Citation Nr: 1007472 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 05-21 974 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial rating greater than 10 percent for degenerative joint disease of the left knee. 2. Entitlement to an initial compensable rating for right knee sprain. 3. Entitlement to an initial compensable rating for bilateral shoulder sprain. (The issues of entitlement to initial compensable ratings for chronic urethritis and for asthmatic bronchitis are the subject of a separate Board decision.) REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from November 1975 to July 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2005 rating decision which granted, in pertinent part, the Veteran's claims of service connection for degenerative joint disease of the left knee, assigning a 10 percent rating effective June 16, 2004, and also granted service connection for right knee sprain and bilateral shoulder sprain, assigning zero percent ratings for these disabilities effective June 16, 2004. The Veteran disagreed with this decision in July 2005, seeking an initial rating greater than 10 percent for degenerative joint disease of the left knee and initial compensable ratings for right knee sprain and bilateral shoulder sprain. In April 2007, the Board remanded the Veteran's appeal to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. A review of the claims file shows that there has been substantial compliance with the Board's April 2007 remand. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. The competent medical evidence shows that the Veteran's service-connected left knee disability is manifested by, at worst, slight recurrent subluxation or lateral instability. 3. The competent medical evidence shows that the Veteran's service-connected right knee disability is manifested by an almost full range of motion and normal knee x-rays; there is no evidence of limited right knee flexion. 4. The competent medical evidence shows that the Veteran's service-connected bilateral shoulder disability is manifested by, at worst, complaints of pain; there is no evidence of impairment of the clavicle or scapula in either shoulder. CONCLUSIONS OF LAW 1. The criteria for an initial rating greater than 10 percent for degenerative joint disease of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5257 (2009). 2. The criteria for an initial compensable rating for right knee sprain have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5260 (2009). 3. The criteria for an initial compensable rating for bilateral shoulder sprain have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5203 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) 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. The Veteran's higher initial rating claims for bilateral knee and shoulder disabilities are "downstream" elements of the RO's grant of service connection for these disabilities in the currently appealed rating decision. 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 June 2004, VA notified the Veteran of the information and evidence needed to substantiate and complete these claims, 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, 16 Vet. App. at 187. The Board notes that the United States Court of Appeals for Veterans Claims (Veterans Court), in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), clarified VA's notice obligations in increased rating claims. The Federal Circuit recently reversed the Veterans Court's decision in Vazquez-Flores, finding that VA is not required to tailor § 5103(a) notice to individual Veterans or to notify them that they may present evidence showing the effect that worsening of a service- connected disability has on their employment and daily life for proper claims adjudication. For an increased rating claim, section § 5103(a) now requires that the Secretary notify claimants generally that, to substantiate a claim, they must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd sub. nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (holding that notice specific to individual Veterans is no longer required in increased compensation claims). The appeal for higher initial ratings for bilateral knee and shoulder disabilities originates, however, from the grant of service connection for these disabilities. Consequently, Vazquez-Flores is inapplicable. With respect to the timing of the notice, the Board points out that the Veterans 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 decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The June 2004 VCAA notice letter was issued to the Veteran and his service representative prior to the currently appealed rating decision issued in June 2005. Because all of the Veteran's claims are being denied in this decision, any question as to the appropriate disability rating or effective date is moot. See Dingess, 19 Vet. App. at 473. And any defect in the notices provided to the Veteran and his service representative has not affected the fairness of the adjudication. See Mayfield, 444 F.3d at 1328. The Board acknowledges that the Veteran was not provided with notice of the Dingess requirements until May 2007. To the extent that Dingess requires more extensive notice as to potential downstream issues such as disability rating and effective date, because the currently appealed rating decision was fully favorable to the Veteran on the issue of service connection for bilateral knee and shoulder disabilities, and because the Veteran's higher initial rating claims are being denied in this decision, the Board finds no prejudice to the Veteran in proceeding with the present decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In Dingess, the 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 observes that the Federal Circuit had held previously that any error in VCAA notice should be presumed prejudicial and VA must bear the burden of proving that such an error did not cause harm. Sanders v. Nicholson, 487 F.3d 881 (2007). The Supreme Court recently reversed the Federal Circuit's decision in Sanders, finding it unlawful in light of 38 U.S.C.A. § 7261(b)(2) which provides that, in conducting review of decision of the Board, a court shall take due account of the rule of prejudicial error. The Supreme Court essentially held in Sanders that - except in cases where VA has failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim - (1) the burden of proving harmful error must rest with the party raising the issue; (2) the Federal Circuit's presumption of prejudicial error in Sanders imposed an unreasonable evidentiary burden upon VA and encouraged abuse of the judicial process; and (3) determinations on the issue of harmless error should be made on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Veteran has not contended that any prejudicial notice error occurred in this case. Accordingly, in light of the Supreme Court's recent decision in Sanders, the Board finds that any failure to satisfy the duty to notify is not prejudicial. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), rev'd sub nom., Shinseki v. Sanders, 129 S. Ct. 1696 (2009). 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 RO and the Board although he declined to do so. It appears that all known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise. As to any duty to provide an examination and/or seek a medical opinion, the Board notes that in the case of a claim for disability compensation, the assistance provided to the claimant shall include providing a medical examination or obtaining a medical opinion when such examination or opinion is necessary to make a decision on the claim. An examination or opinion shall be treated as being necessary to make a decision on the claim if the evidence of record, taking into consideration all information and lay or medical evidence (including statements of the claimant) contains competent evidence that the claimant has a current disability, or persistent or recurring symptoms of disability; and indicates that the disability or symptoms may be associated with the claimant's act of service; but does not contain sufficient medical evidence for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran has been provided with VA examinations which address the current nature and severity of his service-connected bilateral knee and shoulder disabilities. Pursuant to the Board's April 2007 remand, VA also obtained a June 2007 addendum to a VA examination report dated in April 2005 concerning any additional functional loss that the Veteran experienced due to his service-connected knee and shoulder disabilities. See DeLuca v. Brown, 8 Vet. App. 202 (1995). In summary, VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA. Legal Criteria The Veteran contends that his service-connected bilateral knee and shoulder disabilities are each more disabling than currently evaluated. 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 (2009). 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 (2009); see Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as in the instant case, 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). The Veteran's service-connected degenerative joint disease of the left knee currently is evaluated as 10 percent disabling by analogy to 38 C.F.R. § 4.71a, DC 5257 (other knee impairment). 38 C.F.R. § 4.71a, DC 5257 (2009). The Veteran's service-connected right knee sprain currently is evaluated as zero percent disabling (non-compensable) by analogy to 38 C.F.R. § 4.71a, DC 5260 (limitation of leg flexion). 38 C.F.R. § 4.71a, DC 5260 (2009). The Veteran's service-connected bilateral shoulder sprain currently is evaluated as zero percent disabling in each shoulder by analogy to 38 C.F.R. § 4.71a, DC 5203 (impairment of clavicle or scapula). 38 C.F.R. § 4.71a, DC 5203 (2009). 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 (2009). 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 (2009). 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 (2009). 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." If a Veteran has separate and distinct manifestations relating to the same injury, he should be compensated under different diagnostic codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). Where a Veteran has a limitation of flexion and a limitation of extension, the limitations must be rated separately to adequately compensate for functional loss, which comports with the principle underlying Esteban. See VAOPGCPREC 9- 2004. The evaluation, however, of the same manifestation under different diagnostic codes is to be avoided. 38 C.F.R. § 4.14 (2009). 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). VA's General Counsel has held that limitation of motion and instability of the knee involve different symptomatology and separate ratings specifically are allowed under the Rating Schedule with x-ray evidence of arthritis. See VAOGCPREC Op. No. 23- 97 (July 1, 1997), 62 Fed. Reg. 63,604 (1997); and VAOGCPREC Op. No. 9-98 (Aug. 14, 1998), 63 Fed. Reg. 56,704 (1998). The standard range of motion for the shoulder is flexion to 180 degrees, abduction to 180 degrees, and internal and external rotation each to 90 degrees. 38 C.F.R. § 4.71a, Plate I (2009). The standard range of motion for the knee is flexion to 140 degrees and extension to 0 degrees. 38 C.F.R. § 4.71, Plate II (2009). A 10 percent rating is assigned under DC 5257 for slight recurrent subluxation or lateral instability. A 20 percent rating is assigned for moderate recurrent subluxation or lateral instability. A maximum 30 percent rating is assigned for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257 (2009). A zero percent rating is assigned under DC 5260 for leg flexion limited to 60 degrees. 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. 38 C.F.R. § 4.71a, DC 5260 (2009). A 10 percent rating is assigned under DC 5203 for malunion of the clavicle or scapula on the major or minor side. A 10 percent rating also is assigned for non-union of the clavicle or scapula without loose movement on the major or minor side. A maximum 20 percent rating is assigned for non- union of the clavicle or scapula with loose movement on the major or minor side. A maximum 20 percent rating also is assigned for dislocation of the clavicle or scapula on the major or minor side. Ratings are assigned under DC 5203 for the major (dominant) or minor (non-dominant) side. DC 5203 also provides that clavicle or scapula impairment will be rated on the impairment of function of the contiguous joint. 38 C.F.R. § 4.71a, DC 5203 (2009). Factual Background & Analysis The Veteran's service treatment records show that he denied all relevant medical history at his enlistment physical examination in November 1975. Clinical evaluation was normal. The Veteran's history and clinical evaluation results were unchanged on periodic physical examination in December 1983, August 1987, and April 1992. Although the Veteran complained of bilateral knee stiffness on periodic physical examination in July 1993, clinical evaluation showed a full range of motion in the knees and no limits on activity. Following outpatient treatment in May 1996, the Veteran was diagnosed as having bilateral shoulder contusion/strain. At the Veteran's separation physical examination in April 1997, he complained of bilateral knee giving way but denied any in-service trauma. He also reported that his left shoulder had been bumped by a 5-ton truck in 1991 and he had experienced aching ever since that incident. Physical examination showed a full range of motion in all extremities and minimal crepitus in both shoulders. The post-service medical evidence shows that, on VA joints examination in April 2005, the Veteran complained of bilateral knee pain since active service which was 6/10 on a pain scale and bilateral shoulder pain "since the motor vehicle accident in 1991" which was 7/10 on a pain scale. The Veteran stated that he experienced occasional bilateral knee swelling but no giving way. He denied using any knee braces. He also reported experiencing bilateral knee pain if he stood for more than 15 minutes or if he walked for 4 blocks. He stated that he was unable to run any more and had some knee discomfort going up and down stairs. He also stated that he experienced bilateral shoulder pain if he lifted his arms above his head, if he did yard work, or if he lifted more than 20 pounds. He reported that x-rays of the knees and shoulders had been negative. Physical examination of the right knee in April 2005 showed a range of motion from 0 to 130 degrees, medial, lateral, and inferior tenderness, no fluid, slight crepitus with flexion, and no laxity. Physical examination of the left knee showed a range of motion from 0 to 130 degrees, medial and inferior tenderness, no fluid, moderate crepitus with flexion, and slight laxity with valgus compression. X-rays of the shoulders were symmetrical with no fractures or dislocations. Joint spaces were maintained. And normal rotation motions were noted. X-rays of both knees showed no fractures or dislocations, maintained joint spaces, and no effusions. The examiner's impressions were chronic right knee sprain with moderate subjective complaints and minimal disability, degenerative joint disease of the left knee with knee pain and slight laxity, and chronic bilateral shoulder sprain with moderate symptoms, minimal objective findings, and minimal disability with progression. In statements on his July 2005 notice of disagreement, the Veteran stated that the April 2005 VA examination had been "a very painful ordeal." In a June 2007 addendum to the April 2005 VA examination report, provided in response to the Board's April 2007 remand, the VA examiner who had seen the Veteran in April 2005 opined that, after reviewing the claims file and his prior evaluation of the Veteran's knees and shoulders, it was less likely than not that there was any additional functional loss of the left knee, right knee, left shoulder, and right shoulder due to pain or flare-ups of pain. It also was less likely than not that there was any additional loss of motion due to weakness, excess fatigability, incoordination, "or any other relevant symptom or sign." With respect to the Veteran's knees, the VA examiner's rationale was that x-rays of the Veteran's knees had been negative in the past and the April 2005 x-rays had been normal. This examiner noted that the suggestion of left knee laxity with valgus compression was equivocal and minimal. With respect to the Veteran's shoulders, this examiner's rationale was that prior shoulder x-rays had been negative and the April 2005 physical examination results showed "no significant degree of change." This VA examiner also stated in June 2007 that he had omitted range of motion testing results for both shoulders in the April 2005 VA examination report. He stated that the Veteran's range of motion in both shoulders had been from 0 to 180 degrees, right shoulder abduction from 0 to 135 degrees, internal rotation was to T10, and external rotation was to 90 degrees. There was slight bicupital tenderness in the right shoulder. The left shoulder had shown an angular scar on the superior surface measuring 2 centimeters that was well-healed. There was mild bicupital tenderness in the left shoulder. The Board finds that the preponderance of the evidence is against the Veteran's claim for an initial rating greater than 10 percent for degenerative joint disease of the left knee. The competent medical evidence shows that the Veteran's service-connected left knee disability is manifested by, at worst, slight recurrent subluxation or lateral instability. VA examination in April 2005 showed that the Veteran's left knee had an almost full range of motion (130 out of 140 degrees). See 38 C.F.R. § 4.71a, Plate II. The VA examiner who saw the Veteran in April 2005 subsequently opined in a June 2007 addendum that that the suggestion of left knee laxity with valgus compression seen in April 2005 was minimal. This examiner also opined in June 2007 that it was less likely than not that there was any additional functional loss of the left knee due to pain or flare-ups of pain. It also was less likely than not that there was any additional loss of motion due to weakness, excess fatigability, incoordination, "or any other relevant symptom or sign." See DeLuca, 8 Vet. App. at 202. In summary, absent objective evidence of moderate recurrent subluxation or lateral instability (i.e., a 20 percent rating under DC 5257), the Board finds that the criteria for an initial rating greater than 10 percent for degenerative joint disease of the left knee have not been met. See 38 C.F.R. § 4.71a, DC 5257 (2009). The Board also finds that the preponderance of the evidence is against the Veteran's claim for an initial compensable rating for right knee sprain. The competent medical evidence shows that the Veteran's service-connected right knee disability is manifested by, at worst, complaints of pain, tenderness, and an almost full range of motion from 0 to 130 degrees (as seen on VA examination in April 2005). See 38 C.F.R. § 4.71a, Plate II. At that examination, the VA examiner noted that, although the Veteran complained of right knee pain, there were minimal objective symptoms on physical examination of the right knee. X-rays were normal. In June 2007, the VA examiner who had seen the Veteran in April 2005 stated that it was less likely than not that there was any additional functional loss of the right knee due to pain or flare-ups of pain. It also was less likely than not that there was any additional loss of motion due to weakness, excess fatigability, incoordination, "or any other relevant symptom or sign." See DeLuca, 8 Vet. App. at 202. In summary, absent objective evidence of right leg flexion limited to 45 degrees or less (i.e., at least a 10 percent rating under DC 5260), the Board finds that the criteria for an initial compensable rating for right knee sprain have not been met. See 38 C.F.R. § 4.71a, DC 5260 (2009). The Board finally finds that the preponderance of the evidence is against the Veteran's claim for an initial compensable rating for bilateral shoulder sprain. The Board notes initially that the Veteran is in receipt of a zero percent (non-compensable) rating for each shoulder under DC 5203. See 38 C.F.R. § 4.71a, DC 5203 (2009). The competent medical evidence shows that the Veteran's service- connected bilateral shoulder sprain is not manifested by clavicle or scapula impairment such that an initial compensable rating is warranted for either shoulder. VA examination in April 2005 showed a full range of motion in both shoulders on flexion and external rotation (as the VA examiner noted in his June 2007 addendum to the April 2005 VA examination report). See 38 C.F.R. § 4.71a, Plate I. The VA examiner also noted in June 2007 that the Veteran's April 2005 physical examination results showed "no significant degree of change" in either of his shoulders from prior x- rays which had been negative. There was bicupital tenderness in both shoulders which the VA examiner characterized as slight in the right shoulder and as mild in the left shoulder. This examiner also opined in June 2007 that it was less likely than not that there was any additional functional loss of the left or right shoulder due to pain or flare-ups of pain. It also was less likely than not that there was any additional loss of motion due to weakness, excess fatigability, incoordination, "or any other relevant symptom or sign." See DeLuca, 8 Vet App. at 202. In summary, absent objective evidence of malunion of the clavicle or scapula in either of the Veteran's shoulders, (i.e., a 10 percent rating under DC 5203), the Board finds that the criteria for an initial compensable rating for bilateral shoulder sprain have not been met. See 38 C.F.R. § 4.71a, DC 5203 (2009). The Board must consider whether the Veteran is entitled to consideration for referral for the assignment of extraschedular ratings for his service-connected bilateral knee and shoulder disabilities. 38 C.F.R. § 3.321 (2009); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the Veteran or reasonably raised by the record). An extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service- connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. The Board finds that schedular evaluations assigned for the Veteran's service-connected bilateral knee and shoulder disabilities are not inadequate in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of these disabilities. As discussed above, the objective evidence shows that the Veteran's service- connected right knee and bilateral shoulder disabilities are not compensably disabling. The evidence also does not show that the Veteran's service-connected left knee disability is more than minimally disabling. Moreover, the evidence does not demonstrate other related factors such as marked interference with employment and frequent hospitalization. In light of the above, the Board finds that the criteria for submission for assignment of extraschedular ratings 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 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); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an initial rating greater than 10 percent for degenerative joint disease of the left knee is denied. Entitlement to an initial compensable rating for right knee sprain is denied. Entitlement to an initial compensable rating for bilateral shoulder sprain is denied. ____________________________________________ M. G. MAZZUCCHELLI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs