Citation Nr: 1318174 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 08-30 809 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to a rating in excess of 20 percent for service-connected left patellar arthritis and chondromalacia, status post arthroscopy. 2. Entitlement to a rating in excess of 10 percent for service-connected right patellar arthritis and chondromalacia. 3. Entitlement to a rating in excess of 10 percent for right rotator cuff impingement syndrome. 4. Entitlement to a rating in excess of 10 percent for left rotator cuff impingement syndrome. 5. Entitlement to total disability rating for compensation based upon individual unemployability. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran served on active duty from February 1986 to October 1989. These matters are before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland Oregon. In a September 2012 decision, the Board restored a 20 percent rating for the Veteran's left knee disability. In the same decision, the Board remanded the claim for higher ratings for the left knee disability, a higher rating for the right knee disability, a higher rating for the right rotator cuff disability, and a higher rating for the left rotator cuff disability, for a VA examination to determine the current level of severity for all four disabilities. VA has afforded the Veteran a VA examination and the examiner has issued a report. In the report, the examiner sufficiently identified the extent of each service-connected disability and its symptoms. After review of the report, the Board finds the VA examination report is in compliance with 38 C.F.R. § 3.159(c) (4), that is, sufficient competent medical evidence to make a fully informed decision on the claim. As the requested development has been completed, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). In August 2012, the Veteran did not appear at a hearing before the Board. Without good cause shown for the failure to appear, the request for the hearing is deemed withdrawn. 38 C.F.R. § 20.704(d). The Board has reviewed both the Veteran's physical claims files and his Virtual VA file so as to insure a total review of the evidence. The Board notes that the Veteran is and has claimed he is unemployable due to his service-connected disabilities. The RO last denied the claim for a total disability rating for compensation purposes based upon individual unemployability (TDIU) by a rating decision dated March 1, 2010. The claims for increased ratings for the disabilities of his knees and shoulders are before the Board. The issue of whether entitlement to TDIU is warranted as a result of the service connected disabilities is part and parcel of the increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Thus, the TDIU issue is set forth on the first page of the decision. However, due to the finality of the March 1, 2010 unappealed rating decision which denied a TDIU, the rating period for consideration of the TDIU claim is from March 2, 2010, not the earlier date of receipt of the increased rating claims. FINDINGS OF FACT 1. Left patellar arthritis and chondromalacia status post arthroscopy is manifested by flexion limited to 120 degrees with pain, but with no additional functional loss due to pain, fatigue, weakness, incoordination, or lack of endurance with repetitive use; there also was no evidence of recurrent subluxation or lateral instability. 2. Right patellar arthritis and chondromalacia is manifested by flexion limited to 120 degrees with pain, but with no additional functional loss due to pain, fatigue, weakness, incoordination, or lack of endurance with repetitive use; there also was no evidence of recurrent subluxation or lateral instability. 3. Right rotator cuff impingement syndrome is manifested by pain with flexion to 120 degrees and abduction to 120 degrees, which does not more nearly approximate limitation of arm motion to shoulder level. 4. Left rotator cuff impingement syndrome is manifested by pain with flexion to 120 degrees and abduction to 130 degrees, which does not more nearly approximate limitation of arm motion to shoulder level. 5. Service connection is in effect for major depressive disorder and panic disorder, currently evaluated at 50 percent; left patellar arthritis and chondromalacia status post arthroscopy, currently evaluated at 20 percent; right patellar arthritis and chondromalacia, currently evaluated at 10 percent; bilateral rotator cuff impingement syndrome, with each shoulder currently evaluated at 10 percent; and allergic rhinitis, currently evaluated at 10 percent. 6. The Veteran has a combined rating of 80 percent or higher with a single disability rated at 40 percent or higher. 7. The competent evidence shows that, from March 2, 2010, the Veteran's service-connected disabilities, in combination, prevent him from securing and maintaining substantially gainful employment consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for left patellar arthritis and chondromalacia status post arthroscopy have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5257, 5260, 5261 (2012). 2. The criteria for a rating in excess of 10 percent for right patellar arthritis and chondromalacia have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5257, 5260, 5261 (2012). 3. The criteria for a rating in excess of 10 percent for right rotator cuff impingement syndrome have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5201, 5202, 5203 (2012). 4. The criteria for a rating in excess of 10 percent for left rotator cuff impingement syndrome have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5201, 5202, 5203 (2012). 5. The criteria for entitlement to total disability rating for compensation purposes based upon individual unemployability have been met from March 2, 2010. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claims. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). In a claim for increase, the VCAA notice requirements are the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting Veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Veteran was provided a pre-adjudication VCAA notice letter dated in September 2006. The notice included the type of evidence needed to substantiate the claims for increase, namely, evidence that the symptoms had increased. The Veteran was notified that VA would obtain service treatment records, VA records, and records from other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any non-Federal records on his behalf. The notice included the criteria for consideration in the assignment of an effective date in the event of award of the benefit sought, and the assignment of a disability rating. As for content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (38 C.F.R. § 3.159 notice); of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim); and of Vazquez-Flores v. Peake, 580 F.3d 1270 (Fed. Cir. 2009) (evidence demonstrating a worsening or increase in severity of a disability and the effect that worsening has on employment). Further VCAA notice is not required. As the claim for entitlement to a TDIU is granted in full herein, no further discussion as to VA's duties to notify and assist pursuant to the VCAA with regard to the TDIU issue is necessary. Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim. The RO has obtained service treatment records, VA records, and afforded the Veteran a VA examination in October 2006, February 2008, and November 2012. VA was advised by the Social Security Administration in December 2009 that it did not have any records. The reports of the VA examinations included a review of the Veteran's medical history, including his service treatment records, an interview and an examination of the Veteran, as well as sufficient findings to rate disability. Therefore, the Board concludes that the VA examinations are adequate. 38 C.F.R. § 4.2; see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board notes it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to each claim. Rating Principles A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155. 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Rating factors for a disability of the musculoskeletal system include functional loss due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40; see DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). With respect to joints, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; see DeLuca at 206-07. Also with arthritis or periarticular pathology, painful motion is factor to be considered. 38 C.F.R. § 4.59. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Board recognizes that the evidence supporting his claim for a higher rating includes his statements as to the severity of his service connected disabilities. The Board has considered his lay statements as to both his bilateral knee disabilities and his bilateral shoulder disabilities. In evaluating a claim for an increased schedular disability rating, however, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. Massey v. Brown, 7 Vet. App. 204, 208 (1994). The Board is not free to ignore VA's duly promulgated regulations, which include the Rating Schedule. Franklin v. Brown, 5 Vet. App. 190, 193 (1993). The Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Furthermore, in rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. That involves specialized knowledge or training in identifying injuries and diseases of the orthopedic or muscoskeletal system. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. No factual foundation has been established that the Veteran is otherwise qualified through specialized education, training, or experience to offer a medical diagnosis. Such competent evidence concerning the nature and extent of the Veteran's instability disability of either knee or either shoulder have been provided by the VA examiners, and the VA medical personnel who have examined him during the current appeal period and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which this disability is evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective testimony of increased symptomatology. Claims for Increased Ratings for the Knee Separate ratings for a knee disability may be assigned for limitation of flexion and for extension. VAOPGCPREC 9-04 (September 17, 2004). A separate rating may also be assigned for instability of the knee under Diagnostic Code 5257. Esteban v. Brown, 6 Vet. App. 259, 261 (1994) (laxity and loss of motion are separate and distinct disabilities) Limitation of knee flexion under Diagnostic Code 5260 is rated 10 percent with flexion limited to 45 degrees. Flexion limited to 30 degrees is rated 20 percent, and flexion limited to 15 degrees is rated 30 percent, the maximum schedular rating under that Diagnostic Code. Limitation of knee extension under Diagnostic Code 5261 is rated noncompensable or zero percent with extension limited to 5 degrees. Extension limited to 10 degrees is rated 10 percent. Extension limited to 15 degrees is rated 20 percent. Higher ratings are afforded under this Diagnostic Code for more severe limitation of extension. Subluxation or instability of the knee under Diagnostic Code 5257 is rated 10 percent for slight recurrent subluxation or lateral instability. Moderate recurrent subluxation or lateral instability is rated 20 percent. Severe recurrent subluxation or lateral instability is rated 30 percent. Normal range of knee motion is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. The Veteran was provided a VA examination in October 2006. The Veteran stated he has had the same type of pain as before but it is getting worse. He found it more difficult to perform his work as a mechanic. He had not lost any time from work. He tolerated the pain during work and used a forklift to help avoid any lifting or carrying. His job did require him to get onto his knees as well as stand for long periods of time. His knees swell a couple times a month associated with large activity. The Veteran did not use any assistive devices. He avoided stairs, climbing, sitting, or walking. On physical examination, there was no swelling, deformity, or discoloration. The examiner elicited tenderness to palpitation about the infrapatellar region and mild tenderness in the superior patella region. There was no tenderness on either the medial or lateral side. There was no joint line or popliteal space pain. The compression test resulted in an immediate reproduction of pain. The range of motion for each knee was from zero degrees to 138 degrees without gross complaints of pain. The Veteran's knees showed no signs of instability as the anterior drawer, Lachman's, and vargus/valgus stress test were all negative. The examiner estimated that the Veteran would lose an additional 15 to 20 degrees range of motion, strength, coordination, and fatigue associated with repetitive moves or flares bilaterally. The examiner concluded that the Veteran has tolerated the disability well at work and at home. The Veteran had not lost any time from work due to the disability of either knee. A second VA examination occurred in February 2008. The Veteran stated his pain was getting worse and no one wanted to hire him because of his physical problems, including the knees. He experienced knee pain climbing stairs and with extended standing. The knee pain also affected his sleep. Repetitive movement also caused pain. There was no swelling and the Veteran did not use any assistive devices but he was receiving braces from VA in the near future. The Veteran believed he could not tolerate any job involving physical labor. The range of motion for each knee was from zero degrees to 135 degrees without pain to 130 degrees. There was exquisite tenderness to all peripatellar structures and very mild tenderness at the medial and lateral joint lines. Strength was normal but that testing produced pain, especially with repetition of the strength testing. The Veteran's knees showed no signs of instability as the anterior drawer, Lachman's, and vargus/valgus stress test were all negative. The examiner estimated that the Veteran would lose an additional 20 to 25 degrees range of motion, strength, coordination, and fatigue associated with repetitive moves or flares bilaterally. The examiner concluded that the Veteran has tolerated the disability well at work and at home. The Veteran had not lost any time from work due to the disability of either knee. In a VA examination in November 2012, the Veteran complained of daily knee pain which is moderate at rest, but it gets worse with squatting and using stairs. He experiences flare-ups of the left knee four to five times a week and the pain becomes worse with squatting. The pain remains for the rest of the day. The right knee flare-ups are similar but only occur two to three times a week and the pain is not as severe. He slows down in walking when he has the more severe pain. The right knee motion ranged from zero to 120 degrees with pain at 120 degrees. The left knee motion also ranged from zero to 120 degrees with pain at 120 degrees. The range of motion for both knees remained the same after repetition. Functional loss was reported bilaterally as less movement than normal, pain on movement, excess fatigability, and swelling. The Veteran also reported instability of station and the knees interfered with sitting, standing, and weight-bearing. The Veteran stated that when the knees are severely painful, the motion is less. He can walk 1 mile slowly and stand for sixty minutes. He becomes stiff after sitting and has to get up slowly. The examiner also noted that muscle strength was normal. There was no instability as the anterior drawer, Lachman's, and vargus/valgus stress tests were all negative. There was no evidence of subluxation or dislocation or any meniscal conditions. The Veteran did wear knee braces on a regular basis, about once a week. The examiner noted the Veteran had worked in construction and mechanical work but last had a full time job seven years earlier. Since then he has had only odd jobs and told the VA examiner that no one wants to hire him because he is on pain medications and has knee and shoulder problems. He has the most trouble with squatting or kneeling but also prolonged standing and carrying heavy objects. His knee disabilities, however, would not be expected to impair sedentary labor. The Veteran's right knee disability does not warrant a rating higher than 10 percent at any time during the rating period for consideration on appeal. The schedular criteria for a higher evaluation contemplates knee flexion limited to 30 degrees or less. Even with consideration of pain and repetitive use, as demonstrated on VA examinations, the right knee demonstrated flexion to at least 110 degrees. Thus, the Board's finding applies even after considering functional loss due to pain, weakness, excess fatigability, swelling, deformity, atrophy, painful movement, and repetitive motion. See 38 C.F.R. §§ 4.40, 4.45, 4.59. As to the left knee, the criterion for a 30 percent rating for limitation of flexion under Diagnostic Code 5260 is not met. Even with consideration of pain and repetitive use, as demonstrated on VA examinations, the left knee demonstrated flexion to at least 110 degrees. Thus, the Board's finding applies even after considering functional loss due to pain, weakness, excess fatigability, swelling, deformity, atrophy, painful movement, and repetitive motion. See 38 C.F.R. §§ 4.40, 4.45, 4.59. While the Veteran did experience pain with flexion, the pain does not raise to the level of functional loss equating to flexion limited to 30 degrees. See Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011) (pain must affect some aspect of normal movement in order to constitute functional loss under 38 C.F.R. § 4.40). To this extent, the Board places greater weight on the objective findings of the VA examination than the Veteran's subjective complaints of pain. Extension to 0 degrees in both knees does not more nearly approximate or equate to extension limited to 10 degrees. Therefore, a 10 percent rating for limitation of extension under Diagnostic Code 5261 is not warranted. There is no indication there would be additional functional loss due to pain, weakness, excess fatigability, swelling, deformity, atrophy, or painful movement, and repetitive motion. 38 C.F.R. §§ 4.40, 4.45, 4.59. The Veteran did not have episodes of dislocation or subluxation. There was no instability or abnormal movement. In the absence of evidence of slight recurrent subluxation or lateral instability of the knee, the criterion for a separate, 10 percent rating under Diagnostic Code 5257 were not met. In sum, throughout the rating period on appeal, the criterion for a higher rating based on limitation of flexion under Diagnostic Code 5260, in excess of 10 percent for the right knee, and in excess of 20 percent for the left knee, have not been met, nor does the disability picture more nearly approximate the schedular criteria for a higher rating for either knee. Further, there is no evidence in the record that establishes a limitation of extension or instability of the knee warranting a separate rating under Diagnostic Codes 5261 and/or 5257. Finally, there is no evidence of other ratable pathology such as ankylosis, dislocated or removed semilunar cartilage, acquired or traumatic genu recurvatum, tibia and fibula impairment (malunion or nonunion) under Diagnostic Codes 5256, 5258, 5259, and 5263. For reasons expressed, the current evaluations more accurately reflects the actual degree of impairment shown for each knee since the Veteran filed his claim for a higher rating, and there is no basis for staged ratings. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. The preponderance of the evidence, however, is against the claims for a rating higher than 10 percent for the right knee and 20 percent for the left knee, and that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002). Claims for Increased Ratings for Rotator Cuff Impingement for Each Shoulder The Veteran is currently rated 10 percent for the rotator cuff impingement for each shoulder (shoulder disability) under Diagnostic Code 5201 for limitation of motion of the shoulder. The Veteran is right hand dominant. Under Diagnostic Code 5201, the criterion for a 20 percent rating, the next highest rating, is limitation of motion of the arm at shoulder level, that is, to 90 degrees of flexion or abduction. This rating applies whether the Veteran is right handed or left handed. Under Diagnostic Code 5202, impairment of the humerus, the criteria for a 20 percent rating, the lowest rating, are malunion of moderate deformity, or infrequent episodes of dislocation with guarding of movement only at shoulder level. Under Diagnostic Code 5203, malunion of the clavicle, the criteria for a 20 percent rating is dislocation or nonunion with loose movement of the clavicle or scapula. Normal range of motion in the shoulder is from 0 to 180 degrees of flexion, 0 to 180 degrees of abduction, and zero to 90 degrees of external and internal rotation. Flexion or abduction limited to 90 degrees equates to shoulder level. 38 C.F.R. § 4.71, Plate I. The Veteran was provided a VA examination in October 2006. The Veteran stated he has had the same type of pain as before but it is getting worse. The shoulders were sore and achy and he experienced flare-ups every two to three months when he had to make repetitive movements above the shoulder. The flare-up will last a week and there is pain with all movement. During a flare-up, the Veteran does not use the shoulders at all. There was no mechanical locking, clicking, popping, or swelling. The Veteran stated the shoulder was fine as long as no overhead activity was involved. He found it more difficult to perform his work as a mechanic. He had not lost any time but was able to tolerate the pain during the day and used a forklift to help avoid any lifting or carrying. The examiner found no swelling, discoloration, or deformity. Bilaterally, forward flexion was to 160 degrees and abduction to 155 degrees on active motion testing. The Veteran had 80 degrees external rotation and 70 degrees internal rotation. The Veteran experienced pain moving against resistance. The Hoffman's sign was positive and there was very mild tenderness. A second VA examination occurred in February 2008. The Veteran stated his pain was getting worse and no one wanted to hire him because of his physical problems. He described the shoulder pain as a deep seeded ache and would occur whenever he used his shoulders to lift, carry, bend, or twist. Repetitive movement also caused pain. Forward flexion and abduction of the right shoulder were both 160 degrees. He complained of pain at 125 degrees for both abduction and forward flexion. Forward flexion and abduction of the left shoulder were each to 140 degrees, and he complained of pain at 100 degrees. The Veteran had 80 degrees of external and internal rotation, bilaterally. He had a positive Hawkins test bilaterally, which reproduced pain to both shoulders. The examiner believed that a repetitive use flare-up would cause between 20-25 degrees loss of range of motion, as well as a loss of strength, coordination, and fatigue. In the examiner's opinion, the Veteran could tolerate sedentary work, but not any job involving physical labor. In November 2012, the Veteran underwent a third VA examination and complained of pain deep in his shoulders brought on by reaching overhead. The examiner noted the Veteran has also been diagnosed with bilateral carpal tunnel syndrome but that condition is not due to the bilateral rotator cuff impingement syndrome. The Veteran stated his hands become numb when he attempts overhead work but the examiner attributed the numbness to the carpal tunnel syndrome. The Veteran experiences flare-ups of the bilateral shoulder pain during and after overhead work. The pain is moderately severe and lasts a couple of hours. He is unable to work overhead during a flare-up. The Veteran had forward flexion and abduction in the right shoulder to 120 degrees with pain at the end (120 degrees). The left shoulder forward flexion was to 130 degrees with pain at the end, and abduction to 120 degrees with pain at the end. External rotation was to 90 degrees, bilaterally, with pain at the end, bilaterally. Internal rotation was to 80 degrees, bilaterally, with pain at the end. The Veteran had no changes with repetition. The examiner noted the Veteran had less movement than normal and with pain, weakness, and excessive fatigue. The examiner noted tenderness to palpitation, but no guarding. The Veteran had abduction strength of 4/5 and flexion strength of 5/5. There was no ankylosis, history of mechanical symptoms, or recurrent dislocations and/or subluxations. All clinical tests such as the Hawkin's impingement test were negative. The examiner also stated the Veteran did not have any acroclavicular joint condition, impairment of the clavicle or scapula, tenderness, or pathology of the shoulder. As noted above, on the most recent VA examination, in November 2012, the Veteran's right shoulder disability was manifested by flexion limited to 120 degrees and abduction limited to 130 degrees. Left shoulder flexion was limited to 130 degrees, and abduction was limited to 120 degrees. At all other relevant times during the appeal period, the Veteran's shoulder disabilities demonstrated greater range of motion. The demonstrated functional impairment, including pain on use, does not more nearly approximate or equate to flexion or abduction representing limitation of motion of the arm to the shoulder level, the criterion for the next higher rating higher for limitation of flexion under Diagnostic Code 5201. It was noted the Veteran had weakness and excess fatigue but the results did not change after repetition. Thus, the Board's finding applies even after considering functional loss due to pain, weakness, excess fatigability, swelling, deformity, atrophy, painful movement, and repetitive motion. See 38 C.F.R. §§ 4.40, 4.45, 4.59. Pain was present, but there was no change upon repetition. Functional loss due to pain is rated at the same level where functional loss is impeded. Stated another way, a range of motion may be possible beyond the point when pain sets in, but for rating the disability, only to the extent pain limits motion is considered. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). The Board thus finds an increased rating to 20 percent is not warranted for either shoulder under Diagnostic Code 5201. The Board recognizes that Veteran has problems with overhead work, i.e., tasks higher than shoulder level. The pain prohibits him from performing overhead tasks. Nevertheless, pain or the shoulder disabilities generally do not prevent the Veteran from using and moving either arm only to shoulder level. Thus, the Veteran's shoulder disabilities, even with pain continued to more nearly approximate the assigned 10 percent ratings. The current 10 percent ratings were assigned under 38 C.F.R. 4.59 in recognition of the Veteran's shoulder painful motion, tenderness, and mildly limited motion. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. 4.59A. Ten percent evaluations are assigned for painful or limited motion of a major joint or group of minor joints. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (when limitation of motion is noncompensable, a rating of 10 percent is for application for each major joint). The objective findings on clinical examination show the Veteran's right shoulder and left shoulder residuals continued to more nearly approximate the assigned 10 percent rating. As clinical examination revealed pain on motion, the 10 percent rating in fact compensates the Veteran for his functional loss due to his bilateral shoulder pain. 38 C.F.R. § 4.59; see also Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). In sum, at all relevant times, the Veteran never demonstrated limitation of motion of either arm to shoulder level. Therefore, the criterion for the next higher rating higher for limitation of flexion under Diagnostic Code 5201, 20 percent, have not been met. Furthermore, The Board finds that this disability picture of the Veteran does not approximate a limitation of the arm to shoulder level. As the evidence does not show ankylosis or impairment of the humerus, clavicle, or scapula, Diagnostic Codes 5200, 5202 and 5203 are not applicable. For reasons expressed, the preponderance of the evidence is against the claim for a rating higher than 10 percent for rotator cuff impingement of the right shoulder and the claim for a rating higher than 10 percent for rotator cuff impingement syndrome of the left shoulder and the benefit of the doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). Extraschedular Consideration Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for such a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe a disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service- connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). In this case there are no exceptional or unusual factors with regard to the Veteran's disabilities. In this regard, the Board notes that the Veteran has not had frequent periods of hospitalization. The Board acknowledges that the Veteran cannot find and maintain employment in the areas that he has training and experience because of his disabilities. The VA examiner in the November 2012 reported that the Veteran's knee disabilities limit his ability to perform physical labor. To this extent, it affected his employment, and is addressed below in his claim for total disability based upon individual unemployability. As to other aspects of limited function, the Veteran reported pain when using stairs or inclined surfaces or for overhead activities. As seen in the analysis above, the Board has considered these aspects of the Veteran's disabilities, and finds that the rating schedule adequately provides for ratings based on these symptoms or impairments. The Veteran also does not offer any explanation or argument to explain how the ratings assigned are inadequate to describe the symptoms and their effect upon his daily life. The evidence before the Board also does not establish any functional impairment that would not be covered or contemplated by the current schedular rating criteria. In short, his disability picture is contemplated by the rating schedule and the application of 38 C.F.R. §§ 4.120, 4.123, 4.124, and the assigned schedular evaluations are, therefore, adequate. Consequently, referral to the Under Secretary for Benefits or the Director, Compensation and Pension Service, under 38 C.F.R. § 3.321 is not warranted. As the rating schedule is adequate to rate the Veteran's bilateral knee and bilateral shoulder disabilities, referral for extraschedular consideration is not warranted. Claim for Total Disability Based Upon Individual Unemployability (TDIU) The Veteran contends that he is entitled to a TDIU because his service-connected disabilities prevent him from obtaining and maintaining gainful employment. As noted earlier, the Veteran's claims for increased ratings for his bilateral knee disabilities and bilateral shoulder disabilities also include a claim for total disability based upon individual unemployability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447 (2009) (in a claim for increase, where the Veteran expressly raises a claim for a total disability rating on the basis of individual unemployability or the claim is reasonably raised by the record, the claim is not a separate claim, but a part of a claim for increase). TDIU was last denied in a March 1, 2010 rating decision. Although the Veteran did not perfect an appeal of that decision, under Rice, the claim for a TDIU is nevertheless before the Board as part of the Veteran's claim for a higher rating for his knee and shoulder disabilities. As such, the Board will consider entitlement to a TDIU for the rating period from March 2, 2010, the day following the date of the prior final March 1, 2010 rating decision. A Veteran may be awarded TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation, consistent with his education and occupational experience, due solely to impairment resulting from his service-connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion but not to his age or the impairment caused by any non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294, 297 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). The test of individual unemployability is whether the Veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16; Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993) (central inquiry in TDIU is whether service-connected disabilities alone are of sufficient severity to produce unemployability). The word "substantially" suggests an intent to impart flexibility into a determination of a Veteran's overall employability, as opposed to requiring him to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378, 1385 Fed. Cir. 2001). The Veteran contends that he is entitled to TDIU because his service-connected disabilities prevent him from obtaining and maintaining gainful employment. For instance, in August 2006, the Veteran stated his profession was construction and heavy equipment work but because of his knee pain and inability to kneel or carry heavy objects, he could not find work The Veteran is currently service connected for: major depressive disorder and panic disorder, currently evaluated at 50 percent; left patellar arthritis and chondromalacia status post arthroscopy, currently evaluated at 20 percent; right patellar arthritis and chondromalacia, currently evaluated at 10 percent; bilateral rotator cuff impingement syndrome, with each shoulder currently evaluated at 10 percent; and allergic rhinitis, currently evaluated at 10 percent. The Veteran's combined disability rating from July 2007 to November 2009 was 70 percent, and since November 2009 has been 80 percent. It is again noted that the rating period for consideration of the Rice TDIU claim is from March 2, 2010, due to the finality of the March 1, 2010 rating decision. On VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, received in November 2009, the Veteran reported that he had completed high school, that he had occupational experience as a laborer, and that he had last worked in October 2002. . The Board also incorporates by reference the evidence discussed above regarding his bilateral knee disabilities and his bilateral shoulder disabilities. As noted, his shoulder disabilities limit use of his upper extremities, especially in performing overhead activities. His knee disabilities limit his ability to climb ladders or stairs, walk, stand, and to a lesser extent, sit, for prolonged periods. The Veteran is also service connected for major depressive disorder and panic disorder. Concerning that disability, in September 2006, it was noted the Veteran had been prescribed medication for depression and anger. In September 2007, the Veteran underwent a VA mental health examination. He was taking medication for psychiatric symptoms but no counseling or psychotherapy. He reported a frequent depressed mood, restless sleep, and nocturnal awakening. The Veteran was able to maintain his activities of daily living but typically ate only one meal a day. He had symptoms of intense anxiety, possibly panic attacks, when faced with a stressful situation. He has situational depression and is discouraged by his ongoing pain. Mood and stability had improved since he stopped using drugs. In the examination, the Veteran had spontaneous, but slow coherent speech. He was cooperative and had an appropriate affect. His mood was dysphoric. The Veteran's attention was intact. Both his thought process and thought content were intact and he understood the outcome of behavior. He was alert and oriented to time, place, and person. The Veteran partially understood he has a problem. There were no delusions or hallucinations and he did not engage in obsessive or ritualistic behavior. There were no suicidal thoughts or episodes of violence and he had good impulse control. His memory appeared normal. It was noted that the Veteran had worked as a mechanic but currently sold scrap metal and worked odd jobs part time. The diagnosis was dysthymia and the GAF was 63. The examiner noted the Veteran had difficulty performing manual labor due to pain and mobility in the knees. His depression may cause mild additional impairment in performing occupational tasks, but they did not preclude regular employment. The Veteran reported in January 2009 that he has worked in construction, heavy equipment, and as a mechanic. He has no other skills. No one would hire him because he has been prescribed narcotics and that he has been warned by his physicians that he should not engage in work that would exacerbate his knees. The only kind of work he knows how to perform is his past work such as construction. He lives in a friend's house that, in lieu of rent, he and his wife were re- painting. By September 2009, it appears he had obtained a job that required him to work out of town, but the nature of the job was not recorded. Another note that same month stated he was doing some construction work for the friend/landlord. The Veteran underwent a VA examination in January 2010. He reported he last worked in August and September 2009 as a part time construction laborer but left due to his knee and shoulder problems. His longest period of employment occurred in the 1990s as a heavy equipment mechanic. During the last seven years, he has worked three months a year. His physical disabilities make it difficult for him to work. He reported sleep problems and has concentration problems. He suggested he felt chronically sad and dythymic for several years. He also has a panic attack weekly. He leaves his house, but leaves with trepidation. He also does not like to drive outside of his neighborhood. The Veteran had used methamphetamine but has been sober for 5 years. The Veteran had an appropriate appearance and he had no difficulty communicating with the VA examiner. The Veteran did not have any thought processing difficulties such as hallucinations or delusions. His affect was irritable and his mood appeared dysthymic. The Veteran described nihilistic thought content, but denied suicidal or homicidal ideation. Cognitive function was intact. The examiner diagnosed mild to moderate major depression secondary to his physical conditions, panic disorder with mild agoraphobia, and polysubstance abuse in remission. The GAF was 58. The examiner concluded that the Veteran was able to work but in a setting where there is little interaction with the public or supervision. He would have difficulty in crowded work settings, extensive dealings with the public, or if cooperation with others was often necessary. The record reflects that the Veteran has attempted work but it does not appear he has been able to sustain it or finds performance of his duties difficult. There is evidence he has attempted some work such as in September 2009, but he told the VA examiner in January 2010 that he worked only two months and left because of his physical disabilities causing pain and limiting function. He has only worked for about 3 months a year for the previous 5 years. In October 2010, he reported working part time as a delivery driver. The vibrations from the truck, however, caused increased pain in his shoulders. The Board finds that the evidence supports granting the Veteran's TDIU claim. The competent evidence shows that the Veteran's service-connected major depressive disorder, bilateral shoulder disabilities, and bilateral knee disabilities are sufficient to render him unemployable. He has functional limitations in tasks requiring that he grip a tool or perform overhead work. Further, regardless of the job setting, including a sedentary position, he has difficulty with standing and walking. Even sitting for a long period causes stiffness. "Substantially gainful employment" is that employment which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). As further provided by 38 C.F.R. § 4.16(a), marginal employment shall not be considered substantially gainful employment. The Board acknowledges the Veteran has had some employment such as the part time delivery position or that he helped a friend renovate a house. It does not appear that any of these positions were full time and allow him to live above the poverty level. The ability to work only a few hours a day or only sporadically is not the ability to engage in substantive gainful employment. Moore, 1 Vet. App. at 358. At best, the Veteran's work has been marginal employment. Further, in evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In the Veteran's case, the evidence reflects that his education and training has equipped him only for construction or other labor intensive positions which are now precluded by both his bilateral knee disabilities and his bilateral shoulder disabilities. Further, while the VA examiner in January 2010 stated he could work in a sedentary position, his mental health disability limits him even further because the Veteran also requires a position where the Veteran does not have to work with the public, or where he has to interact with co-workers and supervision. The Board finds that the combined limitations placed upon any employment situation make it difficult, if not impossible, for the Veteran to secure and maintain a substantially gainful position. The central inquiry in determining whether a Veteran is entitled to a TDIU is whether service-connected disabilities alone are of sufficient severity to produce unemployability. See Hatlestad, supra. As further observed by the VA General Counsel, "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91. Here, the evidence is that the service connected disabilities are of sufficient severity to render the Veteran practically unemployable. The ability to work limited by physical and psychiatric disabilities, clearly indicates it would make employment difficult, if not impossible, for the Veteran. The Board therefore finds he is unable to secure and maintain substantially gainful employment solely as a result of his service-connected disabilities. The Board notes that throughout the rating period on appeal, from March 2, 2010, the Veteran's currently combined disability evaluation for compensation was 80 percent. In addition, during the relevant period at least one single service-connected disability was ratable at 40 percent or more (in this case, major depressive disorder). Accordingly, the Veteran is entitled to a TDIU on a schedular basis. See 38 C.F.R. § 4.16(a). Thus, resolving all doubt in his favor, and in light of the holding in Rice, the evidence establishes that the Veteran is unable to secure and maintain substantially gainful employment, consistent with his education and occupational experience, from March 2, 2010. Because of this finding and the schedular criteria for a TDIU have been met, the Board finds that entitlement to TDIU is warranted from March 2, 2010. ORDER Entitlement to a rating in excess of 20 percent for service-connected left patellar arthritis and chondromalacia, status post arthroscopy, is denied. Entitlement to a rating in excess of 10 percent for service-connected right patellar arthritis and chondromalacia is denied. Entitlement to a rating in excess of 10 percent for right rotator cuff impingement syndrome is denied. Entitlement to a rating in excess of 10 percent for left rotator cuff impingement syndrome is denied. Entitlement to a TDIU from March 2, 2010 is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs