Citation Nr: 0810421 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 04-41 450 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE 1. Entitlement to an initial disability rating greater than 10 percent for right knee osteoarthritis. 2. Entitlement to an initial disability rating greater than 10 percent prior to February 10, 2007, and 20 percent thereafter, including on an extraschedular basis, for residuals of right ankle sprain with chronic lateral instability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The veteran had active service from February 1976 to February 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which granted the veteran's claim of service connection for right knee osteoarthritis, assigning a 10 percent rating effective January 18, 2002, denied the veteran's claim of entitlement to a disability rating greater than 10 percent for residuals of a right ankle sprain with chronic lateral instability, and also denied the veteran's claims of service connection for a sinus and allergy condition, high blood pressure, manic depression, and for osteoarthritis of the left knee, lumbar spine, and right hip. The veteran disagreed with this decision in December 2003, seeking an initial disability rating greater than 10 percent for right knee osteoarthritis, an increased rating greater than 10 percent for residuals of a right ankle sprain with chronic lateral instability, and service connection for a sinus and allergy condition, high blood pressure, manic depression, and for osteoarthritis of the left knee, lumbar spine, and right hip. He perfected a timely appeal in November 2004, limiting his appeal to an initial disability rating greater than 10 percent for right knee osteoarthritis, an increased rating greater than 10 percent for residuals of a right ankle sprain with chronic lateral instability, and service connection for manic depression and for osteoarthritis of the left knee, lumbar spine, and right hip. He also requested a Travel Board hearing, which was held at the RO in August 2005. In September 2006, the Board remanded the veteran's claims to the RO via the Appeals Management Center (AMC) in Washington, D.C., for additional development. In a May 2007 rating decision, the RO granted the veteran's claims of service connection for manic depression, assigning a 70 percent rating effective February 14, 2007, for osteoarthritis of the right hip, assigning a 10 percent rating effective February 10, 2007, for osteoarthritis of the left knee, assigning a 10 percent rating effective February 10, 2007, and for osteoarthritis of the lumbar spine, assigning a 10 percent rating effective February 10, 2007. There is no subsequent correspondence from the veteran expressing disagreement with the ratings or effective dates assigned. Accordingly, issues relating to manic depression, osteoarthritis of the right hip, left knee, and lumbar spine are no longer in appellate status. See Grantham v. Brown, 114 F .3d 1156 (1997). In the May 2007 rating decision, the RO also assigned a 20 percent rating to the veteran's service-connected residuals of a right ankle sprain with chronic lateral instability effective February 10, 2007. Because the initial ratings assigned to the veteran's service-connected residuals of a right ankle sprain with chronic lateral instability are not the maximum ratings available for this disability, this claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's higher initial rating claims for right knee osteoarthritis and for residuals of a right ankle sprain has been obtained. 2. There is no medical evidence that the veteran's service- connected right knee osteoarthritis is manifested by occasional incapacitating exacerbations or by flexion limited to 30 degrees. 3. Prior to February 10, 2007, the veteran's service- connected residuals of a right ankle sprain were manifested by mild pain on range of motion testing and mild lateral instability. 4. Since February 10, 2007, the veteran's service-connected residuals of a right ankle sprain are manifested by, at most, marked limitation of motion; there is no evidence of exceptional or unusual disability, marked interference with employment, or frequent periods of hospitalization due to this disability. CONCLUSIONS OF LAW 1. The criteria for an initial rating greater than 10 percent for right knee osteoarthritis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, DC 5003-5260 (2007). 2. The criteria for an initial rating greater than 10 percent prior to February 10, 2007, and 20 percent thereafter on an extraschedular basis, for residuals of a right ankle sprain with chronic lateral instability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.71a, DC 5003-5271 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. With respect to the veteran's higher initial rating claim for right knee arthritis, the claim on appeal is a "downstream" element of the RO's grant of service connection in the currently appealed rating decision issued in September 2003. For such downstream issues, notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159 is not required in cases where such notice was afforded for the originating issue of service connection. See VAOPGCPREC 8-2003 (Dec. 22, 2003). In a letter issued in July 2003, VA notified the veteran of the information and evidence needed to substantiate and complete his claim for service connection for right knee osteoarthritis, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letter informed the veteran to submit medical evidence, statements from persons who knew the veteran and had knowledge of his right knee osteoarthritis during service, and noted other types of evidence the veteran could submit in support of his claim. In addition, the veteran was informed of when and where to send the evidence. With respect to the veteran's higher initial rating claim for residuals of a right ankle sprain with chronic lateral instability, the claim on appeal is a "downstream" element of the RO's grant of service connection in September 1990. The September 1990 rating decision was not appealed and became final. See 38 U.S.C.A. § 7104 (2007). The RO was unable to provide VCAA notice to the veteran prior to the September 1990 rating decision because this decision was issued prior to the VCAA's enactment. In any event, in the July 2003 letter, VA notified the veteran of the information and evidence needed to substantiate and complete his higher initial rating claim for residuals of a right ankle sprain with chronic lateral instability, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letter informed the veteran to submit medical evidence showing that his service-connected right ankle residuals had worsened and noted other types of evidence the veteran could submit in support of his claim. In addition, the veteran was informed of when and where to send the evidence. After consideration of the contents of the July 2003 VCAA letter, the Board finds that VA has substantially satisfied the requirement that the veteran be advised to submit any additional information in support of his claims. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Pursuant to the Board's September 2006 remand, VA also provided the appellant with notice of the Dingess requirements in October 2006. Although complete content- complying notice was provided after the September 2003 RO decision that is the subject of the current appeal, the claimant has had the opportunity to submit additional argument and evidence and to participate meaningfully in the adjudication process. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The veteran has not alleged any prejudice as a result of the untimely notification, nor has any been shown. To the extent that Dingess requires more extensive notice as to potential downstream issues such as disability rating and effective date, the Board finds no prejudice to the veteran in proceeding with the present decision. Since the veteran's higher initial rating claims are being denied herein, such matters are moot. In any event, however, the October 2006 letter included applicable notice of the Dingess requirements. In response to this notice, the veteran informed VA later in October 2006 that he had no other information or evidence to present in support of his claims. In Dingess, the United States Court of Appeals for Veterans Claims (Veterans Court) held that, in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service- connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. See Dingess, 19 Vet. App. at 490-91. The Board notes that the Veterans Court, in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) clarified VA's notice obligations in increased rating claims. The instant appeal originates, however, from the grant of service connection for the disorders at issue. Consequently, Vazquez-Flores is inapplicable. Thus, the Board finds that VA met its duty to notify the veteran of his rights and responsibilities under the VCAA. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the veteran in obtaining evidence and affording him the opportunity to give testimony before the Board. It appears that all known and available records relevant to the issues here on appeal have been obtained and are associated with the veteran's claims file; the veteran does not contend otherwise. Thus, the Board finds that VA has done everything reasonably possible to notify and to assist the veteran and that no further action is necessary to meet the requirements of the VCAA. The veteran contends that that he is entitled to an initial rating greater than 10 percent for his service-connected right knee osteoarthritis. In general, disability evaluations are assigned by applying a schedule of ratings that represent, as far as can be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2007). Separate diagnostic codes identify the various disabilities and the criteria that must be met for specific ratings. The regulations require that, in evaluating a given disability, the disability be viewed in relation to its whole recorded history. 38 C.F.R. § 4.2 (2007); see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. November 19, 2007). The veteran's service-connected right knee osteoarthritis is currently evaluated as 10 percent disabling by analogy to 38 C.F.R. § 4.71a, DC 5003-5260 (degenerative arthritis and limitation of leg flexion). See 38 C.F.R. § 4.71a, DC 5003- 5260 (2007). If a veteran has separate and distinct manifestations relating to the same injury, he or she should be compensated under different diagnostic codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). The evaluation, however, of the same manifestation under different diagnostic codes is to be avoided. 38 C.F.R. § 4.14 (2006). The Rating Schedule may not be employed as a vehicle for compensating a claimant twice or more for the same symptomatology, since such a result would overcompensate the claimant for the actual impairment of his earning capacity and would constitute pyramiding. See Esteban, citing Brady v. Brown, 4 Vet. App. 203 (1993). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2006). Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 38 C.F.R. § 4.40 (2007). Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. 38 C.F.R. § 4.45 (2007). VA must consider "functional loss" of a musculoskeletal disability separately from consideration under the diagnostic codes; "functional loss" may occur as a result of weakness, fatigability, incoordination or pain on motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). VA must consider any part of the musculoskeletal system that becomes painful on use to be "seriously disabled." With any form of arthritis, painful motion is an important factor of disability. It is the intention of the Rating Schedule 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 (2007). Arthritis due to trauma and substantiated by x-ray findings is rated as degenerative arthritis under DC 5003. DC 5003 indicates that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate DC for the specific joint involved. When, however, the limitation of motion of the specific joint involved is non-compensable under the appropriate DC, a rating of 10 percent is applicable 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, DC 5003 provides a 10 percent evaluation for degenerative arthritis with x-rays evidence of the involvement of 2 or more major joints or 2 or more minor joint groups. The maximum evaluation of 20 percent is available under DC 5003 for degenerative arthritis with x-ray evidence of the involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations. See 38 C.F.R. § 4.71, DC's 5003, 5010 (2007). For the purpose of rating disability from arthritis, the knees are considered major joints. See 38 C.F.R. § 4.45(f) (2007). Under DC 5260, a 10 percent rating is assigned for leg flexion limited to 45 degrees. A 20 percent rating is assigned for leg flexion limited to 30 degrees. A maximum 30 percent rating is assigned for leg flexion limited to 15 degrees. See 38 C.F.R. § 4.71a, DC 5260 (2007). A review of the veteran's service medical records indicates that he denied any medical history of arthritis at his enlistment physical examination in January 1976. Clinical evaluation was completely normal. He was not treated for right knee osteoarthritis during active service. The veteran denied any medical history of arthritis at his separation physical examination in January 1979. Clinical evaluation was again completely normal. The veteran failed to report for VA examinations scheduled in July 2001 and in March and April 2002. VA x-rays of the veteran's right knee taken in January 2002 showed early degenerative changes with evidence of suprapatellar bursa effusion. VA x-rays of the veteran's right knee taken in April 2003 showed mild degenerative changes, small osteophytes at the posterior patella with narrowing of the patellofemoral joint space, and no joint effusion. X-rays taken in July 2003 showed degenerative osteoarthritis of the right knee with suprapatellar effusion. On private examination with H.B., M.D., in August 2003, the veteran complained of intermittent knee swelling. Physical examination of the right knee showed pain on flexion and extension accompanied by crepitus and flexion limited to 90 degrees. X-rays of the right knee showed sharpening of the tibial spines, narrowing of the medial compartment, and degenerative changes involving the patella. The impressions included osteoarthritis of the knees. In a September 2003 opinion, a VA examination stated that the veteran's traumatic arthritis of the right knee was due to his service-connected residuals of a right ankle sprain. VA x-rays taken in February 2004 showed narrowing of the patellofemoral and medial joint spaces, osteophytes at the posterior patella and at the distal femur and upper tibia, sharpening of the tibial spines, findings consistent with osteoarthritis, and no definite joint effusion. On VA examination in February 2007, the veteran complained of a 10-year history of right knee pain. The VA examiner reviewed the veteran's claims file, including his service medical records. The veteran also reported a history of right knee popping, swelling, and denied any history of locking. He denied any problems with his activities of daily living. He walked with a cane for less than 1 block. He also denied any specific flare-ups of right knee pain. Physical examination of the right knee showed a full range of motion from 0 to 110 degrees, actively and passively, with no change on repetition, mild pain, effusion, tenderness to palpation at the medial and lateral joint line and medial facet of the patella, and a positive patella grind. X-rays of the right knee showed no fracture, dislocation, or bony destructive lesion, osteophytes present in the patellofemoral joint, mild medial joint space narrowing, and osteophytes present in the lateral compartment. The VA examiner stated that, applying DeLuca, there was moderate discomfort in the right knee and it was conceivable that pain could further limit the veteran's function. However, this examiner stated that it was not possible to attempt to express "with any degree of medical certainty" the additional limitation of motion in terms of degrees. The impressions included moderate degenerative joint disease of the right knee. The Board finds that the preponderance of the evidence is against the veteran's claim of entitlement to an initial rating greater than 10 percent for service-connected right knee osteoarthritis. The post-service medical evidence shows that the veteran experiences, at most, mildly painful limitation of motion in the right knee due to arthritis. For example, x-rays taken since January 2002 have shown consistently the presence of osteophytes in the veteran's right knee. Dr. H.B. noted in August 2003 that the veteran's right knee flexion and extension was painful. The veteran's right knee flexion was limited to 90 degrees. This warrants a 10 percent rating pursuant to DC 5260. See 38 C.F.R. § 4.59. On VA examination in February 2007, the veteran's right knee had a full range of motion with no changes on passive, active, or repetitive range of motion testing; however, there was mild pain on repetitive range of motion testing of the right knee. Applying the DeLuca factors, the VA examiner concluded that the veteran experienced moderate right knee discomfort but was unable to express this in terms of degrees of additional lost motion. The veteran's limitation of flexion of the right knee warrants a 10 percent rating but no greater under DC 5260. A separate compensable evaluation for limitation of extension is not warranted pursuant to DC 5261. The veteran also contends that he is entitled to an initial rating greater than 10 percent prior to February 10, 2007, and 20 percent thereafter, including on an extraschedular basis, for residuals of right ankle sprain with chronic lateral instability. The veteran's residuals of right ankle sprain with chronic lateral instability are currently evaluated as 10 percent disabling, prior to February 10, 2007, and as 20 percent disabling effective February 10, 2007, by analogy to 38 C.F.R. § 4.71a, DC 5003-5271 (limited motion of the ankle). See 38 C.F.R. § 4.71a, DC 5003-5271 (2007). Under DC 5271, a 10 percent rating is available for moderate limited motion of the ankle. A maximum 20 percent rating is available under DC 5271 for marked limited motion of the ankle. Id. A review of the veteran's service medical records indicates that he reported a history of ankle sprain at his enlistment physical examination in January 1976. The in-service examiner stated that this referred to past ankle sprain, had resulted in no complications, and was not considered disabling. Clinical evaluation of the ankles was completely normal. He twisted his right ankle while playing basketball in December 1976, at which time x-rays showed soft tissue swelling and no evidence of fracture or dislocation. The assessment was a possible sprain. The veteran was given a short leg walking cast for 3 weeks. He twisted his right ankle again in March 1977, at which time objective examination of the right ankle showed swelling, tenderness to palpation, and decreased range of motion. The veteran reported no medical history of a right ankle sprain at his separation physical examination and clinical evaluation of his ankles was completely normal. The post-service medical evidence shows that VA x-rays of the right ankle taken in January 2002 revealed spurring sites of ligamentous insertion at the medial malleolus and plantar calcaneus. On VA examination in December 2002, the veteran complained of worsening right ankle sprain and right ankle arthritis. The VA examiner stated that there were no medical records available for review. The veteran reported that, since service, he had experienced intermittent ankle pain, swelling, and stiffness. He also reported that his ankle will turn over or give way unexpectedly at times during weightbearing. Physical examination of the right ankle showed a trace limp on the right, no evidence of redness, heat, or swelling, 10 degrees of dorsiflexion, 40 degrees of plantar flexion, slight to mild pain on motion, some tenderness to palpation in the lateral aspect, and a mild laxity. X-rays of the right ankle were normal. The VA examiner stated that there was mild pain on range of motion testing which could further limit function with activity and some mild lateral instability; however, it was not feasible to express this in terms of any additional limitation of motion. The impression was residuals of right ankle sprain with chronic lateral instability. On VA examination in July 2003, the veteran complained that his right ankle sprain had worsened with almost daily flareups of pain and twisting his ankle when walking on level ground. The veteran reported that he was not working secondary to his participation in a substance abuse recovery program. Physical examination of the right ankle showed approximately 18 degrees of dorsiflexion, 30 degrees of plantar flexion, some mild tenderness over the lateral malleolus, some mild pain with range of motion testing laterally, no anterior or medial pain, no swelling or erythema or other evidence of inflammation, no ankle effusion, no guarding of movement, a mild to moderate limp on the right, 5/5 strength, and full sensation in the foot. The VA examiner stated that there was no marked difference between the veteran's prior examination in December 2002 and his current examination. This examiner also stated that there was mild pain on range of motion testing which could further limit function with activity and some mild lateral instability; however, it was not feasible to express this in terms of any additional limitation of motion. The assessment was chronic right ankle sprain. On VA examination in February 2007, the veteran complained of constant right ankle swelling and pain. The VA examiner reviewed the veteran's claims file, including his service medical records. The veteran reported a history of right ankle throbbing and walked with a cane for less than 1 block. Physical examination of the right ankle showed normal sensation to light touch, no effusion, dorsiflexion to 5 degrees, plantar flexion to 20 degrees, no change on repetition, active and passive ranges of motion were the same, no tenderness to palpation over the medical and lateral malleoli, no effusion, tenderness to palpation on the anterior lateral aspect, intact tendons that were not tender to palpation, no tenderness to palpation at the Achilles tendon, 5/5 strength on inversion and eversion, and no evidence of abnormal weight bearing, crepitus, or instability. The VA examiner stated that it was difficult to assess strength with plantar flexion and dorsiflexion of the ankle secondary to pain. X-rays of the right ankle showed no fracture, dislocation, or bony destructive lesions and osteophytes on the medial aspect of the ankle at the tip of the medial malleolus. The VA examiner stated that there was moderate discomfort associated with examination of the right ankle and, although it was conceivable that pain could limit the veteran's function particularly on repetition, it was not feasible to express this in terms of additional limitation of motion with any degree of medical certainty. The assessment included right ankle sprain. The Board finds that the preponderance of the evidence is against the veteran's claim of entitlement to an initial disability rating greater than 10 percent prior to February 10, 2007, and 20 percent thereafter, including on an extraschedular basis, for residuals of right ankle sprain with chronic lateral instability. Prior to February 10, 2007, the medical evidence shows that the veteran's service- connected right ankle sprain residuals were, at most, moderately disabling. The veteran's service medical records show that he twisted his right ankle twice during active service; however, this injury was resolved at the veteran's service separation as he reported no history of ankle problems and no clinical evidence of right ankle problems was found. The post-service medical records show that, on VA examination in December 2002, the veteran's right ankle had 10 degrees of dorsiflexion, 40 degrees of plantar flexion, slight to mild pain on motion, some tenderness to palpation in the lateral aspect, and mild laxity. X-rays were normal and, although the VA examiner stated that there could be additional limitation of motion due to the veteran's right ankle pain, he was unable to express this in terms of degrees. On VA examination in June 2003, the VA examiner stated that there was no marked difference from the veteran's prior examination in December 2002. The veteran's right ankle had approximately 18 degrees of dorsiflexion, 30 degrees of plantar flexion, some mild tenderness over the lateral malleolus, some mild pain with range of motion testing laterally, no anterior or medial pain, no swelling or erythema or other evidence of inflammation, no ankle effusion, no guarding of movement, a mild to moderate limp on the right, 5/5 strength, and full sensation in the foot. It appears that a 10 percent rating assigned to the veteran's service-connected residuals of a right ankle sprain was based on his limited motion on dorsiflexion and mild laxity. Without evidence of marked right ankle disability, an initial rating greater than 10 percent prior to February 10, 2007, for right ankle sprain residuals is not warranted. On VA examination on February 10, 2007, the veteran's right ankle dorsiflexion had worsened to 5 degrees and plantar flexion was to 20 degrees. There was no change on repetition, active and passive ranges of motion were the same, no tenderness to palpation over the medical and lateral malleoli, no effusion, tenderness to palpation on the anterior lateral aspect, intact tendons that were not tender to palpation, no tenderness to palpation at the Achilles tendon, 5/5 strength on inversion and eversion, and no evidence of abnormal weight bearing, crepitus, or instability. The VA examiner stated that it was difficult to assess strength with plantar flexion and dorsiflexion of the ankle secondary to pain. X-rays of the right ankle showed osteophytes. The VA examiner stated that there was moderate discomfort associated with examination of the right ankle. It appears that a higher 20 percent rating for service- connected residuals of right ankle sprain with chronic lateral instability was assigned effective February 10, 2007, based on the veteran's x-rays showing right ankle arthritis and his moderate right ankle discomfort on range of motion testing. And, as the RO noted in May 2007, the 20 percent rating currently assigned to the veteran's service-connected residuals of right ankle sprain with chronic lateral instability is the maximum rating for limited motion of the ankle under DC 5271. Absent evidence of right ankle ankylosis, an initial rating greater than 20 percent effective February 10, 2007, under an analogous DC for ankle disabilities is not warranted. See 38 C.F.R. § 4.71a, DC 5270 (ankle ankylosis). With regard to the veteran's entitlement to higher initial ratings for service-connected residuals of right ankle sprain with chronic lateral instability on an extraschedular basis, the Board notes that the potential application of various provisions of Title 38 of the Code of Federal Regulations has been considered whether or not they were raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991), including 38 C.F.R. § 3.321(b)(1). The evidence of record, however, does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1) (2007). In this regard, the Board finds that there has been no showing by the veteran that his service-connected right ankle residuals has resulted in marked interference with his employment or necessitated frequent periods of hospitalization beyond that contemplated by the rating schedule. The veteran has been employed intermittently throughout the pendency of this appeal and did not indicate any significant work impairment due to his service-connected right ankle residuals when examined during the first period of time at issue. In July 2003, the veteran reported that he had been unemployed for the past 3 years secondary to his participation in a substance abuse recovery program. And the current 20 percent rating contemplates moderate impairment. In the absence of such factors, the Board finds that the criteria for submission for assignment of an extraschedular rating for either period of time in question pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). As noted above, there is no evidence that the disability evaluations assigned to the veteran's service-connected right knee osteoarthritis or service-connected right ankle residuals should be increased for any other separate period based on the facts found during the whole appeal period. The evidence of record from the day the veteran filed the claim to the present supports the conclusion that the veteran is not entitled to additional increased compensation during any time within the appeal period. As the preponderance of the evidence is against the veteran's claims, the benefit-of- the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990). ORDER Entitlement to an initial disability rating greater than 10 percent for right knee osteoarthritis is denied. Entitlement to an initial disability rating greater than 10 percent prior to February 10, 2007, and 20 percent thereafter, including on an extraschedular basis, for residuals of right ankle sprain with chronic lateral instability is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs