Citation Nr: 1134849 Decision Date: 09/16/11 Archive Date: 09/23/11 DOCKET NO. 05-00 329 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a previously denied claim of entitlement to service connection for degenerative disc disease (DDD) of the lumbar spine, to include as secondary to service-connected right knee chondromalacia; and if so, whether service connection is warranted. 2. Entitlement to a disability rating in excess of 10 percent for right knee chondromalacia. 3. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. A. Kennerly, Counsel INTRODUCTION The appellant served on active duty from October 1973 to October 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision of the New Orleans, Louisiana, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the benefits sought on appeal. The appellant submitted a notice of disagreement (NOD) with this determination in October 2004. In December 2004, the RO issued a statement of the case (SOC) pertaining to the right knee and TDIU claims. The appellant submitted a timely VA Form 9 [Substantive Appeal] for these two issues in December 2004. The RO issued a SOC pertaining to the appellant's petition to reopen his claim of entitlement to service connection for a low back disability in January 2005. It does not appear that the appellant submitted a Substantive Appeal with respect to this issue; however, the Board has considered the case of Percy v. Shinseki, 23 Vet. App 37 (2009), which distinguished the issues of a timely NOD versus a timely Substantive Appeal. In that case, the United States Court of Appeals for Veterans Claims (Court) confirmed that the absence of a timely NOD is a jurisdictional bar to consideration of a veteran's claim. However, the Court also confirmed that an untimely Substantive Appeal is NOT a jurisdictional bar to consideration of a veteran's claim, and that the RO and the Board MAY accept a Substantive Appeal, even if it is not timely. In the Percy case, the Court specifically found that, because the RO had never addressed the issue of timeliness in the SOC, and because the veteran was not informed that there was a timeliness issue until his claim was before the Board, that the RO had essentially waived any objections it might have offered to timeliness, and had implicitly accepted the veteran's appeal. The Board finds that the facts of the present case are similar to that in Percy. The RO accepted subsequent correspondence from the appellant after the issuance of the SOC for his lumbar spine disability, and certified this issue to the Board for adjudication. Accordingly, the Board finds this issue to be appropriately on appeal. With regard to the appellant's petition to reopen his claim for a low back disability, to establish jurisdiction over this issue, the Board must first consider whether new and material evidence has been submitted to reopen the claim. See 38 U.S.C.A. §§ 5108, 7104 (West 2002 & Supp. 2010). The Board must proceed in this fashion regardless of the RO's actions. See Barnett v. Brown, 83 F.3rd 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92. As discussed fully under the analysis section, new and material evidence has not been submitted to reopen the claim. The appellant was scheduled for Board video conference hearings in March 2007 and June 2008. He failed to report for these hearings and provided no explanation for his June 2008 failure to report. His hearing request, therefore, is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2010). These claims came before the Board in October 2009. At that time, the Board determined that additional evidentiary development was necessary prior to the adjudication of the claims. Specifically, the Board requested the Appeals Management Center (AMC): provide the appellant with notice of VA's duties to notify and assist him, consistent with the holdings in Kent v. Nicholson, 20 Vet. App. 1 (2006), and Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); associate a copy of the September 2004 rating decision that declined to reopen the appellant's claim of entitlement to service connection for a low back disability; obtain any available VA and private treatment records for the appellant dated from December 2004 to the present; and to schedule the appellant for a new VA joints examination. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. Evidence received since the June 2002 rating action is new, but does not relate to unestablished facts necessary to substantiate the claim of whether DDD of the lumbosacral spine, to include as secondary to service-connected right knee chondromalacia, was incurred or aggravated in service, and does not raise a reasonable possibility of substantiating the claim. 2. The appellant failed to report, without good cause, for VA joints examinations, scheduled in March 2004, September 2004, December 2004, February 2005, August 2005, March 2010, and June 2011, which were deemed necessary to determine the current severity of his right knee disability, as well as to determine entitlement to TDIU. 3. The appellant's service-connected right knee chondromalacia is manifested by arthritis and subjective complains of pain, giving way and swelling; a diminished range of motion has not been identified. 4. The appellant is service-connected for right knee chondromalacia, evaluated as 10 percent disabling; the record does not show that the appellant is unable to obtain and/or maintain substantially gainful employment due solely to his service-connected disability on a schedular or extraschedular basis. CONCLUSIONS OF LAW 1. New and material evidence has not been received for the claim of entitlement to service connection for DDD of the lumbosacral spine, to include as secondary to service-connected right knee chondromalacia; the claim is not reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2010); 38 C.F.R. § 3.156(a) (2010). 2. The criteria for a disability rating in excess of 10 percent for chondromalacia of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5256-5263 (2010). 3. The criteria for assignment of a TDIU, including on an extraschedular basis, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.326, 3.340, 3.655, 4.16 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. The Veterans Claims Assistance Act of 2000 (VCAA) With respect to the appellant's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. In addition, the case of Kent v. Nicholson, 20 Vet. App. 1 (2006), requires that, prior to the adjudication of a petition to reopen a service connection claim, the appellant be given notice of the elements of service connection, the elements of new and material evidence, and the reasons for the prior denial. With respect to the appellant's petition to reopen his claim of entitlement to service connection for a low back disability, the March 2004 letter provided notice of the elements of new and material evidence; however, the reasons for the prior denial were not provided. Subsequent letters dated in October 2010 and April 2011 provided notice of the reasons for the prior final denial. Although these letters were not sent prior to initial adjudication of the appellant's claim, this was not prejudicial to him, since he was subsequently provided adequate notice, he was provided ample time to respond with additional argument and evidence, the claim was readjudicated and an additional supplemental statement of the case (SSOC) was provided to the appellant in July 2011. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). The criteria of Kent are satisfied. See Kent, supra. With respect to the appellant's claims of entitlement to an increased disability rating for his right knee and TDIU, prior to and following the initial adjudication of the claims, letters dated in March 2004, January 2010, February 2010, October 2010 and April 2011 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2010); Quartuccio, at 187. The Court held that to satisfy the first Quartuccio element for an increased-compensation claim, section 5103(a) compliant notice must meet a four part test laid out in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The U.S. Court of Appeals for the Federal Circuit overruled Vazquez-Flores in part, striking claimant-tailored and "daily life" notice elements. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Thus modified, VA must notify the claimant that, 1) to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability, 2) a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment, and 3) provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. See Vazquez-Flores, 22 Vet. App. at 43, overruled in part sub. nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). This was accomplished by the January 2010 and February 2010 notice letters. Although this letter was not sent prior to initial adjudication of the appellant's right knee claim, this was not prejudicial to him, since he was subsequently provided adequate notice, he was provided ample time to respond with additional argument and evidence, the claim was readjudicated and an additional SSOC was provided to the appellant in July 2011. See Prickett, supra. The notice letters dated in January 2010, February 2010, October 2010, and April 2011, informed the appellant of how VA determines the appropriate disability rating or effective date to be assigned when a claim is granted, consistent with the holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Prickett, supra. All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (2010) (harmless error). In view of the foregoing, the Board finds that the appellant was notified and aware of the evidence needed to substantiate his claims, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. The Board also concludes VA's duty to assist has been satisfied. The appellant's service treatment records and VA medical records are in the file. The appellant has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. In attempts to reopen previously denied claims for service connection, the duty to assist does not include provision of a medical examination or opinion, unless new and material evidence has been secured. See 38 C.F.R. § 3.159 (c)(4)(iii) (2010). The appellant was not afforded an examination in association with his petition to reopen. As discussed below, the Board concludes that new and material evidence has not been submitted on this claim. Accordingly, there is no duty to provide an examination and no error exists. See id. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the appellant. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the appellant's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2010). In the present case, VA has made exhaustive attempts to schedule the appellant for VA examinations to determine the current state of his right knee disability as well as its impact on his ability to maintain employment. Specifically, VA has scheduled the appellant for seven VA examinations, for which he has failed to report. The Board notes that it is the appellant's responsibility to report for any scheduled examination and to cooperate in the development of the case, as the consequences of failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158 and 3.655. Moreover, the Board points out that the Court has held that the "duty to assist" is not a one-way street, and that a claimant cannot stand idle when the duty is invoked by failing to provide important information or otherwise failing to cooperate. See Wood v. Derwinski, 1 Vet. App. 190 (1991) (aff'd on reconsideration, 1 Vet. App. 460 (1991); Olson v. Principi, 3 Vet. App. 480, 483 (1992). Additionally, the Board finds there has been substantial compliance with its October 2009 remand directives. The Board notes that the Court has recently noted that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand.) The record indicates that the AMC provided the appellant with notice of VA's duties to notify and assist him, consistent with the holdings in Kent v. Nicholson, 20 Vet. App. 1 (2006), and Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); determined that a copy of the September 2004 rating decision that denied the appellant's petition to reopen the claim of entitlement to service connection for a low back disability was already in the record; obtained all available VA treatment records for the appellant dated from December 2004 to the present; and scheduled the appellant for a new VA joints examination, to which he failed to report. The AMC later issued a SSOC in July 2011. Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). Therefore, in light of the foregoing, the Board will proceed to review and decide the claims based on the evidence that is of record consistent with 38 C.F.R. § 3.655 (2010). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). Importantly, the Board notes that the appellant is represented in this appeal. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006). The appellant has submitted argument and evidence in support of the appeal. Based on the foregoing, the Board finds that the appellant has had a meaningful opportunity to participate in the adjudication of his claims such that the essential fairness of the adjudication is not affected. II. New and Material Evidence The appellant contends that he currently suffers from DDD of the lumbosacral spine, to include as secondary to his service-connected right knee chondromalacia. The appellant filed his original claim of entitlement to service connection for DDD of the lumbar spine in March 2002. He stated that his current disability was either the direct result of an in-service accident, where his D-ring broke while rappelling and he fell on a rock, or secondary to his service-connected right knee chondromalacia. In June 2002, the RO determined that while the appellant was seen in service three to four times for complaints of low back pain with spasms, there were no x-ray findings of any disc or joint disease of the spine. Further, upon his discharge in November 1983, the clinical evaluation noted the appellant's spine to be normal and the appellant himself denied experiencing any recurrent back pain. Based on a May 2001 magnetic resonance imaging (MRI) report of the lumbar spine, the appellant was diagnosed with DDD with posterior central disc protrusion at L4-L5, borderline stenosis in the central canal, and a disc bulge versus posterior central disc protrusion at L5-S1. As a result, the appellant was afforded a VA spine examination in May 2002. The appellant reported his in-service fall while rappelling, and stated that he was treated by a field medic and subsequently transferred to a hospital. X-rays were allegedly taken, but the appellant stated that he was not informed of any disability. He was then treated with a heating pad and medication. Years after his discharge from service, the appellant suffered an injury to his low back in the course of his employment, for which he filed a workers' compensation claim. After this accident, the appellant reported taking pain medication. The VA examiner diagnosed the appellant with a bulging disc at L4-L5, as seen on his 2001 MRI report, with minimal loss of function due to pain and no range of motion limitation. Overall, the VA examiner concluded that the appellant's current back disorder was not likely related to his in-service complaints of back pain, and were more likely related to his post-service employment injury. The appellant's in-service injury was considered to be acute and transitory, and resolved with no chronic low back disorder shown upon his separation from service. The currently shown DDD of the lumbar spine was not shown in service and was not shown to be related to any low back complaints in service. Accordingly, the June 2002 rating decision denied the appellant's claim. He did not appeal this determination and it became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2010). In general, RO decisions are final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1100 (2010). Pursuant to 38 U.S.C.A. § 5108 (West 2002), a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence, that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a) (2010). An adjudicator must follow a two-step process in evaluating previously denied claims. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA's statutory duty to assist the appellant in the development of his claim has been fulfilled. See 38 U.S.C.A. § 5108 (West 2002); Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). In addition, for the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Therefore, it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element, as it would "force the veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA." Medical evidence received since the June 2002 denial of the appellant's claim consists only of several VA treatment records, wherein the appellant noted that he suffered from low back pain. This new evidence is duplicative of evidence already of record. The only evidence in support of the appellant's claim consists of his own lay statements alleging that he currently suffers from a low back disability that is either the result of his time in service or secondary to his service-connected right knee disability. The Board acknowledges that the appellant is competent to give evidence about what he experiences; for example, he is competent to discuss his low back pain. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). With respect to the appellant's contentions that he has experienced low back pain since service, which increased with his right knee pain, the Board observes that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). See also Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology). In this case, the Board finds the appellant competent to discuss his low back pain. Unfortunately, however, the appellant's lay testimony has not been supported by an opinion by a medical professional. Accordingly, the Board finds that the appellant's lay statements are outweighed by the post-service treatment records and are not probative. Despite the relatively low bar set by Shade to reopen a previously denied claim, the Board finds that the evidence received since June 2002, does not meet this standard and does not raise a reasonable possibility of substantiating the claim. Therefore, the evidence is not material. The appeal to reopen the appellant's claim of entitlement to service connection for DDD of the lumbosacral spine, to include as secondary to his service-connected right knee disability, is denied. III. Increased Disability Rating The appellant contends that his right knee chondromalacia presents a greater degree of impairment than the currently assigned 10 percent disability evaluation, including as due to the impact the disability has on his ability to work. Relevant Law and Regulations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2010). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis in this decision is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Where there is separate and distinct symptomatology of a single condition, it should be separately rated. Where the symptomatology of a condition is duplicative or overlapping with symptomatology of another condition, it may not receive a separate evaluation. See 38 C.F.R. §§ 4.14, 4.25 (2010); Esteban v. Brown, 6 Vet. App. 259 (1994). The Board notes that the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as a veteran's relevant medical history, his current diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2010). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. See 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Schedular Consideration The appellant's service-connected chondromalacia is currently rated 10 percent disabling under Diagnostic Codes 5099-5010. The RO assigned Diagnostic Code 5099 pursuant to 38 C.F.R. § 4.27, which provides that unlisted disabilities requiring rating by analogy will be coded first by the first two numbers of the most closely related body part and "99". See 38 C.F.R. § 4.20 (2010) [when an unlisted condition is encountered it will be permissible to rate it under a closely related disease or injury, in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous]. The RO determined that the most closely analogous Diagnostic Code is 38 C.F.R. § 4.114, Diagnostic Code 5010 [traumatic arthritis]. Diagnostic Code 5010, instructs to rate as degenerative arthritis. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Under 38 C.F.R. § 4.71a, Diagnostic Code 5260, a noncompensable evaluation is assigned for leg flexion limited to 60 degrees. A 10 percent evaluation is warranted where flexion of the knee is limited to 45 degrees. A 20 percent evaluation is warranted where flexion is limited to 30 degrees. A maximum 30 percent evaluation is warranted where flexion is limited to 30 degrees. Under Diagnostic Code 5261, limitation of extension of the leg provides a non-compensable rating if extension is limited to five degrees, a 10 percent rating if limited to 10 degrees, a 20 percent rating if limited to 15 degrees, a 30 percent rating if limited to 20 degrees, a 40 percent rating if limited to 30 degrees, and a 50 percent rating if limited to 45 degrees. In this regard, the Board observes that normal range of motion for the knee is defined as follows: flexion, zero degrees to 140 degrees; and extension, 140 degrees to zero degrees. See 38 C.F.R. § 4.71, Plate II (2010). Where, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2010). The Court has also held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 (2010) and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45 (2010). See, in general, DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that the disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. According to this regulation, it is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. The provisions of 38 C.F.R. § 4.45 state that, when evaluating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. As the appellant's right knee disability is currently rated as 10 percent disabling, Diagnostic Code 5263 (Genu recurvatum) is not for application as it does not allow for a higher disability rating (i.e., in excess of 10 percent). Furthermore, the Board observes that the evidence of record does not indicate that this disability is present. There is also no competent and credible evidence indicating right knee functional impairment comparable to ankylosis, even with consideration of additional functional impairment due to pain; Diagnostic Code 5256 is therefore not applicable. [Ankylosis is "immobility and consolidation of a joint due to disease, injury, surgical procedure." See Lewis v. Derwinski, 3 Vet. App. 259 (1992)]. As the record does not indicate that the appellant has had dislocated cartilage or underwent a removal of the cartilage in his knee, Diagnostic Codes 5258 and 5259 are not for application. The evidence of record also does not indicate that the appellant has tibia and fibula impairment and Diagnostic Code 5262 therefore does not apply. Arthritis and instability of the knee may be rated separately. See VAOPGCPREC 23-97. Since instability of the knee has not been identified by competent evidence (in fact, as discussed below, during the May 2002 VA examination, the appellant specifically indicated that instability was not present), a separate rating under Diagnostic Code 5257 is not appropriate. While Diagnostic Code 5257 also contemplates a recurrent subluxation of the knee, the record does not indicate that the appellant experiences such symptomatology. Based on the existence of arthritis in the appellant's right knee, the Board will continue to rate his service-connected disability under Diagnostic Code 5010 which requires application of Diagnostic Codes 5003 [degenerative arthritis], 5260 [limitation of flexion] and 5261 [limitation of extension]. In the present appeal, the appellant was initially afforded a VA examination to determine the extent of his right knee disability in May 2002. The appellant complained of right knee pain with weakness and stiffness. There were no complaints of swelling, redness, instability or locking, but the appellant did endorse lack of endurance and fatigability. McMurray's testing was negative. X-rays revealed mild degenerative changes of the right patella. After conducting a physical examination, the VA examiner specifically noted that the appellant had no loss of function and no loss of range of motion in his right knee. See VA Joints Examination Report, May 3, 2002. The evidence of record does not contain any additional range of motion findings during the appeal period. As noted above, the appellant was scheduled for numerous other VA joints examinations to determine the current level of severity of his right knee disability, to which he did not report. See 38 C.F.R. § 3.655 (2010); see also Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Accordingly, the appellant will be rated on the evidence of record. As this evidence illustrates, throughout the appeal period, the appellant has displayed full range of motion of his right knee. See 38 C.F.R. § 4.71, Plate I (2010). As a result, a disability rating in excess of 10 percent cannot be assigned under Diagnostic Codes 5260 or 5261. In order to warrant a disability rating in excess of 10 percent under Diagnostic Code 5003, there must be X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and occasional incapacitating exacerbations. While the May 2002 VA examiner indicated that the appellant had mild right knee arthritis, the medical evidence does not show, and the appellant does not contend, that his service-connected disability involves arthritis of two or more major joints or two or more minor joints. Furthermore, while the appellant's right knee disability causes him pain, there is no evidence that this disability is productive of incapacitating exacerbations. Thus, a disability rating in excess of 10 percent based on an absence of limitation of motion cannot be assigned under Diagnostic Code 5003. Further, the Court, in DeLuca v. Brown, 8 Vet. App. 202 (1995), held that VA's review of a service-connected musculoskeletal disability must include an assessment of the functional impairment caused by that disability. See 38 C.F.R. §§ 4.40, 4.45 and 4.59 (2010). During a May 2009 VA history and physical examination, the appellant reported that his right knee would periodically give-way, swell at times, and caused him pain. See VA Treatment Record, May 27, 2009. The appellant is competent to report on the symptoms he experiences. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). While the examiner noted that the appellant experienced pain, stiffness, and that his knee would periodically give way, there were no complaints of instability, weakness, incoordination, locking episodes, or effusions. The Board does not dispute that the appellant has right knee pain, however, the evidence of record does not indicate that he has any additional functional impairment caused by his knee disability. In this regard, the Board notes that the May 2002 VA examiner's opinion is consistent with the remaining evidence of record, including the May 2009 VA treatment record. Furthermore, the 10 percent rating currently assigned already compensates the appellant for his subjective complaints of pain, notwithstanding the lack of objective medical evidence of such manifestations. In short, there is no support in the record for a disability rating in excess of 10 percent. Simply put, the appellant's range of motion has been assessed as being normal, and functional loss has not been objectively observed or confirmed identified. The record does not reveal any specific evidence, which would allow for the assignment of additional disability under the DeLuca factors. Accordingly, and based on this evidentiary posture, the Board concludes that at no time during the appeal period is an increased disability rating warranted for the appellant's right knee chondromalacia under Diagnostic Code 5010, 5003, 5260 or 5261 or based on the functional impairment of this disability. See DeLuca, 8 Vet. App. 202; 38 C.F.R. §§ 4.40, 4.45 and 4.59 (2010). Extraschedular Consideration Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors, which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2010), Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App. 111, 115 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. The appellant's contentions have been limited to those discussed above, i.e., that his right knee disability is more severe than is reflected by the currently assigned rating. See Brannon v. West, 12 Vet. App. 32 (1998) [while the Board must interpret a claimant's submissions broadly, the Board is not required to conjure up issues that were not raised by the claimant]. Moreover, the appellant and his representative have not identified any factors which may be considered exceptional or unusual with respect to the service-connected right knee disability and the Board has been similarly unsuccessful. The record does not show that the appellant has required frequent hospitalizations for his service-connected right knee. There is no unusual clinical picture presented, nor is there any other factor, which takes the disability outside the usual rating criteria. In short, the evidence does not support the proposition that the appellant's right knee chondromalacia presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2010). IV. TDIU The appellant contends that he is currently unable to maintain employment due to his service-connected right knee disability. Relevant Law and Regulations It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16 (2010). A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." See 38 C.F.R. §§ 3.340(a)(1), 4.15 (2010). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." See Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." See 38 C.F.R. § 4.16(a) (2010). The Court noted the following standard announced by the United States Court of Appeals for the Eighth Circuit in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. A claim for a total disability rating based upon individual unemployability "presupposes that the rating for the [service- connected] condition is less than 100 percent, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated there was a need to discuss whether the standard delineated in the controlling regulations was an "objective" one based on the average industrial impairment or a "subjective" one based upon a veteran's actual industrial impairment. In a pertinent precedent decision, the VA General Counsel concluded that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91. In determining whether unemployability exists, consideration may be given to a veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by non service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2010). Schedular Basis A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. See 38 C.F.R. § 4.16(a) (2010). Extraschedular Basis Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extraschedular consideration in accordance with 38 C.F.R. § 3.321. Analysis The appellant is currently service-connected for right knee chondromalacia, considered 10 percent disabling. This is his only service-connected disability. He does not meet the schedular requirements noted above. See 38 C.F.R. § 4.16(a) (2010). In accordance with 38 C.F.R. § 4.16(b), the Board has considered whether the appellant's claim for a total rating based on unemployability due to a service-connected disability should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) (2010). As noted above, the only VA examination of record is dated in May 2002. VA has afforded the appellant numerous opportunities to report for a new examination to determine the impact of his service-connected disability on his employability, but he has failed to report. The Board finds that the appellant has not presented competent evidence to support the premise that his service-connected right knee disability has resulted in marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. The effect of the appellant's service-connected right knee disability on his ability to work is clearly contemplated in, and compensated by, the assigned disability rating. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a), 4.1 (2010). 38 C.F.R. § 4.1 specifically states: "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." See Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992) and Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). Thus, while not diminishing the impact that the service-connected right knee disability has on the appellant's industrial capacity, this is already taken into consideration in the assigned rating. Considering the above evidence, the Board does not find that the appellant's service-connected disability causes interference with employment that is sufficient to warrant referral for consideration of an extraschedular rating. Moreover, there is no evidence of an exceptional or unusual clinical picture, or of any other factor, which would allow for the assignment of an extraschedular rating such as frequent hospitalizations. Specifically, the record does not show that the appellant has required any hospitalizations related to his service-connected disability. Based on the foregoing, referral of this issue to appropriate VA officials for extraschedular consideration is not warranted. In summary, for the reasons and bases expressed above, the Board concludes that the preponderance of the evidence is against the claim of entitlement to TDIU. The benefit of the doubt rule accordingly need not be applied. ORDER New and material evidence sufficient to reopen a claim of entitlement to service connection for DDD of the lumbosacral spine, to include as secondary to his service-connected right knee chondromalacia, has not been received. Entitlement to a disability rating in excess of 10 percent for right knee chondromalacia, on a schedular and extraschedular basis, is denied. Entitlement to a total disability evaluation based on individual unemployability due to a service-connected disability, on a schedular and extraschedular basis, is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs