Citation Nr: 1300344 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 07-24 909 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for left foot pes planus with plantar fasciitis. 2. Entitlement to a disability rating in excess of 10 percent for right foot pes planus with plantar fasciitis. 3. Entitlement to an initial compensable evaluation for retropatellar pain syndrome of the left knee. 4. Entitlement to an initial compensable evaluation for retropatellar pain syndrome of the right knee. 5. Entitlement to a 10 percent rating under 38 C.F.R. § 3.324 for multiple non-compensable service-connected disabilities. 6. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran served on active duty from March 2001 to May 2004. This matter was last before the Board of Veterans' Appeals (Board) in June 2010, on appeal from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The RO denied entitlement to a 10 percent rating under 38 C.F.R. § 3.324, but granted entitlement to service connection for bilateral knee disabilities and bilateral plantar fasciitis, assigning initial non-compensable evaluations. The Veteran timely appealed the denial and the assigned non-compensable disability evaluations. The Board remanded these issues in June 2010 and referred a claim of entitlement to service connection for bilateral pes planus. In an August 2010 rating action, the RO granted entitlement to service connection for bilateral pes planus, determining that disability was so intertwined with plantar fasciitis that they should be rated jointly. The RO assigned a 10 percent rating for pes planus with plantar fasciitis of the left foot, and a separate 10 percent for pes planus with plantar fasciitis of the right foot. The Veteran has not disagreed with those ratings, but, as he has not indicated they satisfy his appeal as to the ratings for plantar fasciitis, the issues remain on appeal. See A.B. v. Brown, 6 Vet.App. 35, 39 (1993). The issue of entitlement to a total disability evaluation based on individual unemployability due to service-connected disability has been added to the appeal. A claim for individual unemployability is an element of all appeals of an increased rating (Rice v. Shinseki, 22 Vet.App. 447 (2009)) and the Veteran has presented some evidence of unemployment during the course of his appeal. Hence, the issue of entitlement to a total disability evaluation based on individual unemployability due to service-connected disability is part of his appeal. Roberson v. Principi, 251 F.3d 1378 (Fed.Cir. 2001); 38 C.F.R. § 3.155(a) (2012). The Veteran testified before the below-signed Veterans Law Judge in February 2010 in Portland. A copy of the transcript from that hearing has been associated with the record. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's appeal. A review of the virtual file revealed additional medical evidence pertinent to the current appeal - that evidence has been carefully reviewed. FINDINGS OF FACT 1. At no point in the appellate period has the Veteran's left foot disability manifested as more than a moderate injury or with objective evidence of marked deformity with pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. 2. At no point in the appellate period has the Veteran's right foot disability manifested as more than a moderate injury or with objective evidence of marked deformity with pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. 3. At no point in the appellate period has the Veteran's left knee disability resulted in limitation of flexion to 60 degrees or less, limitation of extension to five degrees or less, dislocated semilunar cartilage, recurrent subluxation or lateral instability, or ankylosis. 4. At no point in the appellate period has the Veteran's right knee disability resulted in limitation of flexion to 60 degrees or less, limitation of extension to five degrees or less, dislocated semilunar cartilage, recurrent subluxation or lateral instability, or ankylosis. 5. The Veteran is in receipt of a combined 40 percent disability evaluation. 6. The Veteran's service-connected disabilities do not render it impossible for the Veteran to follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a right foot disability are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.10, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5276, 5284 (2012). 2. The criteria for a rating in excess of 10 percent for a left foot disability are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.10, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5276, 5284 (2012). 3. The criteria for a rating in excess of 10 percent for a right knee disability are not met. 38 U.S.C.A. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.10, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5024, 5260, 5261 (2012). 4. The criteria for a rating in excess of 10 percent for a left knee disability are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.10, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5024, 5260, 5261 (2012). 5. The criteria for a 10 percent rating under 38 C.F.R. § 3.324 for multiple non-compensable service-connected disabilities are not met. 38 C.F.R. § 3.324 (2012). 6. The Veteran has not presented evidence such that referral for the assignment of an extraschedular rating for his knee disabilities, pursuant to 38 C.F.R. § 3.321(b)(1), is warranted. 38 C.F.R. §§ 3.102, 3.159, 3.321(b), 3.326 (2012). 7. The Veteran has not presented evidence such that referral for the assignment of an extraschedular rating for his foot disabilities, pursuant to 38 C.F.R. § 3.321(b)(1), is warranted. 38 C.F.R. §§ 3.102, 3.159, 3.321(b), 3.326. 8. The criteria for an award of a total disability evaluation based on individual unemployability due to service-connected disabilities are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(a)(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), and implemented by 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012), VA has a duty to notify a claimant of any information and evidence needed to substantiate and complete claims. The Veteran was notified in an August 2004 letter as to the information and evidence needed to substantiate claims for service connection. The letter also notified him of his and VA's duties for gathering evidence. A May 2008 letter advised him of how VA assigns disability ratings and effective dates. That letter also advised him of the specific disability rating criteria pertinent to the increased rating issues and that he should submit evidence of the impact of his disabilities on his employment. The claim was readjudicated in a March 2012 supplemental statement of the case. As noted, this claim was remanded in June 2010. The Board directed the RO/AMC to obtain additional treatment records and provide the Veteran with VA examinations to assess the current severity of his foot and knee disabilities. Additional treatment records have been added to the claims file and the Veteran was afforded examinations which are adequate for rating purposes. The RO/AMC substantially completed the remand directives, and the duty to assist has been fulfilled All evidence has been thoroughly reviewed. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but only such evidence as is relevant must be discussed). The analyses in this decision focus on the most salient and relevant evidence, and on what the evidence shows or fails to show with respect to the appeal. See Timberlake v. Gober, 14 Vet.App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Increased Ratings Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history. 38 C.F.R. §§ 4.2, 4.41. An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet.App. 589 (1991). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where, as in the case of the Veteran's claims, a claimant appeals the initial rating given at the time service connection was established, the Board must consider the propriety of assigning one or more levels of rating -"staged" ratings- from the initial effective date forward, based on evidence as to the severity of disability. See Fenderson v. West, 12 Vet.App. 119, 126-7 (1999). The evaluation of evidence generally involves a three step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet.App. 303 at 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir. 2007). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet.App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." Falzone v. Brown, 8 Vet.App. 398 (1995) Laypersons have been found to not competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet.App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet.App. 498, 511-512 (1995). Ratings shall be based, as far as practicable, upon the average impairments of earning capacity; however, the Secretary shall, from time to time, readjust this schedule of ratings in accordance with experience. To accord justice in an exceptional case in which the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is 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 as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). Feet The Veteran is currently assigned separate bilateral 10 percent disability evaluations for pes planus with plantar fasciitis under 38 C.F.R. § 4.71a, Diagnostic Codes 5276, 5284. After careful review of the evidence of record, as further explained below, the Board finds the preponderance of the evidence against entitlement to initial evaluations in excess of a 10 percent for disability of either foot. Diagnostic Code 5276 provides the criteria for rating pes planus, or flatfoot. A 10 percent rating, regardless of whether the condition is unilateral or bilateral, indicates it is moderate with the weight-bearing line over or medial to the great toe, inward bowing of the tendon Achilles, and pain on manipulation and use of the feet. A 20 percent rating for unilateral pes planus or a 30 percent rating for bilateral pes planus requires a severe condition with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indications of swelling on use, and characteristic callosities. 38 C.F.R. § 4.71a, Diagnostic Code 5276. Diagnostic Code 5284 provides criteria for rating other foot injuries. Foot injuries that are moderate warrant a 10 percent disability rating. If moderately severe, a 20 percent disability rating is appropriate. 38 C.F.R. § 4.71a, Diagnostic Code 5284. After considering the evidence of record under the laws and regulations as set forth above, the Board concludes that no more than a moderate foot disability, resulting from the combined effects of pes planus and plantar fasciitis, is present in either foot. The Veteran is not entitled to initial separate evaluations in excess of 10 percent for each foot. The Veteran was diagnosed with chronic pes planus and plantar fasciitis while on active duty. He was afforded a VA examination in June 2005. The examiner reviewed his service records and noted the Veteran's contention that he could "function at a high level" and stand for a "decent" amount of time with pain increasing after 30 minutes. The Veteran informed the examiner that he was a full time student and could carry a book bag and books without any deficit. The Veteran further informed the examiner that he had not taken any pain medication in over a year and reported no pain other than a generalized ache in his feet upon waking. The Veteran did report wearing orthotics. Upon examination, there was normal gait, but collapse of the longitudinal arch and bilateral pronation with six degrees of valgus angle at the Achilles, which was non-tender. There was no painful motion in the feet and 5/5 strength. No transverse arch abnormalities, hallux valgus, callus formation, or swelling were noted. The examiner diagnosed bilateral plantar fasciitis with history of metatarsalgia. The examiner opined that the Veteran did not experience incapacitating episodes and could walk as far as he wanted. X-ray of the feet reflects that they were within normal limits. The RO granted entitlement to service connection for bilateral plantar fasciitis in July 2005 and assigned an initial non-compensable rating. In April 2006 the Veteran submitted a written notice of disagreement and stated that he had been "in pain every day for the last four years." Although acknowledging that his pain severity could vary significantly from day to day, he stated that he was in more pain on the day of the examination than indicated in the examination report. An August 2007 VA treatment note reflects a diagnosis of plantar fasciitis affecting the left foot and that the Veteran took Tylenol P.M. once a day. The physician observed that the Veteran could ambulate without difficulty and wore insoles in his shoes that he reported were "very effective." He was referred to podiatry for further evaluation. In September 2007, the Veteran was evaluated by a physical therapist and a VA podiatrist. The physical therapist noted that the Veteran reported pain upon standing, but did not evaluate his feet. The podiatrist diagnosed painful pes planus with possible plantar fasciitis. Upon examination there was bilateral pronating with flattening of the mid-foot, but no restriction or pain with motion. The Veteran reported radiation of the pain from his feet into his legs. New orthotics were prescribed. In January 2008, the Veteran was seen by physical therapy. He reported that he ran one to two miles every other day, did 50 push-ups and sit ups most days, and stretched some. He reported for treatment of back pain and did not mention his feet. At a June 2008 physical health evaluation, the Veteran reported pain at a level of 7/10 in multiple locations including his feet. However, at a separate appointment on the same day, he also reported no acute distress; his arthralgias were noted to be stable. The Veteran testified before the below-signed Veterans Law Judge in February 2010. He reported that his foot pain had increased since the 2005 examination, and that he wore orthotics on a daily basis because he could not stand up pain-free without them. The Veteran also testified that he frequently took pain medication for his feet, could only stand for five to 20 minutes at a time, and could not run without severe pain. In June 2010, the Board remanded the Veteran's case for the provision of an additional examination to determine the current severity of his foot disabilities. The Board referred a claim of entitlement to service connection for pes planus. An August 2010 rating decision granted entitlement to service connection for pes planus, and the RO determined that plantar fasciitis and history of metatarsalgia is inextricably intertwined with pes planus. The RO assigned a 10 percent disability rating for each foot under Code 5276. The Veteran was afforded another VA examination in January 2012. The report reflects that the examiner reviewed the claims file and observed the Veteran's prior diagnoses of plantar fasciitis and pes planus. During interview, the Veteran informed the examiner that he could only stand for 10 to 15 minutes and could only walk three to four blocks. He also stated that his feet felt better upon waking, but hurt after approximately 30 minutes. He denied any swelling of the feet and stated that the orthotics provided by VA did not help. Although the Veteran complained of not being able to participate in physical exercise, the examiner noted that he mentioned in a different part of the interview that he "runs some during the week." The examiner noted bilateral metatarsalgia and observed that when the Veteran got up on his toes, he overpronated his feet. The examiner further observed that the Veteran reported using a cane once a week due to the combined effects of his knee and foot disabilities. X-ray revealed partial flattening of the bilateral longitudinal arches, but no other significant results. The weight-bearing line fell over or medial to the great toe on both feet and there was inward bowing of the Achilles tendon. The January 2012 VA examiner found no evidence of plantar fasciitis upon examination and noted that the Veteran's description of his foot pain was not consistent with plantar fasciitis. The examiner opined that the level of pain attested to by the Veteran was not supported by examination findings and that the severity of his flat feet was moderate only. His foot disabilities were noted to not result in any additional loss of motion. The examiner noted that the appellant's foot pain was accentuated upon use, but there was no accentuation of pain upon manipulation and no evidence of swelling or calluses; pain was relieved with orthotic use. As noted above, a higher rating is not applicable unless there is objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. Id. The June 2005 VA examination revealed collapse of the longitudinal arch and bilateral pronation. Although the Veteran reported pain upon use, there was no pain upon manipulation. Subsequent treatment records do not indicate additional symptomatology such as swelling or calluses, but the Veteran did later report increased pain including upon use. At the 2012 examination there was again no pain upon manipulation, but there was reported pain upon use. Although the 2012 examination revealed no current evidence of plantar fasciitis, it showed that the weight-bearing line fell over or medial to the great toe on both feet and that there was inward bowing of the Achilles tendon - two of the criteria for a 10 percent disability rating under Code 5276. However, the Veteran did not manifest pain upon manipulation and the rating schedule indicates that criterion must be present with the other criteria to warrant a 10 percent rating. Further, the 10 percent rating is applicable regardless of whether pes planus is unilateral or bilateral. 38 C.F.R. § 4.71a, Diagnostic Code 5276. Although some pronation was noted at the 2005 and 2012 examinations, no medical professional has described that pronation as a marked deformity and there is no evidence during the appellate period of any swelling, pain on manipulation, or callosities as required for a rating in excess of 10 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5276. The medical evidence of record, including the 2005 and 2012 examination findings, reflects that the Veteran has experienced metatarsalgia and plantar fasciitis in conjunction with pes planus during the appellate period. The evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14 (2012). However, when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different diagnostic codes. Esteban v. Brown, 6 Vet.App. 259 (1994) The RO has rated the Veteran's pes planus with plantar fasciitis as a moderately (10 percent) disabling condition in each foot. Diagnostic Code 5284 provides that foot injuries that are moderate warrant a 10 percent disability rating; a 20 percent rating is not appropriate unless the disability is moderately severe. 38 C.F.R. § 4.71a. The Veteran's symptoms are noted to be pain upon use, pronation, and inward bowing of the Achilles. Although pronation and inward bowing are attributed to pes planus, the Veteran's pain has been attributed by the appellant and the medical professionals who issued his initial diagnoses to the combined effects of his foot disabilities - pes planus, metatarsalgia, and plantar fasciitis. VA may not compensate the Veteran for his foot pain under multiple diagnostic codes as that would result in pyramiding. 38 C.F.R. § 4.14. Alternatively, the Board observes that the 10 percent ratings assigned in August 2010 for the Veteran's combined (pes planus with plantar fasciitis) foot disabilities may be explained as a change in diagnostic code for the already service-connected plantar fasciitis rather than as grants of service connection for a new disability (pes planus). 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 an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Here, the Veteran was diagnosed with plantar fasciitis during service and at a 2005 VA examination. However, a VA podiatrist in September 2007 described the Veteran's clinical picture as involving pes planus with only "possible" plantar fasciitis and a 2012 examiner's opinion indicates that the Veteran's symptoms were inconsistent with plantar fasciitis. The 2012 examiner's opinion provides a reasoned explanation as to why the Veteran's symptomatology did not support diagnosis of plantar fasciitis; the 2012 examiner explicitly disagreed with the 2005 examiner's opinion. In addition to the 2012 examiner's disagreement with the prior opinion, the 2005 examiner did not clarify the criteria used for diagnosis of plantar fasciitis and did not explain why pes planus was not diagnosed despite observance of arch collapse. See Owens v. Brown, 7 Vet.App. 429, 433 (1995) (the Board may choose not to favor the opinion of a competent medical professional so long as providing reasons and bases).The Board finds that the 2007 treatment note and the 2012 examination report constitute probative evidence that the Veteran's disability picture is more appropriately characterized as pes planus with history of plantar fasciitis. Guerrieri v. Brown, 4 Vet.App. 467, 470-471 (1993). Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet.App. 625 (1992). The separate 10 percent ratings for each foot more than adequately compensate the Veteran for his service-connected foot disabilities. Although he has contended that his foot pain is severe and renders him unable to stand for more than approximately 15 minutes or walk more than four blocks, the claims file reflects otherwise. Specifically, the Veteran informed the 2005 examiner that he could walk and carry a backpack and books without difficulty, he informed a VA physician in January 2008 that he ran several miles each week, and reported in September 2008 that he had gone for a long walk and then completed a one mile run. Further, he admitted to the 2012 examiner that he ran weekly. The Veteran is competent to report pain, but the Board finds his statements regarding the alleged severity of his pain to not be credible due to inconsistency with the other evidence of record. Caluza, 7 Vet.App. at 511-512. As the medical evidence of record reflects a disability no more than moderately disabling, the Board finds the 10 percent ratings appropriate. The Board has considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca v. Brown, 8 Vet.App. 202 (1995). However, an increased evaluation is not warranted on the basis of functional loss due to pain or weakness in this case. His objective symptoms are supported by pathology consistent with a single 10 percent rating (under Code 5276) and he has already been assigned a 10 percent rating for each foot to compensate him for the objective pathology as well as his subjective complaints of pain and additional loss of use due to pain. The effect of the pain is contemplated in the currently assigned initial 10 percent disability evaluations. Regardless, the Veteran's disability evaluations are not based on range of motion and pain alone does not equate with functional loss. Mitchell v. Shinseki, 25 Vet.App. 32 (2011). In light of the holding in Fenderson the Board has considered whether the Veteran is entitled to "staged" ratings for his service-connected foot disabilities, however, the record does not contain any evidence supporting increased disability ratings, there is no basis for assigning staged ratings at any time during the appellate term. The Board considered whether any other Diagnostic Code would avail a higher rating. The only diagnostic codes for foot disabilities other than Codes 5276 and 5284 that provide ratings in excess of 10 percent are used to evaluate pes cavus and malunion or nonunion of the tarsals or metatarsals. As the Veteran is not service connected for either pes cavus or malunion or nonunion of the tarsals or metatarsals, consideration of diagnostic codes 5278 and 5283 is not warranted. 38 C.F.R. § 4.71a. The symptoms presented by the Veteran's foot disabilities are fully contemplated by the rating schedule. There is no evidence the Veteran's disability picture is exceptional when compared to other veterans with the same or similar disability. Further, there is no competent and credible evidence that this disorder at any time during the appellate term necessitated frequent hospitalization or caused a marked interference with employment. There is no medical evidence that these disabilities interfere with his employment. Hence, the Board finds no evidence warranting referral for extraschedular consideration. Thun v. Peake, 22 Vet.App. 111 (2008). Knees The Veteran is currently assigned non-compensable evaluations for retropatellar pain syndrome of the knees under 38 C.F.R. § 4.71a, Diagnostic Codes 5024. After careful review of the evidence of record, as further explained below, the Board finds the preponderance of the evidence against entitlement to initial compensable evaluations. Diagnostic Code 5024 rates tenosynovitis, which the rating criteria require be rated as degenerative arthritis under Diagnostic Code 5003. See 38 C.F.R. § 4.71a. Diagnostic Code 5003 provides that degenerative arthritis established by X-ray is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the joint involved. If the limitation of motion of the joint involved is noncompensable, a rating of 10 percent is applicable. Id. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Disability Codes 5260 provides that a limitation of leg flexion to 60 degrees warrants a noncompensable evaluation; limitation of flexion of the leg to 45 degrees warrants a 10 percent rating; and a 20 percent evaluation requires that flexion be limited to 30 degrees. 38 C.F.R. § 4.71a. Diagnostic Code 5261 directs that a limitation of extension of either leg to 5 degrees warrants a noncompensable evaluation, a 10 percent evaluation requires that extension be limited to 10 degrees, and a 20 percent evaluation requires that extension be limited to 15 degrees. Id. The Veteran filed a June 2004 claim for bilateral retropatellar pain syndrome. At a June 2005 VA examination the examiner reviewed his service records and noted the Veteran's contention that he could "function at a high level" and stand for a "decent" amount of time. The Veteran reported that he was a full time student and could carry a book bag and books without any deficit. The Veteran denied taking any pain medication in over a year, but reported constant knee pain increasing with any repetitive movement such as lifting, bending, and carrying. He reported swimming two to three times a week. Upon examination there was a normal gait and range of motion was pain free from 0 to 145 degrees without swelling or deformity. All aspects of the patella were non-tender to palpation and strength was 5/5. The examiner diagnosed bilateral retropatellar pain syndrome and opined that the Veteran could lose between five and ten percent of his range of motion with repetitive movement flares. The examiner noted that the Veteran did not experience incapacitating episodes and could walk as far as he wanted. A contemporaneous x-ray of the knees reflects that they were within normal limits. The RO granted entitlement to service connection for bilateral retropatellar pain syndrome in July 2005 and assigned initial non-compensable ratings for each knee. In April 2006 the Veteran submitted a written notice of disagreement and stated that he had been "in pain every day for the last four years." Although acknowledging that his pain severity can vary significantly from day to day, he stated that he was in pain on the day of the examination. The Veteran reported for VA care in August 2007. He indicated pain in multiple joints and reported taking Tylenol P.M. once a day. The physician observed that the Veteran could ambulate without difficulty, but put in an order for a prescription painkiller for discomfort in the back, ankles, and knees. A September 2007 VA treatment note reflects that the Veteran's gait was normal and his flexion and extension were 5/5. The Veteran reported 2/10 right knee pain, and 3/10 left knee pain in October 2007. In November 2007, the Veteran was seen for re-evaluation of his joint pains. He reported that his knees were "good" without use of any protective sleeves, but he requested a cane for "bad days" from the combined effect of his knees and feet. In January 2008, the Veteran was seen by physical therapy. He reported that he ran one to two miles every other day, did 50 push-ups and sit ups most days, and stretched some. He reported for treatment of back pain and did not mention his knees. At a June 2008 physical health evaluation, the Veteran reported 7/10 pain in multiple locations including his knees. However, at a separate appointment on the same day, he also reported no acute distress and his arthralgias were noted to be stable. In September 2008 the appellant reported left knee pain. He reported having gone for a long walk and a one mile run. The treatment note reflects that he had a noticeable left-sided limp. A physical therapist assisted him in stretching his hamstring. The Veteran testified before the below-signed Veterans Law Judge in February 2010. In June 2010, the Board remanded the Veteran's case for an additional examination. At a January 2012 VA examination the examiner reviewed the claims file and diagnosed bilateral patello-femoral syndrome. The Veteran reported 2/10 pain on good days and 7/10 pain on bad days. Using stairs reportedly made pain worse. He stated that his knees rarely gave way and did not lock, but just hurt around the front of the knees. He reported taking no medication, but occasionally using ice. Right and left knee flexion were measured at 140 degrees or greater with no evidence of painful motion. There was no hyperextension or objective evidence of painful motion. Repetitive use testing was performed and the results were the same. The examiner noted no functional loss or impairment after repetitive motion, but observed tenderness to palpation along the joint line of the bilateral knees. Knee strength was 5/5 and there was no instability or evidence of subluxation or dislocation. No meniscal symptoms were noted. The examiner reported performing several maneuvers with the Veteran's knees to assess patellofemoral syndrome severity. The examiner reported that all maneuvers were only minimally positive and there was no crepitus, which would not be possible for someone with a significant disability. The examiner opined that the severity of the disabilities was very mild, and the reported symptoms were out of proportion to the objective pathology. Concurrent imaging showed no evidence of any arthritis. The examiner concluded that the Veteran's knee disorders were very mild disabling, and likely a result of continued running. In reference to the 2005 examiner's opinion that extra movement would result in additional functional loss, the 2012 examiner stated that type of additional loss was "not at all probable with this mild condition of the knees" and that the opinion was made by someone without adequate training. Although the Veteran complained of not being able to participate in physical exercise, the examiner noted that he mentioned in a different part of the interview that he "runs some during the week." The objective findings at the 2005 and 2012 VA examinations show a noncompensable limitation of motion in each knee. See 38 C.F.R. § 4.71a, Plate II. Further, there was no instability or subluxation. Although the 2005 examiner reported that the knee disabilities may result in additional function loss with repeated motion, there is no indication that any repeated motion testing was performed and the 2012 examiner has explained that such additional loss is not probable given the Veteran's disability picture. The Board finds the 2012 examiner's opinion more probative as it is more thorough, includes repetitive motion testing, expressly considers the Veteran's treatment history and activity level. The 2012 examiner explained the inconsistency in the 2005 opinion, and the Board finds the explanation highly probative. Owens, 7 Vet.App. at 433. As is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. X-rays conducted in 2005 and 2012 yielded negative results. The criteria for compensable evaluations have not been met at any point in the appellate period. The Veteran did inform the 2012 examiner that his knees "gave way" on rare occasion, but the examiner found no evidence of instability or subluxation. Further, the Board has found the Veteran not credible in regard to his contentions about his symptoms due to inconsistency with the other evidence of record. Caluza, 7 Vet.App. at 511-512. VA cannot ignore a veteran's testimony simply because the veteran is an interested party, but his personal interest may affect the credibility of the evidence. See Cartwright v. Derwinski, 2 Vet.App. 24, 25 (1991). The Board finds no competent, credible evidence to support the assignment of a compensable evaluation for the Veteran's right or left knee disabilities at any time during the appellate period. The Board considered whether any other Disability Code may be applicable to the Veteran's disability, but finds none. In regard to the specific disability addressed by Code 5257 - recurrent subluxation or lateral instability- although the Veteran reported giving way, that contention contradicted by the medical evidence of record and the Board has found him not credible. The Veteran has never been diagnosed with ankylosis of either knee, nonunion or malunion of the tibia and fibula, genu recurvatum, or dislocated/removed semilunar cartilage, hence, there is no basis for application of Codes 5256, 5262, 5263, 5258, or 5259. The symptoms presented by the Veteran's knee disabilities are fully contemplated by the rating schedule. There is no evidence the Veteran's disability picture is exceptional when compared to other veterans with the same or similar disability. Further, there is no competent and credible evidence that this disorder, at any time during the appellate term, necessitated frequent hospitalization or caused a marked interference with employment. Although the Veteran has contended that joint pain interferes with employment, no medical evidence supports that contention and his own statements (about his ability to walk and run) contradict that contention. The 2012 examiner expressly stated that his knee disabilities would not interfere with his ability to work. The Board finds no evidence to indicate referral for extraschedular consideration. Thun. 38 C.F.R. § 3.324 Whenever a veteran is suffering from two or more separate permanent service- connected disabilities of such character as to clearly interfere with normal employability, even though none of the disabilities may be of compensable degree under the Rating Schedule, the rating agency is authorized to apply a 10 percent rating, but not in combination with any other rating. 38 C.F.R. § 3.324. In this case, the Veteran has been assigned compensable evaluations for his service-connected foot and hip disabilities during the entire appeal period. Thus, the Veteran's claim must be denied because of the absence of legal merit or entitlement under the law. Sabonis v. Brown, 6 Vet.App. 426, 430 (1994). A total disability evaluation based on individual unemployability due to service-connected disabilities A total rating for compensation based upon individual unemployability is an element of all appeals of an increased rating. Rice v. Shinseki, 22 Vet.App. 447 (2009). Where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to a total rating for compensation purposes based on individual unemployability. Roberson, 251 F.3d 1378. Here the Veteran has attributed his unemployment to his service-connected disabilities. Specifically, he testified in February 2010 that he was let go from a technology job because he did not have adequate skills and he was not physically capable of "anything else." In these circumstances, under Roberson, the Board must consider whether he is entitled to a total disability evaluation based on individual unemployability due to service-connected disabilities In order to establish entitlement to individual unemployability benefits there must be an impairment so severe that it is impossible to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet.App. 524, 529 (1993). Neither non-service-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19. VA regulations establish objective and subjective standards for an award of total rating based on unemployability. When a veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned provided that if there is only one service-connected disability, this disability shall be rated at 60 percent or more. When there are two or more disabilities, at least one disability must be ratable at 40 percent or more, and any additional disabilities must result in a combined rating of 70 percent or more, and the disabled person must be unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). The Veteran is currently service connected for a right foot disability, rated as 10 percent disabling, a left foot disability rated as 10 percent disabling, a left hip disability rated as 10 percent disabling, a right hip disability rated as 10 percent disabling, a back disability rated as 10 percent disabling, and bilateral knee disabilities that are rated as non-compensable. His combined rating is 40 percent. He does not meet the schedular criteria for consideration of unemployability under 38 C.F.R. § 4.16(a) . Pursuant to 38 C.F.R. § 4.16(b), all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards of 38 C.F.R. § 4.16(a), are to be referred to the Under Secretary for Benefits or the Director, Compensation and Pension Service for consideration of an extraschedular evaluation. The Board must determine whether the Veteran is unemployable by reason of service-connected disabilities. The Veteran testified at a February 2010 hearing that his service-connected disabilities affected his employability in "any kind of work except for desk work." He then testified that he "d[id]n't have the skills for desk work." Service records reflect that the Veteran specialized in radio and communications security and had completed a 25 week course in radio and communications security repair. In June 2005, he informed VA examiners that he was attending school full-time, pursuing general studies. The claims file does not reflect that he completed any degree. He testified in February 2010 that he had worked for a computer services company providing telephone technology support. However, he reported that he did not have the skills necessary to continue in that job and felt as though his physical disabilities rendered him unable to perform any other job. The claims file does not reflect any other evidence of employment. Although the Veteran contends that his physical disabilities render him unable to pursue any type of employment other than desk work for which he argues he is not qualified by reason of education or training, the claims file reflects evidence to the contrary. Specifically, a June 2005 examination report reflects the Veteran's own report that he could "function at a high level" and stand for a "decent" amount of time. The Veteran informed the 2005 examiner that he was a full time student and could carry a book bag and books without any deficit. The examiner observed a normal gait and noted that the Veteran did not experience incapacitating episodes and could walk as far as he wanted. In January 2008, the Veteran informed a VA physical therapist that he ran one to two miles every other day, did 50 push-ups and sit ups most days, and stretched some. At a February 2008 appointment, he reported pulling weeds in the "family pond." In September 2008, he stated that he had gone for a long walk and completed a one mile run. At a January 2012 examination, the Veteran again reported some running. The 2012 examiner opined that "functionally there is no reason medically or orthopedically that this Veteran should not be able to work even doing walking and standing." The 2012 examiner's opinion indicates that the Veteran is malingering and that is supported by the appellant's own contradictory statements about his physical capabilities. The Board has found the Veteran is not credible in regard to his reports of symptom severity. Caluza, 7 Vet.App. at 511-512. As noted above, VA cannot ignore a veteran's testimony simply because the veteran is an interested party, but his personal interest may affect the credibility of the evidence. See Cartwright, 2 Vet.App. at 25. No medical professional has opined that the Veteran's service-connected disabilities alone render him unemployable. He is presently in receipt of a combined 40 percent evaluation and the ratings assigned are adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the injury. 38 C.F.R. § 4.1; Van Hoose, 4 Vet. App. at 361. The Court has held that a claim for a total disability evaluation based on individual unemployability due to service-connected disabilities may not be denied without producing evidence, as distinguished from mere conjecture, that the Veteran's disability does not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995). The medical evidence of record - specifically the January 2012 opinion of the board-certified VA orthopedic surgeon - is sufficient evidence that his service-connected orthopedic disorders alone do not render him unemployable. Despite his contentions to the contrary, the evidence reflects that he is not physically prohibited from work that involved standing and walking. The Veteran has not provided any evidence, other than his own statements, which are not credible, that his disabilities were so severe as to render him incapable of performing any work other than desk work. Accordingly, the Board concludes that the weight of the medical evidence, examined with the other evidence of record, indicates that the Veteran's service-connected disabilities do not render him unemployable. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough to warrant a grant of individual unemployability benefits. The claims file reflects evidence beyond mere conjecture that his service-connected disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia. In reach all of the foregoing decisions the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision with respect to any issue on appeal. ORDER Entitlement to an evaluation in excess of 10 percent for right foot pes planus with plantar fasciitis is denied. Entitlement to an evaluation in excess of 10 percent for left foot pes planus with plantar fasciitis is denied. Entitlement to an initial compensable evaluation for retropatellar pain syndrome of the left knee is denied. Entitlement to an initial compensable evaluation for retropatellar pain syndrome of the right knee is denied. Entitlement to a 10 percent evaluation for multiple noncompensable service-connected disabilities under 38 C.F.R. § 3.324 is denied. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs