Citation Nr: 1237121 Decision Date: 10/25/12 Archive Date: 11/09/12 DOCKET NO. 10-08 094 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an increased rating for a gunshot wound of the left foot and ankle with traumatic arthritis and scars, currently evaluated as 30 percent disabling. 2. Entitlement to an increased rating for a gunshot wound of the left thigh with scars, currently evaluated as 30 percent disabling. 3. Entitlement to an increased rating for a gunshot wound of the right lower leg with scars affecting Muscle Group XII, currently evaluated as 20 percent disabling. 4. Entitlement to an increased rating for left knee traumatic arthritis, currently evaluated as 10 percent disabling. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to December 6, 2010. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran had active military service from August 1949 to August 1951. He received the Purple Heart Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The July 2009 decision, in part, denied entitlement to TDIU. In December 2010, during the pendency of the appeal, the Veteran filed a claim of service connection for posttraumatic stress disorder (PTSD). By a February 2011 rating decision, the RO granted service connection for PTSD with major depressive disorder. A 70 percent rating was assigned effective December 6, 2010. In that decision, the RO also granted a TDIU rating based primarily on account of the disabling effects of PTSD. The effective date of that rating was also set as December 6, 2010. Although the TDIU benefit sought by the Veteran was granted, the increase was not granted for the entire rating period on appeal. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); AB v. Brown, 6 Vet. App. 35 (1993). The Veteran has consistently contended that his disabilities affecting the lower extremities render him unemployable regardless of the effects of his PTSD. Consequently, the issue of entitlement to TDIU remains on appeal for the period prior to December 6, 2010. The Veteran requested a hearing before the Board in a February 2010 VA Form 9. However, in September 2011, the Veteran indicated that he wished to withdraw his hearing request. Under these circumstances, the Board finds that the Veteran has been afforded his opportunity for a hearing and that his request to testify before the Board has been withdrawn. 38 C.F.R. § 20.704(e) (2011). In January 2012, the Board remanded the case to the agency of original jurisdiction for additional development and consideration. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's service-connected gunshot wound of the left foot and ankle with traumatic arthritis and scars is manifested by symptoms equating to no more than severe left foot impairment; actual loss or loss of use of the left foot, or compensable scarring, has not been shown. 2. The Veteran's service-connected gunshot wound of the left foot and ankle with traumatic arthritis and scars also results in limitation of motion of the left ankle equating to marked limitation of motion. Nonunion of the tibia and fibula, or ankylosis of the left ankle has not been shown. 3. The Veteran's service-connected left knee traumatic arthritis has resulted in painful motion. Functional loss has equated to flexion of the left knee to no worse than 100 degrees with extension to no worse than zero degrees. 4. The Veteran's service-connected gunshot wound of the left thigh with scars consisted of an open comminuted fracture of the left femur and has resulted in symptomatology, including measurable atrophy of the left thigh, equating to a severe injury of Muscle Group XIII. 5. The Veteran's service-connected gunshot wound of the right lower leg with scars has resulted in symptomatology, including measurable atrophy of the right calf, equating to a severe injury of Muscle Group XII. 6. Prior to December 6, 2010, the Veteran's service-connected disabilities then in effect were of such nature and severity as to prevent him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for service-connected gunshot wound of the left foot and ankle with traumatic arthritis and scars, as it pertains to the left foot and scars, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.63, 4.71a, Diagnostic Code 5284 (2011). 2. The criteria for a separate 20 percent rating (and no higher) for limitation of motion of the left ankle associated with service-connected gunshot wound of the left foot and ankle with traumatic arthritis and scars have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.14, 4.25, 4.40, 4.45, 4.59, 4.68, 4.71a, Diagnostic Code 5271 (2011). 3. The criteria for a rating in excess of 10 percent for service-connected left knee traumatic arthritis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261 (2011). 4. The criteria for a 40 percent rating (and no higher) for service-connected gunshot wound of the left thigh with scars have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.25, 4.56, 4.68, 4.73, Diagnostic Code 5313 (2011). 5. The criteria for a 30 percent rating (and no higher) for service-connected gunshot wound of the right lower leg with scars have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.56, 4.73, Diagnostic Code 5312 (2011). 6. Prior to December 6, 2010, the criteria for an award of TDIU were met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.16 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2011). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Board finds that all notification action needed to make a decision as to the claims on appeal has been accomplished. Through a March 2009 notice letter, the RO notified the Veteran and his representative of the information and evidence needed to substantiate his claims. The letter told the Veteran that the evidence must show that his service-connected disabilities had increased in severity or gotten worse. He was also informed of the criteria for establishing a TDIU. The March 2009 letter provided the Veteran with the general criteria for assigning disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board also finds that the March 2009 notice letter satisfies the statutory and regulatory requirement that VA notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). In that letter, the RO notified the Veteran that VA was responsible for obtaining relevant records from any Federal agency and that VA would make reasonable efforts to obtain relevant records not held by a Federal agency, such as from a state, private treatment provider, or an employer. Additionally, the notice letter asked the Veteran to submit medical evidence, opinions, statements, and treatment records regarding his disabilities. Consequently, a remand of the issues on appeal for further notification of how to substantiate the claims is not necessary. There is no indication that any additional action is needed to comply with the duty to assist in connection with the issues on appeal. The Veteran's service treatment records have been obtained and associated with the claims file. Pursuant to the Board's January 2012 remand, treatment records were obtained from the VA Medical Center (VAMC) in Alexandria, Louisiana, and from Dr. Hines at Bunkie General Hospital. Significantly, the Veteran has not otherwise alleged that there are any outstanding medical records probative of his claims on appeal that need to be obtained. Additionally, in April 2009 and February 2012, the Veteran was provided VA examinations in connection with his claims, the reports of which are of record. The most recent examinations were conducted pursuant to the Board's January 2012 remand. The examination reports contain sufficient evidence by which to evaluate the Veteran's service-connected disabilities in the context of the rating criteria and as to his employability. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination, it must provide an adequate one). Thus, VA has properly assisted the Veteran in obtaining any relevant evidence. II. Analysis A. Disability Ratings In May 1952, the Veteran was awarded service connection for a gunshot wound of the left thigh with scars, evaluated as 30 percent disabling; a gunshot wound of the left foot and ankle with traumatic arthritis and scars, evaluated as 30 percent disabling; and left knee traumatic arthritis, evaluated as 10 percent disabling. In June 1952, he was awarded service connection for a gunshot wound of the right lower leg with scars affecting Muscle Group XII, evaluated as 20 percent disabling. The Veteran filed a claim for higher ratings for these four service-connected disabilities in February 2009. The RO denied the claims and continued the ratings. The Veteran contends that higher ratings are warranted for each disability. Disability evaluations are determined by comparing a veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2011). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2011). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2011). The veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1 (2011); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established, VA must address the evidence concerning the state of the disability from the time period one year before the claim for an increase was filed until VA makes a final decision on the claim. The United States Court of Appeals for Veterans Claims has held that consideration of the appropriateness of a staged rating is required. See Hart, 21 Vet. App. at 509-10. When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2011); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath, 1 Vet. App. at 592. Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Gunshot Wound of the Left Foot and Ankle In regards to the gunshot wound of the left foot and ankle with traumatic arthritis and scars, the Veteran has been evaluated as 30 percent disabling under Diagnostic Code 5284 for "foot injuries." Under that diagnostic code, a 10 percent rating is warranted for a moderate foot injury, a 20 percent rating is warranted for a moderately severe foot injury, and a 30 percent rating is warranted for a severe foot injury. Additionally, a 40 percent rating is warranted for actual loss of use of the foot. 38 C.F.R. § 4.71a (Diagnostic Code 5284) (2011). Medical records from the Alexandria VAMC and Dr. Hines reflect treatment for complaints of worsening left ankle and foot pain. The Veteran has been prescribed pain medication and uses a cane to ambulate. A February 2009 VA record indicates that x-rays revealed diffuse joint space narrowing to the left foot with mild hypertrophic ossification and degenerative joint space narrowing at the left ankle. The assessment was arthralgia. In May 2012, Dr. Hines noted a complaint of increased left foot pain due to an old gunshot wound. There was limited motion of the left ankle and Dr. Hines indicated that the disability had increased. The Veteran underwent VA examination in connection with the claim in April 2009. The examiner was not able to review the claims file, but he noted an accurate medical history. X-rays showed degenerative changes in the left foot with no acute bony injury of the left ankle. The Veteran reported symptoms of pain, swelling, heat, fatigability, lack of endurance. He stated that he used a cane and was unable to walk for prolonged distances. Physical examination of the left foot revealed painful motion, swelling, tenderness, instability, weakness, and abnormal weight bearing. There was no muscle atrophy. Examination of the left ankle showed painful motion with dorsiflexion to 10 degrees and plantar flexion to 30 degrees. There was no ankylosis present. The diagnoses were degenerative joint disease of the left foot and severe degenerative joint disease of the left ankle. Additionally, a scar examination showed scarring on the left foot. However, there was no skin breakdown, tenderness on palpation, adherence to underlying tissue, underlying soft tissue damage, skin ulceration or breakdown, or limitation of motion or functional loss as a result of the scarring. In February 2012, the Veteran underwent additional examination of the left foot and left ankle. The examiner reviewed the claims file, noted an accurate medical history, and conducted a physical examination. The Veteran reported that the there was worse pain and that he had difficulty walking. There were flare-ups reported that affected the left foot but not the left ankle. The Veteran used a cane to ambulate. X-rays showed arthritis of the left foot and left ankle. Examination of the left foot did not reveal neuroma, metatarsalgia, hammer toes, hallux valgus, hallux rigidus, pes cavus, malunion or nonunion of the tarsal or metatarsal bones, weak foot, or other foot injuries. There was limited dorsiflexion and plantar flexion. This was measured as plantar flexion of the left ankle to 10 degrees and dorsiflexion to 5 degrees with pain experienced at those measurements. Repetitive motion resulted in plantar flexion to 5 degrees and dorsiflexion to 10 degrees. The examiner indicated that there was no additional functional loss on repetitive motion. For the left ankle, there was less movement, weakness, fatigability, swelling, deformity, disturbance of locomotion, and interference with sitting, standing and weight-bearing. Muscle strength was 4/5 for the left ankle. No instability was present on testing and there was no ankylosis. The diagnoses were gunshot wound of the left foot and left ankle with traumatic arthritis, and with residual hypertrophic changes to the tarsal bone with secondary tarsal condition. Additionally, it was noted that there were linear scars on the left foot and ankle that were not painful or unstable. In consideration of this evidence, the Board finds that a rating higher than 30 percent is not warranted for the effects of the gunshot wound on the Veteran's left foot. He is already receiving the maximum schedular rating under Diagnostic Code 5284 for a severe foot injury absent loss of use of the foot. Other diagnostic codes pertaining to the foot do not provide for a higher evaluation for a unilateral foot disability. See 38 C.F.R. § 4.71a (Diagnostic Codes 5276 to 5283). As the note following Diagnostic Code 5284 states, a 40 percent rating is possible with actual loss of use of the foot. Although the Veteran's disability is manifested by severe symptoms, the evidence does not show that he has loss or loss of use of the left foot. The evidence from the treatment records and examination reports reflect that he retains at least some of function in the left foot. Notably, the February 2012 VA examiner expressly indicated that function in the left foot was not so diminished that amputation with prosthesis would equally serve the Veteran. Such a finding would equate to loss of use of the foot. See 38 C.F.R. § 4.63 (2011). Additionally, there is no suggestion that there is complete ankylosis of a joint or complete paralysis of a nerve affecting the left foot, which would also equate to loss of use. See 38 C.F.R. § 4.63(a), (b). Thus, because actual loss or loss of use of the left foot is not shown, a rating higher than 30 percent is not warranted. Although a higher rating is not warranted for the foot, the evidence shows that the service-connected gunshot wound results in a separate and distinct disability of the left ankle. The treatment records and examination reports reflect that the Veteran has severe degenerative joint disease of the left ankle with limitation of motion. Measurements of plantar flexion and dorsiflexion of the left ankle during the April 2009 and February 2012 VA examination reports tend to show that the Veteran has marked limitation of motion, which meets the criteria for a 20 percent rating under Diagnostic Code 5271 for limitation of motion of the ankle, particularly with consideration of the effects of painful motion. See 38 C.F.R. § 4.71a; Mitchell, 25 Vet. App. at 38-43; DeLuca, 8 Vet. App. at 204-7. Under the anti-pyramiding provision of 38 C.F.R. § 4.14 (2011), the evaluation of the "same disability" or the "same manifestation" under various diagnoses is to be avoided. The Court held, in Esteban v. Brown, 6 Vet. App. 259 (1994), that for purposes of determining whether a veteran is entitled to separate ratings for different problems or residuals of an injury, such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of, or overlapping with, the symptomatology of the other conditions. In the Veteran's case, he appears to have separate and distinct left foot and ankle disabilities that are capable of being evaluated without considering overlapping symptomatology; e.g., a severe foot injury vis-a-vis limitation of motion of the left ankle. Also, the diagnostic codes pertaining to the ankle and the foot are separated in the Rating Schedule. Accordingly, as there are separate manifestations that do not result in pyramiding, the Board finds that a separate 20 percent rating is warranted for limitation of motion of the left ankle associated with a gunshot wound of the left foot and ankle. An even higher rating for the left ankle is not warranted as a 20 percent rating is the maximum rating for the ankle absent ankylosis of the ankle or nonunion of the tibia and fibula. See 38 C.F.R. § 4.71a (Diagnostic Codes 5262, 5270). There is no suggestion in the evidence of nonunion of the tibia and fibula and both the April 2009 and February 2010 VA examiners expressly found that ankylosis was not present in the left ankle. Additional higher or separate ratings are not warranted for scars from the gunshot wound of the left foot and ankle as the evidence does not show that the scars are deep and nonlinear, cover an area greater than 929 sq. cm. (even when considered with other scars), are unstable or painful, or cause some other disabling effect. See 38 C.F.R. § 4.118 (Diagnostic Codes 7801 to 7805) (2011). Thus, the scars of the left foot and ankle are contemplated by the ratings already assigned. Moreover, a separate rating is not warranted for a muscle injury of the foot or ankle area. See 38 C.F.R. § 4.73 (Diagnostic Codes 5310 to 5312) (2011). Such an assignment would constitute pyramiding as the symptoms are already contemplated by the 30 percent rating for the left foot manifestations and the 20 percent rating for the left ankle manifestations. Finally, the Board notes that the regulations provide that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed. See 38 C.F.R. § 4.68 (2011). Here, the 30 percent rating for the left foot and the 20 percent rating for the left ankle combine to be 40 percent disabling. See 38 C.F.R. § 4.25 (2011). Therefore, the combined rating does not exceed the 40 percent rating that would be warranted for an amputation below the knee and the "amputation rule" is not violated. See id.; 38 C.F.R. § 4.71a (Diagnostic Codes 5165 to 5167). Left Knee Arthritis The Veteran's service-connected traumatic arthritis of the left knee has been evaluated as 10 percent disabling for limitation of motion under Diagnostic Code 5010 pertaining to "arthritis due to trauma." Under that diagnostic code, the disability is rated on the basis of limitation of motion of the affected joint. See 38 C.F.R. § 4.71a (Diagnostic Codes 5003, 5010). Diagnostic Codes 5260 and 5261 relate to limitation of motion of the knee joint. For limitation of flexion of the leg, a noncompensable (zero percent) rating is warranted if flexion is limited to 60 degrees; a 10 percent rating is warranted if flexion is limited to 45 degrees; a 20 percent rating is warranted if flexion is limited to 30 degrees; and a 30 percent rating is warranted if flexion is limited to 15 degrees. 38 C.F.R. § 4.71a (Diagnostic Code 5260). The knee may also be rated under limitation of extension of the leg. A noncompensable rating is warranted if extension is limited to 5 degrees; a 10 percent rating is warranted if extension is limited to 10 degrees; a 20 percent rating is warranted if extension is limited to 15 degrees; a 30 percent rating is warranted if extension is limited to 20 degrees; a 40 percent rating is warranted if extension is limited to 30 degrees; and a 50 percent rating is warranted if extension is limited to 45 degrees. 38 C.F.R. § 4.71a (Diagnostic Code 5261). (Full range of motion of the knee is from zero to 140 degrees. 38 C.F.R. § 4.71 (Plate II) (2011).) Separate ratings may be assigned for limitation of flexion and limitation of extension of the same knee joint. See VAOPGCPREC 9-2004 (Sept. 17, 2004). A review of the evidence reveals that the Veteran has sought treatment for pain in the left lower extremity, to include the left knee, from the Alexandria VAMC and Dr. Hines. The February 2009 VA record indicates that x-rays revealed degenerative joint space narrowing at the left knee. In April 2009, the Veteran underwent VA examination to assess the severity of his left knee disability. The Veteran reported experiencing pain on left knee flexion. He also stated there was giving way, stiffness, weakness, decreased speed, and swelling, but he denied experiencing instability or subluxation. Physical examination revealed an antalgic gait, crepitus, and pain in the left knee. Range of motion of the left knee was from zero degrees to 120 degrees with evidence of painful motion. The examiner indicated that there was evidence of pain following repetitive motion, but no additional limitation after such motion. X-rays showed degenerative changes. The examiner provided a diagnosis of severe degenerative joint disease of the left knee. The Veteran was afforded another VA examination of his left knee in February 2012. He reported that he had worsening knee pain and limited range of motion. He indicated he had flare-ups at night and was treated with pain medication. Range of motion was from zero to 100 degrees with endpoint pain. The measurements were the same on repetitive motion and the examiner indicated that there was no additional limitation in range of motion on repetitive testing. Pain, deformity, weakness, and less movement were the functional losses of the left knee. Notably, instability tests of the left knee were normal and there was no subluxation or dislocation. X-rays of the left knee showed arthritis. A diagnosis of left knee traumatic arthritis was provided. In consideration of this evidence, the Board concludes that a rating in excess of 10 percent is not warranted for left knee traumatic arthritis when evaluated under the currently assigned diagnostic code for arthritis and limitation of motion of the left knee. The current 10 percent rating is assigned under Diagnostic Codes 5003 and 5010 for painful motion of the left knee with some limitation. At no time during the rating period on appeal does the evidence suggest that the Veteran had flexion limited to approximately 60 or 45 degrees or extension limited to approximately 5 or 10 degrees. See 38 C.F.R. § 4.71a (Diagnostic Codes 5260, 5261). The evidence contained in the VA examination reports shows that the Veteran regularly had full extension of the left knee, to zero degrees. Although flexion measurements varied, even a zero (noncompensable) percent level was not shown despite some limited motion. This is so even with consideration of painful motion and other factors. The VA examiners identified endpoint pain during range of motion testing, but did not indicate that there was additional decreased motion of the left knee based on the painful motion. Although the evidence does show that the Veteran experiences painful motion (and other symptoms such as weakness), it does not result in a higher rating unless it actually results in additional functional loss. See Mitchell, 25 Vet. App. at 38-43; DeLuca, 8 Vet. App. at 204-7. Thus, while the Veteran does not meet the criteria for even a zero percent rating based on limitation of flexion, since there was arthritis with limited and painful flexion, a 10 percent rating is warranted per 38 C.F.R. § 4.59. Extension of the left knee has been normal, and a separate rating for painful extension is not warranted because to assign two separate ratings based upon painful motion would be pyramiding. The Board notes that, under Diagnostic Code 5257, which pertains to recurrent subluxation and lateral instability of the knee, a 10 percent rating is assigned for slight recurrent subluxation or lateral instability, a 20 percent rating is assigned for moderate recurrent subluxation or lateral instability, and a 30 percent rating is assigned for severe recurrent subluxation or lateral instability. See 38 C.F.R. § 4.71a (Diagnostic Code 5257). The schedule of ratings, does not define the terms "slight," "moderate," and "severe;" rather than applying a mechanical formula to make a determination, the Board evaluates all of the evidence such that decisions are "equitable and just." 38 C.F.R. § 4.6 (2011). The Board has also considered whether the Veteran is entitled to a separate rating under Diagnostic Code 5257; however, the Board finds no objective evidence of subluxation or instability. In this regard, the Board acknowledges that, at his April 2009 VA examination, the Veteran reported that he experiences giving way in the left knee. At that time, he also denied experiencing instability or subluxation. Significantly, at the February 2012 VA examination, the examiner noted that several instability tests were normal, and specifically found that there was no evidence of instability or subluxation. Based on the foregoing, the objective medical evidence shows that the Veteran's left knee is stable without subluxation. Accordingly, a separate rating for instability or subluxation of the left knee under Diagnostic Code 5257 is not warranted in this case. The Board has also considered whether the Veteran is entitled to a separate or rating for left knee ankylosis, cartilage dislocation or removal, impairment of the tibia or fibula, and/or genu recurvatum. However, because the evidence of record fails to demonstrate such symptomatology, the Veteran is not entitled to an increased or separate rating under Diagnostic Codes 5256, 5258, 5259, 5262, or 5263, respectively. Gunshot Wound of the Left Thigh The Veteran's gunshot wound of the left thigh with scars has been historically evaluated as 30 percent disabling under hyphenated Diagnostic Code 5313-5315. Given that the disability has been characterized as moderately severe and that a 30 percent rating has been assigned, the disability appears to have been solely evaluated under Diagnostic Code 5313 as moderately severe impairment equates to a 30 percent rating under Diagnostic Code 5313 and only a 20 percent rating under Diagnostic Code 5315. Diagnostic Code 5313 provides evaluations for disability of Muscle Group XIII. The functions of these muscles are as follows: extension of hip and flexion of knee; outward and inward rotation of flexed knee; and acting with rectus femoris and sartorius (see XIV, 1, 2) synchronizing simultaneous flexion of hip and knee and extension of hip and knee by belt-over-pulley action at knee joint. The muscle group includes the posterior thigh group, hamstring complex of 2-joint muscles: (1) biceps femoris; (2) semimembranosus; and (3) semitendinosus. Disability under this provision is evaluated as: slight (zero percent), moderate (10 percent), moderately severe (30 percent), and severe (40 percent). 38 C.F.R. § 4.73 (Diagnostic Code 5313). As set forth in the above criteria, disabilities resulting from muscle injuries are classified as slight, moderate, moderately severe, or severe. 38 C.F.R. § 4.56(d) (2011). Slight muscle disability contemplates a simple wound of the muscle without debridement or infection; a service department record of a superficial wound with brief treatment and return to duty; healing with good functional results; and no cardinal signs or symptoms of muscle disability. Objectively, there is a minimal scar; no evidence of fascial defect, atrophy, or impaired tonus; and no impairment of function or metallic fragments retained in muscle tissue. 38 C.F.R. § 4.56(d)(1). Moderate muscle disability contemplates a through and through or deep penetrating wound of short track from a single bullet, small shell, or shrapnel fragment, without the explosive effect of a high velocity missile, residuals of debridement, or prolonged infection; a service department record or other evidence of in-service treatment for the wound; and a record of consistent complaint of one or more of the cardinal signs and symptoms of muscle disability, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. Objectively, there are entrance and (if present) exit scars that are small or linear, indicating a short track of missile through muscle tissue; and some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. 38 C.F.R. § 4.56(d)(2). Moderately severe muscle disability contemplates a through and through or deep penetrating wound by a small high velocity missile, or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring; a service department record or other evidence showing hospitalization for a prolonged period for the wound; a record of consistent complaint of cardinal signs and symptoms of muscle disability; and, if present, evidence of inability to keep up with work requirements. Objectively, there are entrance and (if present) exit scars indicating track of missile through one or more muscle groups; indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscle compared with the sound side; and tests of strength and endurance compared with the sound side demonstrate positive evidence of impairment. 38 C.F.R. § 4.56(d)(3). Severe muscle disability contemplates a through and through or deep penetrating wound due to a high velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding, and scarring; a service department record or other evidence showing hospitalization for a prolonged period for treatment of the wound; a record of consistent complaint of cardinal signs and symptoms of muscle disability, worse than those shown for moderately severe muscle injuries; and, if present, evidence of inability to keep up with work requirements. Objectively, there are ragged, depressed, and adherent scars indicating wide damage to muscle groups in the missile track; palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in the wound area; muscles swell and harden abnormally in contraction; and tests of strength, endurance, or coordinated movements indicate severe impairment of function when compared with the uninjured side. 38 C.F.R. § 4.56(d)(4). If present, the following are also signs of severe muscle disability: (a) x-ray evidence of minute, multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; (b) adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum, or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle; (c) diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; (d) visible or measurable atrophy; (e) adaptive contraction of an opposing group of muscles; (f) atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle; and (g) induration or atrophy of an entire muscle following simple piercing by a projectile. Id. The cardinal signs and symptoms of muscle disability are loss of power, weakness, lower threshold of fatigue, fatigue-pain, impairment of coordination; and uncertainty of movement. 38 C.F.R. § 4.56(c). For several reasons, the Board finds that the Veteran's gunshot wound of the left thigh with scars more closely approximates severe muscle impairment rather than moderately severe muscle impairment. First, the historical evidence pertaining to the muscle injury is relevant to the rating criteria. In this regard, the Veteran's service treatment records and post-service VA examination reports created soon after service show that he was shot multiple times on approximately September 15, 1950 when he was stationed in Korea. He was detached from his unit when he was accidentally fired upon by a machine gunner of his own unit. This included six bullet wounds over the left thigh and left knee area. Significantly, among the diagnoses, was a fracture of the medial aspect of the internal condyle of the left femur secondary to the gunshot wounds. The fracture was listed as both simple and compound. Because the fracture was caused by a bullet, the Board will consider the fracture to be compound or open as it involves an opening to the outside. Also, the Board will consider the fracture to be comminuted as that is the nature of a fracture from a gunshot. As an open comminuted fracture is part of the criteria set forth for a severe injury, this evidence supports a higher rating. See 38 C.F.R. § 4.56(a), (d)(4). Additionally, the muscle damage does not appear to be only minimal in nature. The Veteran was hospitalized during service for a prolonged period for treatment of the wounds. Moreover, the service records show that there was atrophy of the left thigh during service. This is still the case as the February 2012 VA examiner found that there is atrophy of the left thigh as it measures smaller in circumference to the right thigh. The manifestation is significant as the rating criteria set forth that visible or measurable atrophy is a sign of severe muscle disability. See 38 C.F.R. § 4.56(d)(4)(iii)(D). Moreover, the February 2012 VA examination report shows that the Veteran has 3/5 strength for the left leg and uses a cane for ambulation, which indicates there is some loss of power. Moreover, he has complained of weakness and fatigue-pain. These are all cardinal signs and symptoms of muscle disability. See 38 C.F.R. § 4.56(c). Based on the historical evidence and circumstances surrounding the gunshot wound of the left thigh and the current symptomatology, the Board concludes that a 40 percent rating is warranted under Diagnostic Code 5313 for a severe muscle injury. This is the maximum schedular rating under this diagnostic code. The Board has considered whether the Veteran is entitled to separate ratings for any other manifestations associated with this disability. See Esteban, 6 Vet. App. at 259. As to scars, there is scarring from multiple gunshots to the left thigh area. The criteria for rating a muscle injury reflect that some effects of scarring are already contemplated by a "severe" muscle injury. See 38 C.F.R. § 4.56(d)(4) (objective findings of a severe disability include ragged, depressed, and adherent scars). However, the Court has held that the painfulness of a scar is not contemplated by the provisions of section 4.56(d) and that a separate rating for a scar is not duplicative of or overlapping with a muscle injury under Esteban. See Jones v. Principi, 18 Vet. App. 248, 260 (2004). In the Veteran's case, though, both the April 2009 and February 2012 VA examiners noted that none of the scars are painful. No symptomatology associated with the scars is shown that is not already contemplated by the 40 percent rating for a severe muscle injury. Therefore, the Board finds that a separate rating for painful scarring is not warranted. See 38 C.F.R. § 4.118 (Diagnostic Code 7804). The evidence shows that the gunshot wound of the left thigh affects the Veteran's left knee. A separate rating is warranted for the resulting left knee arthritis, which has already been assigned. The Board discussed the appropriateness of the evaluation of the separate left knee rating in the previous section. Injuries to Muscle Group XIII can potentially affect the hip as the muscles in that group act on the hip joint. In this case, the evidence does not suggest that service-connected disability results in any left hip impairment. The evidence shows that the Veteran has primarily complained of pain in the left thigh and lower. Additionally, the April 2009 VA examiner noted that any problems with the hips or previous injury to this joint was denied. The February 2012 examiner also only indicated that the left knee joint was affected. Thus, a separate rating for impairment of the left hip is not warranted. Furthermore, the evidence does not show any associated nerve impairment. In any case, a muscle injury rating will not be combined with a peripheral nerve paralysis rating of the same body part unless the injuries affect entirely different functions. See 38 C.F.R. § 4.55(a) (2011). Finally, the Board notes that 40 percent rating for the left thigh, the 30 percent rating for the left foot, the 20 percent rating for the left ankle, and the 10 percent rating for the left knee combine to be 70 percent disabling. See 38 C.F.R. § 4.25. Therefore, this combined rating still does not exceed the ratings for amputation of the thigh at the upper third level or pelvic girdle. Thus, the "amputation rule" is not violated. See 38 C.F.R. §§ 4.68, 4.71a (Diagnostic Codes 5160 to 5161). Gunshot Wound of the Right Lower Leg The Veteran's gunshot wound of the right lower leg with scars has been historically evaluated as 20 percent disabling under Diagnostic Code 5312 as being moderately severe in nature. Diagnostic Code 5312 provides evaluations for disability of Muscle Group XII. The functions of these muscles are as follows: dorsiflexion (1); extension of toes (2); and stabilization of arch (3). The anterior muscles of the leg include: (1) tibialis anterior; (2) extensor digitorum longus; extensor hallucis longus; and (4) peroneous tertius. Disability under this provision is evaluated as: slight (zero percent), moderate (10 percent), moderately severe (20 percent), and severe (30 percent). 38 C.F.R. § 4.73 (Diagnostic Code 5312). The remaining criteria for muscle injuries are described in the previous section. The service treatment records and post-service examination conducted shortly after service concerning the gunshot wound of the right lower leg does not reflect a history as severe as the left thigh wounds. The gunshots were sustained in the same incident and there were five bullet wounds on the right leg, but there was no fracture on that side. There was nevertheless a prolonged hospitalization for the recovery. More recent VA and private treatment records show complaints of right leg pain although the primary complaint has been on the left side. The April 2009 VA examination report reflects a complete absence of impairment as the Veteran denied symptoms associated with the Muscle Group XII area. However, the February 2012 VA examination appears to more accurately describe the disability picture. Significant findings included scars where palpation showed loss of deep fascia. Also, there was some impairment of muscle tonus. There were several cardinal signs and symptoms of muscle disability noted that were consistent in nature-loss of power, weakness, lowered threshold of fatigue, and fatigue-pain. Notably, the examiner found that there was associated muscle atrophy of the right calf when the circumferences of the calves were measured. In view of this evidence, and particularly the measurable atrophy of the right calf which is considered a sign and symptom of severe muscle disability, the Board finds that the Veteran's gunshot wound of the right lower leg with scars more closely approximates a severe muscle injury. Thus, the Board concludes that a 30 percent rating is warranted under Diagnostic Code 5312, which is the maximum schedular rating under this diagnostic code. The Board has considered whether separate ratings are warranted for other manifestations that are not duplicated by the 30 percent rating, but concludes that no such rating is warranted. Unlike the knee arthritis on the left side, the evidence does not show that the gunshot wound of the right lower leg causes impairment to an affected joint. Additionally, the evidence does not show that the associated scars are painful in nature or result in symptomatology not already taken into account by the 30 percent rating. Moreover, the evidence does not show any associated nerve involvement. Thus, a separate rating is not warranted. Extra-Schedular Consideration The above determinations are based upon consideration of applicable rating provisions. It should also be pointed out that there is no showing that the Veteran's service-connected left and right lower extremity disabilities have reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2010). The symptoms of his disabilities have been accurately reflected by the schedular criteria. Without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). In sum, for the foregoing reasons, the Board finds that the following awards should be made: a 20 percent rating for limitation of motion of the left ankle associated with gunshot wound of the left foot and ankle with traumatic arthritis and scars; a 40 percent rating for gunshot wound of the left thigh with scars; and a 30 percent rating for gunshot wound of the right lower leg with scars. No other higher or separate evaluations are warranted for the increased rating claims on appeal. This is so for the entire rating period on appeal. See Hart, 21 Vet. App. at 509-10. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against other higher or separate ratings, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). B. TDIU Generally, a TDIU rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2011). In regards to the issue of entitlement to TDIU, as noted previously, a TDIU rating was granted effective December 6, 2010. A January 2011 VA examiner gave the opinion that the Veteran could be considered unemployable because of his severe depression and PTSD. However, because the effective date of the award of service connection for PTSD with major depressive disorder is December 6, 2010, the disorder may not be taken into account prior to December 6, 2010 when addressing the TDIU claim. This is so because a TDIU may only be awarded as a result of service-connected disabilities. See 38 C.F.R. § 4.16. Prior to December 6, 2010, service connection was in effect for the following disabilities: a gunshot wound of the left foot and ankle with traumatic arthritis and scars, evaluated as 30 percent disabling; a gunshot wound of the left thigh with scars, now evaluated as 40 percent disabling; a gunshot wound of the right lower leg with scars affecting Muscle Group XII, now evaluated as 30 percent disabling; left knee traumatic arthritis, evaluated as 10 percent disabling; a scar on the anterior medial aspect of the right knee, evaluated as noncompensably disabling; and a scar on the right thumb, evaluated as noncompensably disabling. Additionally, a 20 percent rating is in effect for limitation of motion of the left ankle as discussed above. In light of these ratings, the schedular requirements for a TDIU were met prior to December 6, 2010, even without consideration of PTSD. See 38 C.F.R. § 4.16(a). The record reflects that the Veteran last worked in September 2000 as an auto mechanic at a car dealership, which was his occupation for over 40 years. Although he retired from the position, the Veteran contends that he is unemployable (prior to December 6, 2010) as a result of his service-connected disabilities affecting the lower extremities, particularly concerning problems with the left leg and foot. In an undated letter received in February 2009, Dr. Hines stated that the Veteran was unable to secure and sustain gainful employment due to residuals of service-connected injuries. Although Dr. Hines addressed the salient question, the letter is not particularly persuasive as no disability was identified and no supporting rationale was provided for the opinion. In April 2009, the Veteran underwent a general VA examination in connection with the claim. The examiner indicated that the Veteran has very limited capacity to walk due to left foot pain on walking. He also has CAD (coronary artery disease) and was advised not to do any strenuous activity even though he had a CABG (coronary artery bypass graft). The examiner noted that, at the Veteran's age, he has no desire to work for a living besides the fact that nobody would want to hire him with his medical problems. The April 2009 examiner implied that the Veteran may have been unemployable as a result of physical disability. However, the examiner referred to both a service-connected disability (left foot) and a non-service-connected disability (CAD) when addressing the matter. Moreover, the examiner referenced the Veteran's age (78 years old at that time) as a possible factor both in his desire to work and the aversion a prospective employer may have had to hire him. Notably, age may not be considered as a factor in evaluating service-connected disability; and unemployability associated with advancing age may be used as a basis for a total disability rating. See 38 C.F.R. § 4.19 (2011). Pursuant to the Board's January 2012 remand, the February 2012 VA examiner provided an opinion on the matter. In the examiner's opinion, the Veteran's service-connected conditions prior to December 2010 deemed him unable to participate in gainful employment. The examiner noted that the Veteran worked as a mechanic for many years and was required to stand for long hours on a concrete surface. He had increased pain and weakness of his right lower leg, increased pain in his left knee, and decreased range of motion and mobility of his left foot and ankle. The examiner stated that the Veteran has to ambulate constantly with a cane to prevent falls due to limited range of motion of the left foot and ankle. In consideration of this evidence, the Board finds that, prior to December 6, 2010, the Veteran's service-connected disabilities then in effect were of such nature and severity as to prevent him from securing or following substantially gainful employment. The February 2012 VA examiner's opinion is persuasive because it was made after a review of the claims file, a physical examination of the Veteran, and it includes a detailed explanation. Although the Veteran was able to work until retirement, the disabling nature of his service-connected disabilities affecting the lower extremities essentially precluded him from meeting a requirement of standing for long hours on a concrete surface in the only occupation he knew for over four decades. Although advancing age and nonservice-connected disabilities may have also affected the Veteran's employability prior to December 6, 2010, his service-connected disabilities alone prevented him from securing or following substantially gainful employment. Accordingly, the Board concludes that a TDIU is warranted prior to December 6, 2010. ORDER A rating in excess of 30 percent for gunshot wound of the left foot and ankle with traumatic arthritis and scars is denied. A separate 20 percent rating (and no higher) for limitation of motion of the left ankle associated with gunshot wound of the left foot and ankle with traumatic arthritis and scars is granted, subject to the laws and regulations governing the payment of monetary awards. A rating in excess of 10 percent for left knee traumatic arthritis is denied. A 40 percent rating (and no higher) for gunshot wound of the left thigh with scars is granted, subject to the laws and regulations governing the payment of monetary awards. A 30 percent rating (and no higher) for gunshot wound of the right lower leg with scars is granted, subject to the laws and regulations governing the payment of monetary awards. Entitlement to a TDIU is granted prior to December 6, 2010, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs