Citation Nr: 1329229 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 12-18 729 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to an initial disability rating greater than 10 percent for service-connected peripheral neuropathy of the left lower extremity. 2. Entitlement to an initial disability rating greater than 10 percent for service-connected peripheral neuropathy of the right lower extremity. 3. Entitlement to a disability rating greater than 10 percent for service-connected degenerative arthritis of the right knee. 4. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from August 1971 to October 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2010 and November 2010 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO), in Manchester, New Hampshire. In August 2010, the RO granted service connection for peripheral neuropathy of the right and left lower extremities and assigned each initial 10 percent disability ratings. The RO also denied an disability rating greater than 10 percent for the service-connected degenerative arthritis of the right knee. The Veteran expressed disagreement with the respective disability ratings. In November 2010, the RO denied entitlement to a TDIU. The Veteran timely filed an notice of disagreement. He has perfected as substantive appeal as to each issue. In July 2013, the Veteran testified at a video conference hearing over which the undersigned Veterans Law Judge presided. A transcript of that hearing has been associated with his claims file. The provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the July 2012 hearing, the undersigned clarified the issues on appeal and inquired as to the severity of the Veteran's asserted symptoms. The Veteran was offered an opportunity to ask the undersigned questions regarding his claims. The Board, therefore, concludes that it has fulfilled its duty under Bryant. In July 2013, the Veteran submitted a private medical record providing the results of diagnostic testing associated with cardiac function. As service connection is in effect for coronary artery disease, the Board construes this correspondence as an informal claim for an increased disability rating for said disability. The issue has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Peripheral neuropathy of the left lower extremity is manifested by no more than mild incomplete paralysis during the entire pendency of the claim. 2. Peripheral neuropathy of the right lower extremity is manifested by no more than mild incomplete paralysis during the entire pendency of the claim. 3. Right knee disability is not manifested by recurrent subluxation or lateral instability; right knee flexion is at least to 120 degrees and extension is full. 4. Resolving all reasonable doubt in the Veteran's favor, his service-connected disabilities preclude gainful employment for which his education and occupational experience would otherwise qualify him. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for peripheral neuropathy of the left lower extremity are not met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8524 (2012). 2. The criteria for an initial disability rating in excess of 10 percent for peripheral neuropathy of the right lower extremity are not met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8524 (2012). 3. The criteria for a disability rating in excess of 10 percent for degenerative arthritis of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261 (2012). 4. The criteria for a TDIU have been met. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. By letters dated in January 2010, February 2010, March 2010, May 2010, and August 2010 the Veteran was notified of the evidence not of record that was necessary to substantiate his claims. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. He was also provided with the requisite notice with respect to the Dingess requirements. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. Concerning the claims for an increased initial disability rating for peripheral neuropathy of the left and right lower extremities, the appeal arises from a grant of service connection in an August 2010 rating decision; and as the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify the Veteran in this case has been satisfied. See Hartman v. Nicholson, 483 F.3d 1311 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Nevertheless, in the above-mentioned letters and other correspondence provided by the RO, the Veteran was notified of 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, as well as general notice regarding how disability ratings and effective dates are assigned. For the remaining increased compensation claims, the VCAA requirement is generic notice, that is, 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, as well as general notice regarding how disability ratings and effective dates are assigned. See Vazquez-Flores v. Shinseki, 580 F. 3d 1270 (Fed. Cir. 2009); Wilson v. Mansfield, 506 F.3d 1055 (Fed. Cir. 2007). In this case, the Veteran was provided pertinent information in the above-mentioned letters and other correspondence provided by the AOJ. Specifically, VA informed the Veteran of the necessity of providing, on his own or by VA, medical or lay evidence demonstrating a worsening or increase in severity of the respective disability, and the effect that the worsening has on his employment and daily life. The Veteran was informed that should an increase in disability be found, a disability rating would be determined by applying the relevant diagnostic codes; and examples of pertinent medical and lay evidence that he could submit relevant to establishing entitlement to increased compensation. The Veteran was also provided notice of the applicable relevant diagnostic code provisions. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service, VA, and private medical treatment records have been obtained. There is no indication of any additional, relevant records that the RO failed to obtain. The Veteran has been medically evaluated. In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. Increased disability ratings Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating 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. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2012); Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Where a Veteran is appealing the initial assignment of a disability rating, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. 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. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Words such as "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. 4.6 (2012). Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2012). It is possible for a Veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 38 C.F.R. § 4.14 (2012) (precluding the assignment of separate ratings for the same manifestations of a disability under different diagnoses). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45 (2012). VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. When rating spine disabilities, the Board must discuss any additional limitation of motion that a Veteran has due to pain, weakness, or fatigue. See Cullen v. Shinseki, 24 Vet. App. 74, 85 (2011). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The guidance provided under DeLuca must be followed in adjudicating claims where a rating under the diagnostic code provisions governing limitation of motion should be considered. However, the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the diagnostic code provisions predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the rating 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. § 4.59 (2012). Peripheral Neuropathy of the Left and Right Lower Extremities The Board notes that in Buie v. Shinseki, 24 Vet. App. 242 (2010), the United States Court of Appeals for Veterans Claims (Court) held that even in increased rating claims, when VA receives a submission of new and material evidence within one year of a rating decision addressing the condition, 38 C.F.R. § 3.156(b) (2012) requires any subsequent decision to relate back to the original claim. Id. at 251-52; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). A review of the Veteran's claims file reveals that following the issuance of the February 1997 rating decision granting service connection for diabetes mellitus, there is no evidence received within one year which relates to any peripheral neuropathy associated thereto. Thus, with respect to the Veteran's claim seeking an increased initial disability rating, the August 2010 rating action is the proper rating decision on appeal. The Veteran's peripheral neuropathy of the left and right lower extremities has been rated separately as neurological a condition under 38 C.F.R. § 4.124a, Diagnostic Code 8524, which provides the criteria for paralysis of the popliteal nerve. Under this diagnostic code provision, a 10 percent disability rating is warranted where there is mild incomplete paralysis. A 20 percent disability rating is warranted where there is moderate incomplete paralysis. A 30 percent disability rating is warranted where there is severe incomplete paralysis. Complete paralysis warrants a maximum 40 percent disability rating. "Complete paralysis" of the popliteal nerve is manifested by plantar flexion lost, frank adduction of the foot impossible, flexion and separation of toes abolished, no muscle in sole can move, in lesions of the nerve high in popliteal fossa, plantar flexion of the foot is lost. 38 C.F.R. § 4.124a, Diagnostic Code 8524 (2012). "Incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type given for complete paralysis, whether due to varied level of the nerve lesion or partial regeneration; when the involvement is wholly sensory, the rating should be for the mild, or at most the moderate, degree. 38 C.F.R. § 4.124a, Diagnostic Codes 8410 to 8540 (Diseases of the Peripheral Nerves). Private outpatient treatment record from S. R. Rudman, D.P.M., dated from January 2009 to December 2009 show that the Veteran had developed diabetic neuropathy of the lower extremities. Physical evaluation of the lower extremities revealed decreased sensation to vibration, pin-prick, and light touch. A VA outpatient treatment record dated in March 2010 shows that a complete visual examination of the feet was normal. Examination of sensation of the feet utilizing a monofilament was also normal. A VA examination report dated in July 2010 shows that the Veteran reported primarily experiencing numbness in the feet extending up both lower extremities. He also described some tingling of the toes and some achy pain which was rather vague in nature. He denied any severe burning pain. There was no evidence of any foot ulcerations of skin breakdown. He was not on any specific treatment for neuropathy. He did no perceive any motor weakness. There were no flare-ups of neuropathy symptoms. The symptoms were more or less constant and slowly progressive. Physical examination revealed no peripheral edema of the extremities. Right and left dorsalis pedis and posterior tibial pulses were 2+ and symmetric. There was no evidence of skin ulcerations or breakdown. Neurologic examination of the lower extremities revealed that they were symptomatic, with diminished sensation to filament over the plantar surface in the toes of both feet which extended over the dorsum of the feet and to slightly above the ankle level. Sensation to pinprick was also diminished in the same locations. These were all in a stocking-like distribution. There was no loss of motor strength or evidence of muscle weakening or atrophy in the lower extremities. The diagnosis was peripheral neuropathy of the bilateral lower extremities that was manifest as sensory paralysis of branches of the distal popliteal nerves. This condition was said to affect the Veteran's ability for prolonged standing and ambulation. There was also increased risk of minor trauma and infection to the feet bilaterally. It would decrease stamina for chores, shopping, and other daily activities requiring him to be on his feet for prolonged periods of time. During his July 2013 hearing, the Veteran described experiencing constant pain that he rated as a two to three in severity on a scale of 10. He noted that when sitting, it would be a two, but when up and moving around, it would increase in severity. He added that sitting and resting would relieve the symptoms. He also reported experiencing constant numbness, and tingling that was not as constant. He indicated that he was prescribed orthotics. Having considered the medical evidence of record, the Board finds that the Veteran's peripheral neuropathy of the left and right lower extremities does not meet the criteria for the assignment of the next higher 20 percent disability rating for incomplete paralysis. In this regard, there is no indication that either left or right lower extremity disability is manifested by either moderate or severe incomplete paralysis or by complete paralysis. The Veteran has described his symptoms a two or three on a scale of 10 in severity. The VA examiner in March 2010 found the feet to be within normal limits. The VA examiner in July 2010 determined that right and left dorsalis pedis and posterior tibial pulses were 2+ and symmetric, with diminished sensation to filament and pinprick, but with no loss or motor strength, muscle weakening, or atrophy. Clinical evidence does not show that the Veteran's symptoms cause anything more than mild impairment. Accordingly, review of the medical evidence does not show that the Veteran warrants a disability rating greater than the currently assigned 10 percent in each lower extremity. The Board has considered the statements of the Veteran as to the extent of his current symptoms. He is certainly competent to report that his symptoms are worse. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In evaluating a claim for an increased schedular 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. Accordingly, the Board finds that the overall disability picture over the entire course of the claim period most closely approximates the criteria for a 10 percent disability rating. The Board has considered whether a staged rating is appropriate in the present case, however, the Veteran's symptoms remained constant throughout the course of the claim period and, as such, staged ratings are not warranted. See Fenderson, supra. The preponderance of the evidence is against the claim of a disability rating higher than 10 percent for peripheral neuropathy of each lower extremity; therefore, the claims must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Degenerative Arthritis of the Right Knee A review of the Veteran's claims file reveals that following the issuance of the June 1983 rating decision granting service connection for the Veteran's right knee disability, there is no evidence received within one year which relates to the right knee. Thus, with respect to the Veteran's claim seeking an increased disability rating, the August 2010 rating action is the proper rating decision on appeal. See Buie, 24 Vet. App. at 251-52; Bond, 659 F.3d at 1362. The Veteran's right knee disability has been rated under Diagnostic Code 5010 for arthritis, which provides that a claim shall be rated under the criteria of Diagnostic Code 5003 for degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2012). Diagnostic Code 5003 mandates that the disability be rated upon the limitation of motion of the specific joint or joints involved. If the disability is noncompensable under the appropriate diagnostic code provision for the joint involved, a 10 percent disability rating will be for application for such major joint or group of minor joints affected by limitation of motion. Limitation of motion needs to be objectively shown by findings such as swelling, muscle spasm, or painful motion. In the absence of limitation of motion, a 10 percent disability rating is warranted for X-ray evidence of involvement of two or more major joints or two or more minor joint groups; and a 20 percent disability rating is warranted with X-ray evidence of involvement of two or more major joints or two or more minor joints with occasional incapacitating exacerbations. Id. Crepitation either in the soft tissues such as the tendons or ligaments, or within the joint structures, should be considered as points of contact which are diseased. 38 C.F.R. § 4.59 (2012). Limitation of motion of the knee is rated under Diagnostic Codes 5260 for flexion and 5261 for extension. Under Diagnostic Code 5260, flexion that is limited to 45 degrees warrants a 10 percent disability rating; flexion that is limited to 30 degrees warrants a 20 percent disability rating, and flexion that is limited to 15 degrees warrants a maximum 30 percent disability rating. 38 C.F.R. § 4.71a , Diagnostic Code 5260 (2012). Under Diagnostic Code 5261, extension that is limited to 10 degrees warrants a 10 percent disability rating and extension limited to 15 degrees warrants a 20 percent disability rating. Extension limited to 20 degrees warrants a 30 percent disability rating, extension limited to 30 degrees warrants a 40 percent disability rating, and extension limited to 45 degrees warrants a maximum 50 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2012). Standard motion of a knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II (2012). In VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997), VA's General Counsel held that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Code 5003-5010 (for the arthritis) and Diagnostic Code 5257 (for the instability) based on additional disability. Likewise, if a claimant has a disability rating under Diagnostic Code 5003 for arthritis of the knee, and there is evidence of instability, a separate rating is available under Diagnostic Code 5257. See VAOPGCPREC 9-98 (August 14, 1998). It is also possible to receive separate ratings for limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) for disability of the same joint. See VAOPGCPREC 9-2004 (Sept. 17, 2004). A private progress note from the Family Physicians of Manchester, dated in July 2009, shows that the Veteran reported right knee pain. He described recent activity resulted in soreness and stiffness in the knee. He added that it felt like it would give out. He noticed it was worse going up and down stairs. There was no swelling or locking. Physical examination revealed the right knee had full range of motion with flexion to 120 degrees. There was mild tenderness at the medial joint line. Drawer, Apley, and McMurray tests were negative. He did have some crunching of the patella. The assessment was knee pain, probably degenerative joint disease. X-rays revealed moderate degenerative changes and moderate patellar spurring. A VA examination report dated in July 2010 shows that the Veteran described intermittent right knee pain that has slowly increased in severity. He describes symptoms of feeling like the knee was somewhat unstable, especially when going up stairs or with any stepping up motion such as getting up on a stool. He felt that the knee may lock up at times, but there did not appear to be any actual limitation of motion. He noted some recent cracking and grinding sensations when moving the knee. He had not had any falls. He felt at times it was partially buckled, but he was able to prevent himself from falling by grabbing onto nearby railings, furniture, or other objects. He had not recently noted any swelling. There was no history of recent effusion. The knee did not appear to be tender. He reported some physical therapy within the preceding two years, which would somewhat help temporarily. He was not receiving any current treatment for the right knee other than taking over-the-counter medication on an as needed basis. He reported flare-ups, which were rather vaguely described. This seemed to be more a symptom of intermittent increased pain, which may occur two to three times weekly in the recent past, lasting for up to several hours. He could not describe any precipitating factors. These would appear to occur randomly. He noted that the flare-ups were occurring more frequently prior to his recent course of physical therapy. He did not require a cane or any other assistive device for ambulation. He did not have a knee brace. He reported limitations of standing of about five to 10 minutes, after which he would need to sit down. He had no history of any surgery on the right knee. Physical examination of the right knee revealed that there was slight sense of bony swelling of the knee. No effusion or signs of synovitis were present. There was some grinding sensation with flexion and extension. Medial and lateral ligaments were stable. Drawer sign was normal. McMurray's test was negative. Range of motion of the right knee was full extension at zero degrees and flexion to 140 degrees. Following three repetitions of flexion and extension, there was no change in the above-noted measurements. There was slight pain noted with motion initially, and he reported slight increase in pain following three repetitions. For comparison, the left knee range of motion was also full from zero to 140 degrees without any evidence of pain and no change following three repetitions. On the day of examination, the Veteran had a normal range of motion, both before and after repetitions with only slight increase in discomfort. The Veteran did complain of some flare-ups manifested mainly by an increased amount of pain. The examiner concluded that based on examination results, no additional loss of range of motion would likely be expected in the right knee with flare-ups or repetitious use. The diagnosis was degenerative arthritis of the right knee. The diagnosis was based on examination and Veteran's X-rays taken in July 2009 showing degenerative changes. The examiner added that this condition would have affects on the Veteran's activities in terms of restricting prolonged standing, kneeling, squatting, climbing stairs, or other chores involving repetitious use of the knee. During the July 2013 hearing, the Veteran described that his right knee had been painful and wobbly. He added that he was on medication, and that he was worried about being lightheaded while going up stairs. He added that once in awhile when walking, he would stumble. When asked if the knee would give out, he stated that it would feel like it was going to give out, but that he had never actually fallen as he would catch himself. He would use a handrail on stairs so as not to fall. He reported constant pain, but denied swelling. He did not wear a brace, but would use a cane for ambulation on occasion. Having considered the medical evidence of record, the Board finds that the Veteran's right knee disability does not meet the criteria for the assignment of the next higher 20 percent disability rating. The evidence of record, as detailed in pertinent part above, does not show a range of motion finding that warrants a disability rating greater than 10 percent under either Diagnostic Codes 5260 or 5261. 38 C.F.R. § 4.7. Specifically, in July 2009, the Veteran had motion from zero degrees of extension to 120 degrees of flexion, and in July 2010, he had motion from zero degrees of extension to 140 degrees of flexion. As a result, the criteria for a compensable disability rating [let alone the next higher 20 percent (flexion of 30 degrees/extension of 15 degrees)] for limitation of knee flexion or extension are not met under either Diagnostic Codes 5260 or 5261. Notwithstanding the above findings, as provided by Diagnostic Code 5003, in the absence of limitation of motion extensive enough to warrant a compensable disability rating under Diagnostic Codes 5260 or 5261, a disability rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion has been objectively confirmed. The Veteran's pain has already been considered in granting the 10 percent disability rating. Thus, he is in receipt of the maximum rating to which he is entitled under Diagnostic Code 5003. Consideration has been given to assigning a higher disability rating based on functional loss due to pain, weakness, fatigability, and incoordination causing additional disability beyond that reflected on range of motion measurements pursuant to 38 C.F.R. §§ 4.40, 4.45, and DeLuca. However, in the July 2010 VA examination of record, there was no additional loss of range of motion or functional impairment following repetitive use. Additionally, even when additional functional loss is considered, there is no persuasive evidence that flexion is limited to 30 degrees or extension is limited to 15 degrees so as to warrant the next higher disability rating of 20 percent in the right knee. In considering a separate disability rating under Diagnostic Code 5257, which provides the rating criteria for other impairment of the knee manifested by subluxation or lateral instability. The Board finds that, while the Veteran has reported that his knee on occasion felt like it would give out, he also reported that he had never fallen. Furthermore, Drawer sign and McMurray's tests was negative, and there has never been a diagnosis of either subluxation or lateral instability. As such, the assignment of a separate disability rating under Diagnostic Code 5257 would not be warranted. In considering the applicability of other diagnostic codes, the Board notes that Diagnostic Code 5258 provides the rating criteria for dislocation of semilunar cartilage and Diagnostic Code 5259 provides the rating criteria for symptomatic removal of semilunar cartilage. Under Diagnostic Code 5258, a 20 percent disability rating is warranted when there is dislocation of the semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. In this regard, the Board finds that a separate rating would not be warranted under Diagnostic Code 5258 because the medical evidence of record does not show that there is dislocation with frequent episodes of locking and effusion into the joint. Under Diagnostic Code 5259, a 10 percent disability rating is warranted for symptomatic removal of the semilunar cartilage. The medical evidence of record has not shown that the Veteran has undergone symptomatic removal of the semilunar cartilage of right knee. Therefore, separate consideration under Diagnostic Code 5259 is not warranted. The Board also finds that Diagnostic Code 5262 (impairment of the tibia and fibula) and Diagnostic Code 5263 (genu recurvatum) are not applicable here, as the medical evidence does not show that the Veteran has any of these disabilities. 38 C.F.R. § 4.71a, Diagnostic Codes 5262, 5263. The Board further finds that, since the date of the Veteran's claim for an increased disability rating, there were no distinct periods of time during which his right knee warranted a disability rating higher than that currently assigned. Accordingly, he is not entitled to receive a staged disability rating. See Hart, supra. Additionally, the Board has considered the statements of the Veteran as to the extent of his current symptoms. He is certainly competent to report that his symptoms are worse. Layno, 6 Vet. App. at 470. However, in evaluating a claim for an increased schedular rating, 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. The preponderance of the evidence is against the claim of a disability rating higher than 10 percent for degenerative arthritis of the right knee, therefore, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert , 1 Vet. App. at 49. Extra-schedular Consideration Finally, the Board finds that the Veteran's bilateral peripheral neuropathy of the lower extremities and right knee disability do not warrant referral for extra-schedular consideration. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extra- schedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id; see 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Board finds that the evidence does not warrant referral of the Veteran's claim for extra-schedular consideration. The level of severity of the Veteran's bilateral peripheral neuropathy of the lower extremities and right knee disability is contemplated by the applicable diagnostic criteria. The criteria provide for a higher rating, but as has been discussed above, the ratings assigned herein are appropriate. In view of the adequacy of the disability rating assigned under the applicable diagnostic criteria, consideration of the second step under Thun is not for application in this case. Accordingly, the claims will not be referred for extra-schedular consideration. TDIU Total disability ratings for compensation will be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340 and 4.16(a). However, if there is only one such disability, it shall be ratable at 60 percent or more, and, 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. § 4.16(a). In determining whether an individual is unemployable by reason of service-connected disabilities, consideration must be given to the type of employment for which the Veteran would be qualified. Such consideration would include education and occupational experience. Age may not be considered a factor. 38 C.F.R. § 3.341. Unemployability associated with advancing age or intercurrent disability may not be used as a basis for assignment of a total disability rating. 38 C.F.R. § 4.19. While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term as "that 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." Also, in Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (Court) defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income . . ." In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court also discussed the meaning of "substantially gainful employment." In this context, the Court, citing Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975), noted the following standard: It is clear that the claimant need not be a total "basket case" before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Marginal employment, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16(a). See also, Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). That is, a Veteran may be considered unemployable upon termination of employment that was provided on account of disability or in which special consideration was given on account of the same. See 38 C.F.R. § 4.18. Service connection is in effect for coronary artery disease, rated at 60 percent; diabetes mellitus, rated at 20 percent; peripheral neuropathy of the left lower extremity, rated at 10 percent; peripheral neuropathy of the right lower extremity, rated at 10 percent; degenerative arthritis of the right knee, rated at 10 percent; bilateral inguinal hernia repair, rated as noncompensable, and left ear hearing loss, rated as noncompensable. The combined disability rating during is 80 percent. As such, the Veteran satisfies the requirements under 4.16(a) and the sole question, thus, becomes whether his service-connected disabilities, in and of themselves, preclude him from securing or following a substantially gainful occupation. During his July 2013 hearing, the Veteran reported having to take early retirement from a shop teacher because of the pain associated with standing for prolonged periods of time. He added that his last two years were very painful. He indicated that he could not work because all jobs that he had applied for required certain physical activities that he could not perform. He added that if he had a position where he could sit down, he could probably work part time. However, if it required any lifting, walking, carrying, or just standing, he could not undertake the position. He also noted that his heart disability prevented any strenuous activity, and that he could not walk or stand for any significant period of time. He reported that he had a bachelors degree, but that his entire career was teaching in the technical field which was not sedentary. In evaluating the Veteran's service-connected ischemic heart disease during the July 2010 VA examination, the VA examiner indicated that the condition would have a significant effect on the Veteran's daily activities with inability to perform harder physical labor and restrictions on exercise of an aerobic nature. In evaluating the bilateral peripheral neuropathy of the lower extremities, the VA examiner added that the condition would affect Veteran's ability for prolonged standing and ambulation; increase the risk of minor trauma and infection to the feet bilaterally; and decrease stamina for chores, shopping, and other daily activities requiring him to be on his feet for prolonged periods of time. The right knee disability was said to have affects on the Veteran's activities in terms of restricting prolonged standing, kneeling, squatting, climbing stairs, or other chores involving repetitious use of the knee. A private medical record dated in April 2013 shows that the Veteran's cardiac function assessment resulted in metabolic equivalents (METs) of 2.1. This is suggestive of a heart workload that results in dyspnea, fatigue, angina, dizziness, or syncope. See generally, 38 C.F.R. § 4.104. Based on the foregoing evidence of record, and resolving doubt in the Veteran's favor, the Board finds that he is unemployable due to his service-connected disabilities taken as a whole. The medical evidence referenced above shows that the Veteran is not working, and that his employment history has primarily encompassed work that required prolonged standing and physical activity. In light of the findings of the July 2010 VA examiner and the private medical treatment record dated in April 2013, the Board resolves reasonable doubt in the Veteran's favor to find that his service-connected disabilities have combined to make him incapable of obtaining or retaining substantially gainful employment. ORDER An initial disability rating greater than 10 percent for service-connected peripheral neuropathy of the left lower extremity is denied. An initial disability rating greater than 10 percent for service-connected peripheral neuropathy of the right lower extremity is denied. A disability rating greater than 10 percent for service- connected degenerative arthritis of the right knee is denied. A TDIU is allowed, subject to the applicable criteria governing the payment of monetary benefits. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs