Citation Nr: 0630417 Decision Date: 09/27/06 Archive Date: 01/18/07 Citation Nr: 0630417 Decision Date: 09/27/06 Archive Date: 10/04/06 DOCKET NO. 00-00 652 ) DATE SEP 27 2006 ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to a higher initial evaluation, in excess of 10 percent, for status post multiple right knee arthroscopy surgeries with history of synovitis and instability. 2. Entitlement to a higher initial evaluation, in excess of 10 percent, for right knee arthritis. 3. Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disability (TDIU). WITNESSES AT HEARING ON APPEAL Appellant and C.H., a VA congressional liaison ATTORNEY FOR THE BOARD Dennis F. Chiappetta, Senior Counsel INTRODUCTION The veteran had active military service from July 1973 to September 1976 and from May 1978 to November 1984. This matter came before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Portland, Oregon Regional Office (RO). In June 2003, the veteran appeared at the RO and offered testimony in support of his claim before the undersigned Veterans Law Judge. A transcript of the veteran's testimony has been associated with his claims file. In June 2004, the Board remanded these matters to the RO for further development. In a decision issued March 10, 2006, the Board denied the veteran's claims. Later that month, the veteran submitted statements requesting reconsideration of his claims based on new evidence. The issues are addressed on a de novo basis in a separate decision. VACATE The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.904 (2005). The Board issued a decision on May 10, 2006, concluding that the criteria for higher ratings for the veteran's right knee disabilities were not met and that the veteran was not entitled to a TDIU. After the Board decision was issued, the veteran requested reconsideration on the basis new medical evidence that was not of record at the time of the May 2006 decision. In light of the veteran's request and the additional evidence, the Board will vacate the May 10, 2006, decision in its entirety. Following entry of this order to vacate, the Board will consider the issue on appeal and render a decision as if the May 10, 2006, decision had never been issued. ORDER The May 10, 2006, decision of the Board of Veterans' Appeals is VACATED. ____________________________________________ N. R. ROBIN Veterans Law Judge, Board of Veterans' Appeals Citation Nr: 0607080 Decision Date: 03/10/06 Archive Date: 03/23/06 DOCKET NO. 00-00 652 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to a higher initial evaluation, in excess of 10 percent, for status post multiple right knee arthroscopy surgeries with history of synovitis and instability. 2. Entitlement to a higher initial evaluation, in excess of 10 percent, for right knee arthritis. 3. Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disability (TDIU). WITNESSES AT HEARING ON APPEAL Appellant and C.H., a VA congressional liaison ATTORNEY FOR THE BOARD R. E. Smith, Counsel INTRODUCTION The veteran had active military service from July 1973 to September 1976 and from May 1978 to November 1984. This matter came before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Portland, Oregon Regional Office (RO), which denied the veteran entitlement to the benefits enumerated above. Specifically, an August 1998 rating decision granted the veteran service connection for a right leg injury including the right knee and rated this disorder as 20 percent disabling. An April 2002 rating decision denied the veteran entitlement to a TDIU. In June 2003, the veteran appeared at the RO and offered testimony in support of his claim before the undersigned Veterans Law Judge. A transcript of the veteran's testimony has been associated with his claims file. This case was previously before the Board and, in June 2004, it was remanded to the RO for further development. The case has since been returned to the Board and is now ready for appellate review. FINDINGS OF FACT 1. Right knee arthritis is manifested by complaints of pain with flexion to 100-130 degrees and extension from -5 to 0 degrees. 2. Moderate right knee impairment due to recurrent subluxation or lateral instability is not demonstrated. 3. Service connection has been granted for irritable bowel syndrome with colitis, rated 30 percent disabling, bilateral pes planus and related foot disorders to include plantar fasciitis, hallux limitus/rigidus, degenerative joint disease of first metatarsophalangeal joint and posterior tibial tendonitis, rated 30 percent disabling, sleep apnea, rated 30 percent disabling, chronic prostatitis, rated 20 percent disabling, hemorrhoids, rated 10 percent disabling, chronic bursitis, left shoulder with history of dislocation, rated 10 percent disabling, chondromalacia patella left knee with synovitis and degenerative joint disease, rated 10 percent disabling, status post multiple arthroscopy surgeries, right knee, with synovitis, and history of instability, rated 10 percent disabling, and traumatic arthritis right knee, rated 10 percent disabling. The veteran's combined schedular rating is 90 percent. 4. The veteran has a college education and work experience in telemarketing, alcohol and drug counseling and in the waste recycling industry. 5. The veteran's service-connected disorders are not of sufficient severity to prevent him from securing or following substantially gainful employment consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for arthritis of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002); 38 C.F.R. 4.7, 4.40, 4.45, 4.59 and Part 4, Diagnostic Codes 5003, 5260, 5261 (2005). 2. The criteria for a rating in excess of 10 percent for status post multiple right knee arthroscopy surgeries with history of synovitis and instability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002); 38 C.F.R. 4.7, 4.40, 4.45, 4.59 and Part 4, Diagnostic Code 5257 (2005). 3. The criteria for a total disability rating based upon individual unemployability have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16(a)(b) (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS There has been a significant change in the law with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). See, 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). This law eliminates the concept of a well-grounded claim, and redefines the obligations of VA with respect to the duty to assist. The law also includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The final rule implementing the VCAA was published on August 29, 2001. 66 Fed. Reg. 45,620-32 (Aug.29, 2001) (codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)). The new notification provisions specifically require VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence, not previously provided to the Secretary, that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. 38 C.F.R. § 3.159(b) (2005). The Board notes that a decision promulgated on September 22, 2003, Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Court) invalidated the 30-day response period contained in 38 C.F.R. § 3.159(b)(1) as inconsistent with 38 U.S.C.§ 5103(b)(1). The Court made a conclusion similar to the one reached in Disabled Am. Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339, 1348 (Fed. Cir. 2003) (reviewing a related Board regulation, 38 C.F.R. § 19.9). The Court found that the 30- day period provided in § 3.159(b)(1) to respond to a VCCA duty to notify is misleading and detrimental to claimants whose claims are prematurely denied short of the statutory one-year period provided for response. With respect to Paralyzed Veterans of America v. Secretary of Veterans Affairs, on December 16, 2003, the President signed H.R. 2297, the Veterans Benefits Act of 2003 (the Act). Section 701 of the Act contains amendments to 38 USC §§ 5102 and 5103. The Act contains a provision that clarifies that VA may make a decision on a claim before the expiration of the one-year VCAA notice period. Veterans Benefits Act of 2003, P.L. 108- __ ,Section 701 (H.R. 2297, December 16, 2003) The record reflects that the VA has made reasonable efforts to notify the veteran of the information and evidence needed to substantiate his claim. The veteran was provided a copy of the rating decisions noted above, statements of the case in December 1999 and March 2003 and supplemental statements of the case dated in March 2000, February 2001, November 2001, May 2002, and October 2005. These documents, collectively, provide notice of the law and governing regulations, as well as the reasons for the determination made regarding his claim. By way of these documents, the veteran was also specifically informed of the cumulative evidence already having been previously provided to VA or obtained by VA on his behalf. Further, by way of letters dated in January 2002 and June 2004, the RO specifically informed the veteran of the information and evidence needed from him to substantiate his claim, evidence already submitted and/or obtained in his behalf, as well as the evidence VA would attempt to obtain. The record discloses that VA has met its duty to assist the veteran also in obtaining evidence necessary to substantiate his claim. Most notably VA and private treatment records and reports of comprehensive VA examinations provided to him since service have been obtained and associated with his claims file. There is no identified evidence that has not been accounted for and the veteran has been given the opportunity to present testimony in support of his claims and has done so. The Board notes, with respect to the claim for a higher evaluation for the veteran's right knee disabilities, that the June 2004 VCAA letter was mailed to the veteran subsequent to the appealed rating decision in violation of the VCAA and the veteran was not specifically informed to furnish copies of any pertinent evidence in his possession pertinent to his claims not previously submitted as required by 38 C.F.R. § 3.159. The Board, however, finds that in the instant case the veteran has not been prejudiced by this defect. In this regard, the Board notes the veteran was provided notice of the division of responsibility in obtaining evidence pertinent to his case and ample opportunity to submit and/or identify such evidence. No additional evidence appears forthcoming. Therefore, under the circumstances, the Board finds that any error in the chronological implementation of the VCAA is deemed to be harmless error. VA has satisfied both its duty to notify and assist the veteran in this case and adjudication of this appeal at this juncture poses no risk of prejudice to the veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Factual Background. The veteran's service medical records shows that in June 1984 he presented to a service department treatment facility with complaints of a right knee problem but could recall no injury. Following an essentially normal physical examination, questionable strain was the diagnostic assessment. Post service, the veteran presented to a VA treatment facility in November 1990 with an approximate 8 year history of right knee pain after falling down stairs. An MRI of right knee to rule out meniscus tear in December 1990 was interpreted to reveal an extensive tear of the posterior horn of the media meniscus as well as suggestive pathology in the region of the anterior cruciate. On right knee examination in February 1991, the veteran denied locking, instability, or swelling. There was normal alignment with approximately 10 degrees of valgus. Range of motion was from minus 5 to 120 degrees. There was tenderness to palpation posteriomedially. The knee was stable to varus/valgus stress. Lachman test and drawer sign were negative. In June 1991 the veteran was hospitalized at a VA medical facility and underwent right knee arthroscopy and partial meniscectomy with debridement. When seen in October 1991 for follow-up evaluation, the veteran was noted on physical examination to have full range of motion of the right knee with no effusion. On a VA examination in September 1995 the veteran complained of intermittent right knee pain, which is mild to moderate. He said the pain occurred with walking for more than two blocks and with repetitive motion of the knee, as with biking and jumping. He denied locking and/or swelling of the knee. He said that the knee gave way on occasion with strenuous physical activity, but improved with rest, Ibuprofen, massage, and stretching. On physical examination, it was noted that the veteran's gait was within normal limits. There was no obvious deformity or muscle atrophy noted. There was no swelling, popliteal fullness or joint line tenderness. There was no pain with patellofemoral compression. There was no effusion present. Deep tendon reflexes were +0/4 over the right knee and +2/4 over the left knee and both ankles. There was moderate crepitus with range of motion of both knees. McMurray's sign was negative bilaterally. Flexion/extension was 0-130 degrees, bilaterally, with internal and external rotation 10 degrees, bilaterally. Sensory examination was +2/5 in the L-5 distribution on the right and +5/5 in the remainder of the examination. Thigh circumference was 49 cm. bilaterally. Quadriceps and hamstring strength was 5/5, bilaterally. There was a 1+ anterior draw sign bilaterally. There was no ligamentous laxity noted. An x-ray of the right knee was interpreted to reveal mild degenerative joint disease. Status post arthroscopy of the right knee medial meniscus with debridement and right knee chronic synovitis were the diagnoses. In September 1997, the veteran presented to a VA clinic with continuing problems with his right knee. He stated that in the last six months he had been having increased episodes of swelling and pain in the right knee, especially with weight bearing or running. On physical examination, there was no erythema, tenderness, or swelling in either knee. There was tenderness to palpation over the right lateral meniscal cartilage. There was complete range of motion, but the McMurray's test elicited marked popping, grinding, and at least some moderate discomfort over the right lateral meniscal cartilage. Questionable new internal right knee derangement was the diagnostic assessment. An x-ray of the veteran's right knee in March 1998 revealed moderate degenerative joint disease in the medial compartment of the knee with no evidence of fracture, focal bone destruction, or joint effusion. No interval change was diagnosed. In March 1998 the veteran was hospitalized by VA following complaints of progressive right knee pain, particularly in the lateral knee with occasional popping and no locking. The veteran underwent right knee arthroscopy surgery. Arthroscopy revealed Grade I chondromalacial changes at the inferior pole of the patella, healthy looking lateral femoral condyle and lateral tibial plateau, a completely absent anterior cruciate ligament, and a posterolateral radial tear. There was also Grade I and II chondromalacia changes of the lateral femoral condyle. A VA outpatient treatment record dated in April 1998 indicates that the veteran was 7 weeks status post right knee arthroscopy. There was no effusion and the veteran was assessed as "doing well." Service connection for a right leg injury including right knee was established by an RO rating action dated in August 1998. This disorder was rated as 20 percent disabling under Diagnostic Code 5010-5257 of VA's Schedule for Rating Disabilities (Rating Schedule), effective from July 1990. On a VA joint examination in January 2000, the veteran complained of constant, moderate right knee pain that increased with range of motion and any strenuous physical exercise, weakness of the right leg and easy fatigability. He said that as a result he was unable to run any longer. He also complained of intermittent swelling over the right knee and giving way but denied falls. He denied locking of the knee and incoordination. He denied any decreased range of motion. He said that he experienced stiffness of his knee with cold and damp temperatures. Physical examination revealed multiple scars over the right knee. There was a moderate valgus deformity. The right leg appeared smaller than the left. There was no swelling over the knee. There was mild global tenderness on palpation. Deep tendon reflexes were plus two out of four. McMurray's sign was negative. There was moderate crepitus with range of motion. Range of motion was 0-130 degrees bilaterally. Motor examination was four out of five on the right and five out of five on the left. There was a negative anterior drawer sign and no other ligament laxity noted, although the veteran was guarding his knee due to pain. Status post arthroscopy times two, right knee and traumatic arthritis, right knee were the diagnoses rendered. In June 2000, the veteran presented to a VA orthopedic clinic with a chief complaint referable to his left knee. Examination of his knees revealed mild effusion on the left side. His patella palpated as nodular on the anterior surface and lateral edges with reproducible crepitus. There was no subluxation, inhibition, or apprehension of his patella. Drawer signs were negative, anterior and posterior. Lachman's was negative. McMurray's was questionably positive in the medial compartment. Varus and valgus tests were negative for significant pain or laxity. On a VA examination in April 2001, the veteran reported that he injured both of his knees in service. He said that he had pain on a daily basis in both knees as well as swelling, morning stiffness, crepitation, and popping. He reported collapsing had occurred in the past, especially on the left. He further stated that stairs were painful to ascend and descend for both knees. It was noted that he did not use any braces or canes. He said range of motion was generally reduced in both knees and flare-ups of pain in both knees occurred in association with activity. Physical examination revealed some lateral displacement of the patella in both knees. There was slight synovial thickening in both knees. There was 3+ crepitation on range of motion in the right knee, and 2+ on the left. There was tenderness of the patellofemoral joint on the left and medial joint line on the right. Range of motion of both knees was from 0-125 degrees. There was no lateral collateral, medial collateral or cruciate ligament laxity identified. McMurray's maneuver was negative. Quadriceps muscle were equal. Degenerative joint disease of the right knee status post medial meniscectomy was the pertinent diagnosis. The examiner commented that during periods of flare-ups of knee pain, he would expect additional motion loss of 25-30 degrees in the right knee. He added that he would expect mild alteration in the veteran's gait secondary to limping and diminished endurance secondary to pain and weakness. In January 2002, the veteran submitted an Application for Increased Compensation Based on Individual Unemployability (VA Form 21-8940). He said that he last worked full time in March 1995 and became too disabled to work in April 1998. The veteran reported that he had a college education with a Bachelor of Science degree. He also reported training at a Community College in alcohol and drug counseling. He reported prior work experience as a laborer and telemarketer. Of file are records extracted from veteran's VA vocational rehabilitation counseling and training folder. These records show that the veteran completed an AAS degree in business and a Bachelor's degree in sociology. While in service he performed duties as an inventory management specialist. He reported that following service he had never held a full time job. He reported stringing together a series of part time jobs, rotating among telemarketing, recycling, and temporary agency assignments. The veteran was noted by his VA counseling psychologist to report that his capacity to complete the physical demands at work is moderately to severely impaired. He also reported that his sustained concentration and persistence were mildly impaired. The veteran stated that he can obtain jobs as a warehouseman but that these jobs all paid minimum wage and that his knee would not sustain the wear and tear of such a manual labor job, according to his physicians and his own experience. It was recorded that the veteran preferred employment as a Drug and Alcohol counselor as he reported a background as a volunteer mental health and hot line counselor. The veteran was assessed as having an employment handicap in addition to a serious employment handicap. It was noted that his service- connected disability materially contributed to his employment restrictions. The veteran was found entitled to Chapter 31 vocational rehabilitation benefits. It was recommended that these benefits should be furnished so that he could become employed as a Drug and Alcohol counselor. In a statement dated in May 2003, a VA physician reported that the veteran had been under his care for four years and had urinary frequency that necessitated hourly use of the bathroom, knee meniscal injuries that limited lifting, squatting, kneeling, crouching, bending, repetitive climbing, and plantar fasciitis which limited standing and walking. He stated that these medical conditions interfered with the veteran's day to day activities. He added that due to the functional limitations related to these disorders, the veteran was not competitive in the work force and had limited likelihood of maintaining full time employment. At his hearing in June 2003, the veteran stated that disabilities including "muscular and skeletal" degenerative disorders involving multiple joints impeded his ability to work. The veteran described his prior employment experiences and the impact specific disabilities had on his current ability to obtain work. The veteran described symptoms and physical limitations associated with his right knee disorders. The veteran presented to a VA orthopedic clinic in July 2004 for evaluation of right knee pain. He reported progressively worsening lateral right knee pain for over a year. He denied locking and buckling of the knee. He reported some pain relief from low dose Motrin but stated that due to gastric symptoms he could not tolerate non-steroidal anti- inflammatory medication. He said that he had not tried a brace for his knee and that he had had no recent knee trauma. On physical examination the veteran had mild valgus deformity of the right knee. There was no effusion. Active range of motion was 0-100 degrees with pain on full flexion. There was lateral joint line tenderness. The knee was stable to valgus and varus stress. There was no crepitus. An x-ray of the right knee was interpreted to reveal moderately severe degenerative joint disease with no joint effusion. In August 2004 the veteran was furnished a right Seattle systems lateral unloader knee brace. Pursuant to the Board's June 2004 remand the veteran was provided VA examinations in January 2005 for the purpose of determining his employment capabilities and/or limitations due to his service connected disabilities. On VA orthopedic examination it was stated that the veteran reported pain on a daily basis in both knees, with swelling on the right. He had morning stiffness in both knees as well as the presence of crepitation, popping, and loss of range of motion. He noted that repetitive movement aggravated both knees and that flare-ups occurred in both knees with activity, which were usually relieved with rest after two hours. He added that these flare-ups result in additional motion loss. He noted that the veteran has a history of pes planus and hallux valgus deformities and wore inserts in his shoes in the form of arch supports. He stated that the veteran had pain on a daily basis in the arches of both feet and some metatarsal head and Achilles pain on occasion. He noted that there was increased pain with repetitive movement and intermittent swelling. He noted that the veteran did limp. Also noted was a history of recurrent left shoulder dislocations. The veteran reported morning stiffness and pain with repetitive use. There was no crepitation or popping. Range of motion was generally reduced. The examiner stated that repetitive movement aggravated the shoulder, especially with lifting, pushing, or pulling. It was noted that the veteran's overall functionability in terms of activities of daily living was limited in the amount of walking he could do and the amount of repetitive movement he could perform with his left upper and lower extremities. On physical examination of the veteran's pes planus, there was mild arch tenderness, with no heel or Achilles pain. There was no swelling or erythematous changes. There were no ulcerations. The knees showed tenderness on the right medial joint space. There was patellofemoral tenderness on the left. There was no effusion of either knee. There was 1+ crepitation in both knees, and mild pain on movement. Range of motion of both knees was 0-130 degrees. There was no lateral collateral, medial collateral, or cruciate ligament laxity identified. McMurray's maneuver was negative. Examination of the left shoulder showed tenderness anteriorly. The AC joint was normal. The clavicle was intact. The veteran had 0-130 degrees of forward flexion and abduction, limited by pain; 45 degrees internal and external rotation, limited by pain. Recurrent left shoulder dislocations, bilateral pes planus and calcaneal spurs, left knee chondromalacia patella with degenerative joint disease, right knee degenerative joint disease, and bilateral hallux valgus deformities were the diagnoses. The examiner stated that during flare-ups of pain involving the veteran's feet, he would expect no additional motion loss, but moderately severe alteration in the veteran's endurance in ambulatory activities, which represented the major functional impact. In the left shoulder he said that he would expect no additional motion loss, but moderate weakness in activities of pushing, pulling and performing movement activities in particular would represent the major functional impact. He stated that in terms of employability, the veteran would not be a candidate for his usual and customary occupation as a laborer with these conditions. He stated that the veteran would only be suitable for a sedentary line of work from an orthopedic standpoint On general VA examination in January 2005, the examiner noted that the veteran's obstructive sleep apnea reportedly presented problems with insomnia. He noted that the veteran's irritable bowel syndrome reportedly caused cramping, diarrhea, and constipation. The veteran's chronic prostatitis caused the veteran to urinate every hour to hour and a half. The examiner noted that the veteran underwent a colonoscopy in February 2003 that showed a Grade I internal hemorrhoid. On physical examination of the abdomen, the veteran was noted to have a nondistended, mild, diffuse tenderness, normoactive bowel sounds, and no hepatosplenomegaly or masses. On rectal examination, tenderness, to include the prostate, was noted. The examiner concluded that the veteran had irritable bowel syndrome that could make it difficult for the veteran to do physical labor if he did not have access to a bathroom. He added that the veteran could do sedentary work with this condition. He noted that the veteran had prostatitis that required him to urinate every hour to an hour and a half. He stated that the veteran would again have to have access to a bathroom at his work place; otherwise, this disorder should not interfere with his ability to work. Lastly, the examiner noted that the veteran had sleep apnea that would cause hypersomnolence, and make it difficult for him to work. Legal Criteria Disability evaluations are determined by the application of VA Schedule for Rating Disabilities, the aforementioned Rating Schedule, 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from disease and injuries incurred or aggravated during military service and the residual condition in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations, which are potentially applicable based upon the assertion and issues raised in the record and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration involves the propriety of the initial evaluations assigned, such as here, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged ratings" is required. See Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3. The evaluation of the same disability under various diagnoses is to be avoided. Disabilities with injuries to the muscles, the nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for the evaluation. Either the use or manifestations not resulting from service-connected diseases or injury establishing service-connected disability evaluation and the evaluation of the same manifestations under different diagnoses are to be avoided. 38 C.F.R. § 4.14 (2005). However, in Esteban v. Brown, 6 Vet. App. 259, 262 (1994), the Court held that evaluations for distinct disabilities resulting from the same injury could be combined so long as the symptomatology for one condition was not "duplicative of or overlapping of the symptomatology" of the other condition. Disabilities will be rated on the basis of functional impairment. Weakness is considered as important as limitation of motion. Any part that becomes painful on use must be regarded as seriously disabled. It is the intent of the rating schedule to recognize painful motion with joint or periarticular pathology as productive of disability. 38 C.F.R. §§ 4.40, 4.45, 4.59. In DeLuca v. Brown, 8 Vet. App. 202 (1995), United States Court of Appeals for Veterans Claims (Court) held that in evaluating a service-connected disability, the Board erred in not adequately considering functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination and reduction on normal excursions of movements, including pain on movement of a joint under 38 C.F.R. § 4.45. In DeLuca, the Court held that a diagnostic code based on limitation of motion does not subsume 38 C.F.R. §§ 4.40 and 4.45 and that the rule against pyramiding set forth in 38 C.F.R. § 4.14 does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including use during flare-ups. The Board notes that the provisions of 38 C.F.R. 4.40 and 4.45 should be considered in conjunction only with diagnostic code predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Analysis The Right Knee The Board at the outset notes that when initially service- connected by the RO's August 1998 rating action this disorder was characterized as a right leg injury including right knee and was rated as 20 percent disabling under Diagnostic Codes 5010-5257, effective from July 1990. However, during the course of this appeal, the veteran's service-connected right knee disorder has been recharacterized and is currently rated separately by the RO as 10 percent disabling for status post multiple arthroscopy surgeries with synovitis and history of instability under Diagnostic Code 5257, effective from November 11, 2001, as well as 10 percent disabling for arthritis under Diagnostic Code 5010, effective from November 11, 2001. In its analysis the Board will consider all manifestations of the veteran's right knee disability under the applicable Diagnostic Codes since the effective date of service connection, July 6, 1990. A. Arthritis of the right knee. The veteran's right knee range of motion, as noted consistently on VA examinations to be limited by pain, is now separately rated as 10 percent disabling under Diagnostic Code 5010, pertaining to the rating of traumatic arthritis of the knee, beginning November 11, 2001. Under 38 C.F.R. § 4.71a, Diagnostic Code 5010 arthritis due to trauma substantiated by x-ray findings is to be rated as degenerative arthritis. Degenerative arthritis, under Diagnostic Code 5003 is rated based on limitation of motion of the affected joint. Where, however, the limitation of motion of the specific joint is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or groups 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. In the absence of limitation of motion, a 10 percent rating may be assigned where there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. With these findings, and occasional incapacitation exacerbations, a rating of 20 percent may be assigned. These ratings will not be combined with ratings based on limitation of motion. Diagnostic Codes 5260 and 5261 govern limitation of leg motion. Diagnostic Code 5260 concerns limitation of leg flexion. A noncompensable evaluation is assigned where flexion is limited to 60 degrees. A 10 percent rating is warranted where flexion is limited to 45 degrees. A 20 percent evaluation is for application where flexion is limited to 30 degrees. Finally, a 30 percent rating applies where flexion is limited to 15 degrees. Diagnostic Code 5261 pertains to limitation of leg extension. Under that Code section, a noncompensable evaluation is assigned where extension is limited to 5 degrees. A 10 percent rating is warranted where extension is limited to 10 degrees. A 20 percent evaluation is for application where extension is limited to 15 degrees. A 30 percent rating applies where extension is limited to 20 degrees. A 40 percent rating is warranted where extension is limited to 30 degrees. Finally, a 50 percent evaluation is warranted where extension is limited to 45 degrees. The standard range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. The veteran's service-connected right knee disability is shown by the evidence summarized above, to be manifested by clinical findings of limitation of motion, pain, and tenderness. On the veteran's February 1991 VA examination, the veteran's right knee stability was good. Range of motion testing disclosed flexion, limited by pain, to 120 degrees and extension to -5 degrees. Full range of motion of the right knee was noted on VA outpatient treatment in October 1991, following his elective arthroscopy in June 1991. When he was examined by VA in September 1995 and, again, in January 2000 stability of the knee remained good. Right knee flexion, on both occasions, was to 130 degrees and extension was to 0 degrees. In April 2001, a VA physician noted range of motion of the right knee from 0 to 125 degrees with additional loss of 25-30 degrees of flexion with painful flare-ups. In July 2004 range of motion of the right knee was from 0-100 with pain and on his most recent examination in January 2005, the veteran's right knee range of motion was again nearly normal at 0-130 degrees with no lateral collateral, medial collateral, or cruciate ligament laxity identified. In sum, the evidence shows that the veteran suffers from chronic right knee pain and corresponding functional loss. With respect to functional loss, flexion of the right knee limited to 100-130 degrees and extension limited to -5 to 0 degrees do not satisfy the criteria for a higher evaluation under the applicable diagnostic codes. The Board has considered the functional impairment caused by the pain as set forth in the Deluca case. To warrant the next higher evaluation of 20 percent the functional impairment must result in the equivalent of leg flexion limited to 30 degrees or extension limited to 15 degrees. However, in view of the current range of motion findings, which do not warrant even a compensable rating under either Diagnostic Code 5260 or 5261, the Board finds that the current complaints are included in the 10 percent rating. In sum, consideration that some limitation of flexion is shown, together with the veteran's complaints of continued pain, the Board finds that the level of impairment resulting from the veteran's right knee degenerative joint disease is comparable to painful motion of the left knee, for which a 10 percent evaluation under Diagnostic Code 5010 has appropriately been assigned. See 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59. A higher than 10 percent evaluation for painful motion is simply not warranted in view of the slight degree of actual limitation of flexion demonstrated. The Board also has considered the recent VA General Counsel Precedent Opinion, VAOPGCPREC 9-2004 (September 17, 2004), where it was held that a claimant who had both limitation of flexion and limitation of extension of the same leg must be rated separately under Diagnostic Codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. However the veteran has not demonstrated any limitation of motion on extension and, in fact, has not demonstrated a compensable rating under either Code 5260 or 5261 based on a strict adherence to the limitation of motion criteria. What the RO has done is assign a 10 percent rating under Code 5010 in recognition of the fact that there is some right knee limitation of motion with pain. The Board does not interpret the General Counsel opinion as providing for separate ratings for noncompensable limitation of flexion and limitation of extension due to pain and believes that the 10 percent rating for limitation of motion with pain (although noncompensable under Codes 5260 and 5261) under Code 5010 is all that is permitted under that regulatory provision. In the absence of evidence of disability comparable to ankylosis, dislocation of semi-lunar cartilage, or impairment of the tibia or fibula, Diagnostic Codes 5256, 5258, or 5262, respectively, are not applicable. Accordingly, the Board finds that a rating in excess of 10 percent for arthritis of the right knee is not warranted. Furthermore, the Board finds that the current 10 percent rating represents the highest rating warranted since July 1990. and staged ratings from that date are not applicable. Fenderson v. West, 12 Vet. App. 119 (1999). B. Right knee post arthroscopy surgeries with history of synovitis and instability The circumstances of this case require consideration and application of Esteban v. Brown, 6 Vet.App. 259 (1994), which held that residuals of an injury warranted separate ratings under separate criteria when none of the symptoms under one set of criteria was duplicative or overlapping with symptoms under alternate criteria, In a precedent opinion, the VA General Counsel, applying the principles of Esteban to a knee disorder, held that where the service connected entity encompassed both instability and limitation of motion due to arthritis, separate ratings could be assigned under the Diagnostic Codes 5257 and 5003-5260,5261. In view of the above, and with consideration of 38 C.F.R. §§ 4.40 and 4.45, and Deluca v. Brown, the Board finds that the veteran is appropriately rated at the 10 percent level for right knee impairment under Diagnostic Code 5257. While it is shown that the veteran requires a brace, the right knee nevertheless exhibits as shown by the evidence summarized above, if any, only minimal instability. In the absence of recurrent subluxation or locking of the right knee, moderate impairment has not been demonstrated. Accordingly, the Board finds that a rating in excess of 10 percent for status post multiple right knee arthroscopy surgeries with history of synovitis and instability is not warranted. Furthermore, the Board finds that the current 10 percent rating represents the highest rating warranted for this manifestation of the veteran's right knee disorder since July 1990 and staged ratings from that date are not applicable. Fenderson v. West, 12 Vet. App. 119 (1999). TDIU The veteran has requested a total rating for compensation purposes based on individual unemployability. He is presently service connected for irritable bowel syndrome with colitis, rated 30 percent disabling, bilateral pes planus and related foot disorders to include plantar fasciitis, hallux limitus/rigidus, degenerative joint disease of first metatarsophalangeal joint and posterior tibial tendonitis, rated 30 percent disabling, sleep apnea, rated 30 percent disabling, chronic prostatitis, rated 20 percent disabling, hemorrhoids, rated 10 percent disabling, chronic bursitis, left shoulder with history of dislocation, rated 10 percent disabling, chondromalacia patella left knee with synovitis and degenerative joint disease, rated 10 percent disabling, status post multiple arthroscopy surgeries, right knee, with synovitis, and history of instability, rated 10 percent disabling, and traumatic arthritis right knee, rated 10 percent disabling. The veteran's combined schedular rating is 90 percent. Total disability ratings for compensation may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities providing at least one disability is rated at 40 percent or more and there is sufficient additional service- connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16(a). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In accordance with 38 C.F.R. § 4.16(b), if a veteran does meet the above percentage standards for a total rating, but is nevertheless unable to secure or follow a substantially gainful occupation by reason of service- connected disabilities, the veteran should be rated totally disabled. In arriving at such conclusion, the veteran's service- connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue will be considered. Here it is observed that in determining whether the veteran is entitled to a disability rating based upon individual unemployability, neither the veteran's nonservice-connected disabilities nor his advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). For a veteran to prevail on a claim based upon unemployability, it is necessary that the record reflect some factor, which places his case in a different category than other persons with equal ratings of disability. Id. Furthermore, the question is whether the veteran is capable of performing physical and mental acts required by employment, not whether the veteran can find employment. Id. A review of the record reveals that the veteran has a college education. He has occupational training as an inventory management specialist, telemarketing, alcohol and drug counseling, and the waste recycling industry. He last worked full time in March 1995. Although the veteran contends that he is unable to work because of his service-connected disabilities, the medical evidence in its entirety does not support this contention. The Board, based on the medical evidence cited above, cannot find that the veteran's service-connected disabilities evaluated at 90 percent disabling combined, cause him to be unable to secure and follow a substantially gainful employment, notwithstanding the medical opinion rendered by a VA physician in May 2003, that the veteran is not competitive in the work force and has limited likelihood of maintaining full time employment. While the evidence clearly indicates that the veteran has restrictions of employment as a result of service-connected disability, it does not indicate that the veteran is precluded from all forms of employment. While the veteran's service-connected disabilities combine to limit squatting, kneeling, crouching, bending, repetitive climbing, standing and walking, the record contains no opinion by a qualified professional that sedentary employment is precluded by service-connected disabilities. Here the Board observes that the veteran, albeit limited in the amount of walking he can perform, is capable of ambulation. The range of motion of both the right and left knee is only slightly limited secondary to pain and stiffness. The veteran's bilateral foot disorders result in moderately severe alteration of the veteran's ambulatory endurance but do not preclude ambulation. His left shoulder causes moderate weakness and limits the ability to push or pull but is not otherwise productive of any other functional restriction. Significantly when the veteran was examined in January 2005, the examiner reviewed the veteran's claims file and medical history and opined that the veteran's service- connected orthopedic disabilities should not preclude sedentary employment. The veteran's general VA examiner in January 2005 after examining the veteran and noting the restrictions imposed by the veteran's irritable bowel syndrome, chronic prostatitis and sleep apnea also concluded that the veteran with consideration for the manifestations of these disabilities and difficulties imposed by them could be employed in a sedentary work situation. These two recent examiners, while observing restrictions on activities imposed by the service-connected disabilities, have not found that such disabilities have rendered the veteran incapable of employment. The veteran, by virtue of his college education, is suited to performing sedentary work. The extent to which he is limited by the service-connected disabilities, such limitations are contemplated and being compensated by the 90 percent combined disability rating currently assigned for his condition. Therefore, the Board finds that entitlement to a total disability rating for compensation purposes based on individual unemployability must be denied. ORDER A higher initial evaluation, in excess of 10 percent, for status post multiple right knee arthroscopy surgeries with history of synovitis and instability is denied. A higher initial evaluation, in excess of 10 percent, for right knee arthritis is denied. A total rating for compensation purposes based on individual unemployability due to service-connected disability is denied. ____________________________________________ N. R. ROBIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs