that his anterior and posterior cruciate ligaments were intact. Subsequent VA treatment records reflect complaints of pain and treatment with physical therapy and infrapatellar straps. A February 2009 VA treatment record indicates that an MRI of the right knee found no meniscal tear, patellar tendon edema, or cartilage defect. The examiner noted range of motion form 0 degrees extension to 145 degrees flexion. The examiner noted no pain over the medial or lateral joint line. The examiner noted negative McMurrays and Lachmans, and no laxity to varus or valgus stress. The examiner noted no appreciable swelling or effusion. The examiner diagnosed patellar tendinosis. The August 2010 VA examination found that the Veteran had range of motion of his right knee from 0 degrees to 140 degrees with pain at the extremes of the range i.e., 0 degrees of extension and 135 degrees of flexion. The examiner noted no decrease in range of motion on repetitive use. Additionally, repetitive motion testing revealed no further functional limitations due to pain, fatigue, incoordination, or instability. The examiner found no joint line pain. The examiner noted negative McMurray test and drawer test of the right knee. The examiner noted no medial or lateral instability upon varus or valgus stressing. The Veteran reported chronic, daily pain in his right knee made worse by prolonged walking, squatting, stair climbing, ladder climbing and prolonged sitting. The examiner diagnosed patellofemoral pain syndrome of the right knee. As the Veteran's symptoms were relatively stable throughout the appellate period, the Board finds that the currently assigned 10 percent rating for the right knee disability is warranted back to the date of service connection. At all examinations, the Veteran's predominant symptom was pain and, at the most recent VA examination, his right knee flexion was limited to 135 degrees due to pain; however, there was no additional limitation of motion due to pain, fatigue, weakness, incoordination, or lack of endurance. See DeLuca, supra. He did not have X-ray evidence of arthritis or objective evidence of instability at any of the three examinations. The Veteran's condition does not warrant the higher 20 percent rating because he did not have any limitation of motion of the right knee, let alone extension limited to 15 degrees or flexion limited to 30 degrees. He also does not warrant a separate or higher rating based on instability of the right knee because although the Veteran reported that his right knee gives way, none of the examinations found any objective evidence of instability. Additionally, as the evidence of record fails to demonstrate ankylosis, dislocation of semilunar cartilage, removal of semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum, the Veteran is not entitled to an increased or separate rating under Diagnostic Codes 5256, 5258, 5259, 5262, or 5263, respectively. Therefore, based on the foregoing, the Veteran's right knee disability does not warrant an initial rating in excess of 10 percent. As the Veteran's condition has never been more than 10 percent disabling since the grant of service connection, there is no basis to "stage" the rating under Fenderson. Left Knee Disability Applying these criteria to the facts of the case, the Board finds that the Veteran's left knee disability warrants an initial 10 percent rating, but no higher, since the grant of service connection. Specifically, at the November 2007 VA examination, the Veteran reported an aching-type pain daily in his left knee. He reported that the pain increases with walking or climbing stairs. He denied that the left knee ever locked up or gave out. The examiner noted that the left knee was cool to touch with no erythema or increased temperature. The examiner found full range of motion from 0 degrees of extension to 140 degrees of flexion with no decrease in range on repetitive testing. Likewise, such does not result in increased pain, weakness, fatigue, lack of endurance, lack of coordination, or any decrease in the degrees of range of motion. The examiner noted no crepitus or pain on palpation. The examiner noted negative anterior and posterior drawer tests reflecting no instability. X-rays of the left knee were unremarkable without fracture, dislocation or tumor. A March 2008 VA treatment record reveals full range of bilateral knee motion with the exception of a slight loss in lateral flexion and crepitation. Bilateral knee drawer signs were negative. In July 2008, the Veteran had symmetric range of motion from zero to 145 degrees bilaterally. He had mild patellfemoral crepitus on the right greater than the left. He was stable ligamentously bilaterally. The Veteran had no medial or lateral joint line pain bilaterally. He had tight medial retinaculum on the right side greater than the left side. He had minimal patellar translation. There were no degenerative changes or meniscal tears on X-ray and MRI. Additionally, such diagnostic testing revealed that his anterior and posterior cruciate ligaments were intact. Subsequent VA treatment records reflect complaints of pain and treatment with physical therapy and infrapatellar straps. A February 2009 VA treatment record indicates that an MRI of the left knee found no meniscal tear, patellar tendon edema, or cartilage defect. The examiner noted range of motion form 0 degrees extension to 145 degrees flexion. The examiner noted no pain over the medial or lateral joint line. The examiner noted negative McMurrays and Lachmans, and no laxity to varus or valgus stress. The examiner noted no appreciable swelling or effusion. The examiner diagnosed patellar tendinosis. The August 2010 VA examination found that the Veteran had range of motion of his left knee from 0 degrees to 140 degrees with pain at the extremes of the range, i.e., 0 degrees of extension and 135 degrees of flexion. The examiner noted no decrease in range of motion on repetitive use. Additionally, repetitive motion testing revealed no further functional limitations due to pain, fatigue, incoordination, or instability. The examiner found no joint line pain. The examiner noted negative McMurray test and drawer test of the left knee. The examiner noted no medial or lateral instability upon varus or valgus stressing. The Veteran reported chronic, daily pain in his left knee made worse by prolonged walking, squatting, stair climbing, ladder climbing and prolonged sitting. The examiner diagnosed patellofemoral pain syndrome of the left knee. As the Veteran's symptoms were relatively stable throughout the appellate period, the Board finds that the currently assigned 10 percent rating for the left knee disability is warranted back to the grant of service connection. At all examinations, the Veteran's predominant symptom was pain and, at the most recent VA examination, his right knee flexion was limited to 135 degrees due to pain; however, there was no additional limitation of motion due to pain, fatigue, weakness, incoordination, or lack of endurance. See DeLuca, supra. He did not have X-ray evidence of arthritis or objective evidence of instability at any of the examinations. The Veteran's condition does not warrant the higher 20 percent rating because he did not have any limitation of motion, let alone extension limited to 15 degrees or flexion limited to 30 degrees. He also does not warrant a separate or higher rating based on instability because he did not report any instability or giving way of the left knee and none of the examinations found any evidence of instability. Additionally, as the evidence of record fails to demonstrate ankylosis, dislocation of semilunar cartilage, removal of semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum, the Veteran is not entitled to an increased or separate rating under Diagnostic Codes 5256, 5258, 5259, 5262, or 5263, respectively. Therefore, based on the foregoing, the Veteran's left knee disability does not warrant an initial rating in excess of 10 percent. As the Veteran's condition has never been more than 10 percent disabling since the grant of service connection, there is no basis to "stage" the rating under Fenderson. Other Considerations 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 has carefully compared the level of severity and symptomatology of the Veteran's service-connected bilateral knee disabilities with the established criteria found in the rating schedule. The Board finds that the Veteran's bilateral knee symptomatology is fully addressed by the rating criteria under which such disabilities are rated. There are no additional symptoms of his bilateral knee disabilities that are not addressed by the rating schedule. Therefore, the Board finds that the rating criteria reasonably describes the Veteran's disability level and symptomatology for his service-connected disabilities. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Moreover, to the extent that the Veteran's bilateral knee disabilities may interfere with his employability, such interference is addressed by the schedular rating criteria. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Additionally, there are no attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, the Board finds that a claim for a TDIU was not expressly raised by the Veteran or reasonably raised by the record. In this regard, the Board observes that the record reflects that, at the examinations, the Veteran reported that he was employed and that his knee disabilities did not require him to take days off from work. Consequently, as the Board has determined that a claim for TDIU has not been raised by the Veteran or the evidence of record, no further consideration of such is necessary. In sum, the Board finds that initial rating of 10 percent but no higher, is warranted for the Veteran's bilateral knee disabilities. The Board, however, finds that the preponderance of the evidence is against the Veteran's claim for initial ratings in excess of 10 percent. In denying such higher initial ratings, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. ORDER An initial 10 percent rating, but no higher, for right knee patellofemoral syndrome is granted, subject to the laws and regulations governing the payment of VA compensation. An initial 10 percent rating, but no higher, for left knee patellofemoral syndrome is granted, subject to the laws and regulations governing the payment of VA compensation. ____________________________________________ A. JAEGER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs