Citation Nr: 1331252 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 08-31 096 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for osteoarthritis of the right knee. 2. Entitlement to service connection for osteoarthritis of the left knee. 3. Entitlement to an increased rating for fracture, distal radius and navicular bone with retained metallic bodies, left wrist, currently evaluated as 10 percent disabling. 4. Entitlement to a compensable rating for maxillary sinusitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. J. In, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1960 to April 1980. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2008 and October 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. This case was previously before the Board in January 2012 and was remanded for additional development. For the reasons discussed below, the Board finds that there has been substantial compliance with its January 2012 remand. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. Osteoarthritis of the right and left knees was initially demonstrated many years after service, and has not been shown by the most probative competent clinical, or competent and credible lay, evidence to be causally related to the Veteran's active service. 2. During the rating period on appeal, the Veteran's fracture of the distal radius and navicular bone of the left wrist, with retained metallic bodies, has been manifested by pain, productive, at its most severe, of limitation of dorsiflexion to 50 degrees and plantar flexion to 50 degrees. 3. During the rating period on appeal, the Veteran's maxillary sinusitis has not been manifested by incapacitating episodes or three or more non-incapacitating episodes a year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. CONCLUSIONS OF LAW 1. Osteoarthritis of the right knee was not incurred in, or aggravated by, active service, nor may it be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. Osteoarthritis of the left knee was not incurred in, or aggravated by, active service, nor may it be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 3. The criteria for a rating greater than 10 percent for fracture of the distal radius and navicular bone of the left wrist, with retained metallic bodies, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.71a, Diagnostic Code 5215 (2012). 4. The criteria for a compensable rating for maxillary sinusitis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.97, Diagnostic Code 6513 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claims. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). VA correspondence dated in January 2008, May 2008, and September 2008 advised the Veteran of the necessary elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Specifically, the Veteran was informed of what evidence was required to substantiate the claims for service connection and increased ratings, of his and VA's respective duties for obtaining evidence. They also notified him that a disability rating and effective date would be assigned, in the event of award of the benefit sought, as required by the Court in Dingess/Hartman. The January 2008 VA notice as to the increased rating claims was provided prior to the March 2008 initial adjudication, and the September 2008 VA notice as to the service connection claims was provided prior to the October 2008 initial adjudication, in compliance with Pelegrini. The purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims, including the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). The Board concludes that VA's duty to assist has also been satisfied. The Veteran's service treatment records and post service medical records are in the file. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In compliance with the Board's January 2012 remand, the RO obtained and associated with the claims file the Veteran's VA outpatient treatment records dated September 2008 to January 2012. The RO also provided the Veteran appropriate VA examinations in January 2012. Green v. Derwinski, 1 Vet. App. 121 (1991) (holding that the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran). The Board finds that with regard to the service connection claims, the VA examination and opinion are more than adequate, as the opinion is predicated on an examination of the Veteran and a review of his claims file. The opinion considers the pertinent evidence of record, to include statements of the Veteran regarding in-service symptoms, and a rationale was provided for the opinion proffered. With regard to the increased rating claims, the VA examiner discussed the history of the Veteran's service-connected disabilities, conducted an examination of the Veteran, and elicited information from the Veteran concerning the functional aspects of his service-connected disabilities. As they provide sufficient detail to determine the current severity of the Veteran's service-connected disabilities, the Board finds that the VA examinations obtained were adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Based on the foregoing, the Board finds the RO substantially complied with the remand directives. See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). Law and Analysis Service Connection Claims Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). Generally, in order to establish service connection for the claimed disorders, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In certain circumstances, lay evidence may also be competent to establish a medical diagnosis or medical etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in, or aggravated by, service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The Board is to consider all lay and medical evidence as it pertains to the issues. 38 U.S.C.A. § 7104(a) ("decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 5107(b) (VA "shall consider all information and lay and medical evidence of record in a case"); 38 C.F.R. § 3.303(a) (service connection claims "must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence."). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify."). 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). The Veteran asserts that service connection is warranted for bilateral knee disability. Specifically, on his November 2008 notice of disagreement, he stated that his knee conditions are a direct result of over twenty years of serving on concrete grounds as a parachute rigger for the Air Force. In November 2008 correspondence to his Congressman, he related that a VA physician had told him that walking on a concrete floor as a parachute rigger during active duty affected his knees. In his April 2009 substantive appeal, the Veteran stated that he hurt his knees while in service. Service treatment records are negative for complaints, treatments, or diagnoses of a knee condition. In-service physical examination reports dated May 1965, January 1970 and February 1978 noted that the clinical examination of the lower extremities and musculoskeletal system was normal. On the report of medical history, the Veteran denied arthritis and "trick" or locked knee. After separation from service, VA treatment records dated from February 2004 to the present reflect the Veteran's complaints of bilateral knee pain and diagnoses of osteoarthritis of the knees. Pursuant to the Board's January 2012 remand, the Veteran was afforded a VA examination in January 2012. The VA examiner noted a diagnosis of mild degenerative/osteoarthritis of the bilateral knees. To that effect, the examiner referenced a March 2007 X-ray report showing degenerative joint changes in both knees. The Veteran reported that he had hurting knees for some time, and it had been just gradual hurting. He stated that it had been "quite a long time ago" that his knees had started hurting. He did not provide history of onset in service. The VA examiner indicated that the claims file was reviewed and listed all relevant evidence of record. The opinion stated that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner concluded, after a review of medical records, taking a history, and performing a physical examination, that the osteoarthritis of the bilateral knees was less than likely a result of any event and/or condition that occurred and/or expressed in service and/or within one year of discharge. In support of this opinion, the examiner noted The rationale for this opinion that the right [and left] knee osteoarthritis is not related to any service injury or illness is that the Veteran provided absolutely no historical information about any etiology of inservice injury in the exam today. This examiner repeatedly asked politely when the knees began to bother the Veteran and he volunteered no history that he believed that they began to bother, hurt, were injured[,] nor any scenario, related to service. The only history provided by the Veteran was that his knees had bothered him a "long time". The evidence shows normal knee examinations throughout service. The [r]ecords show a post-service motor vehicle accident that was quite severe and fractured the Veteran's pelvis. Based on the lack of any voluntary testimony by the Veteran and the evidence of record, the right [and left] knee osteoarthritis is less likely in any way related to the Veteran's military service. It is more than likely the right [and the left] knee osteoarthritis is related to the serious post-service motor vehicle accident. After considering the totality of the evidence of record, the Board concludes that service connection is not warranted for osteoarthritis of the right and left knees. As an initial matter, the Veteran has a current diagnosis of osteoarthritis of both knees, as documented by his VA examination report and treatment records. See Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). To that effect, VA treatment records dated in February 2004, December 2007, March 2008, May 2009, and April 2010 show diagnoses of osteoarthritis of the bilateral knees. X-rays of the knees in March 2007 showed degenerative joint disease. The January 2012 VA examination report confirms a diagnosis of mild degenerative/osteoarthritis of the bilateral knees. However, the Veteran's bilateral knee disability was first manifested many years after service and has not been shown to be etiologically related to service. Although the Veteran's service treatment records do not include the report of a separation medical examination or a separation report of medical history, on a physical examination, conducted approximately two years prior to his service separation, clinical examination of the lower extremities and musculoskeletal system was noted to be normal. On the report of medical history, the Veteran denied arthritis and "trick" or locked knee. The first medical evidence of osteoarthritis was in February 2004 although no specific reference was made to the knees. Subsequently, X-ray of the knees in March 2007 showed degenerative changes in the bilateral knees. As such, the Board finds that the Veteran's current bilateral knee disability did not manifest in service or within one year after separation from service. The Veteran does not contend, and the record does not demonstrate, that he had arthritis manifesting to a compensable degree within one year of separation from service. Therefore, service connection for osteoarthritis of the right and left knees is not warranted on a presumptive direct incurrence basis. See 38 C.F.R. §§ 3.307, 3.309. The Veteran has stated that he hurt his knees in service and that his knees had been hurting for "quite a long time ago." To the extent that he is claiming continuity of symptomatology of arthritis, the Board finds that while the Veteran is competent to state that he had knee problems since active service, he is not credible with respect to his reports related to onset or continuity of symptoms since active service. To that effect, the Federal Circuit recently held that continuity of symptomatology under 38 C.F.R. § 3.303(b) only applies to those conditions recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran's disability is diagnosed as arthritis and recognized as a chronic condition. 38 C.F.R. § 3.309(a). Nevertheless, the Board notes the 24 year gap between separation from service and the first record of a diagnosis of osteoarthritis in 2004. Indeed, the Veteran sought VA medical treatment for other ailments from August 1980, four months after separation from service and did not mention any knee problems. The Board does not find it reasonable that the Veteran would be experiencing knee problems since service and not mention such problems during medical treatments. He also filed a VA disability claim in September 1980 seeking service connection for other disabilities, but never mentioned the knee disabilities until his present claim filed in April 2008. Furthermore, during the January 2012 VA examination, although the Veteran stated that it had been "quite a long time ago" that his knees had started hurting, he did not provide history of onset in service. Thus, the Veteran's assertions of continuity of symptomatology are inconsistent with the other evidence in the claims file. See Indiana Metal Prods. v. NLRB, 442 F.2d 46, 51-52 (7th Cir. 1971) (citations omitted) (noting that "definitions of credibility do not necessarily confine that concept to the narrow peg of truthfulness. It has been termed as 'the quality or power of inspiring belief. . . .' Credibility . . . apprehends the over-all evaluation of testimony in the light of its rationality or internal consistency and the manner in which it hangs together with other evidence."). In light of the above, the Board finds that service connection based on continuity of symptomatology is not warranted. Furthermore, the opinion of the VA examiner in January 2012 concluded that the Veteran's current osteoarthritis of the knees was not related to military service. In support of this opinion, the examiner stated based on the lack of any voluntary testimony by the Veteran and the evidence of record, the right and left knee osteoarthritis is less likely in any way related to the Veteran's military service and that it is more than likely the right and the left knee osteoarthritis are related to the serious post-service motor vehicle accident. The Board finds this VA opinion to be competent, highly probative medical evidence as to whether the Veteran's current bilateral knee disability was caused by his service. It was based on a thorough review of the Veteran's records, including the personal interview with the Veteran, and was supported by an adequate rationale consistent with the other medical evidence of record. The Board notes that the Veteran has asserted that a VA physician told him that walking on a concrete floor as a parachute rigger during active duty affected his knees. The Board points out, however, that as a lay person, his account of what a doctor purportedly said, filtered through the sensibilities of a layperson, does not constitute competent medical evidence. See Robinette v. Brown, 8 Vet. App. 69 (1995). With respect to the Veteran's contentions that his bilateral knee disability is related to service, specifically, walking on concrete ground as a parachute rigger during his over twenty years of service, the Veteran has not demonstrated that he has expertise in medical matters. While there is no bright line exclusionary rule that a lay person cannot provide opinion evidence as to a nexus between an in-service event and a current condition, not all medical questions lend themselves to lay opinion evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) referred to Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) for guidance. In footnote 4 of Jandreau, the Federal Circuit indicated that the complexity of the claimed disability is to be considered in determining whether lay evidence is competent. As to a nexus opinion relating his current bilateral knee disability to his service, the Board finds that the etiology of the Veteran's degenerative joint/osteoarthritis of the knees is too complex an issue, one typically determined by persons with medical training, to lend itself to lay opinion evidence. The Veteran has not been shown to have had the requisite medical training. Thus, the Veteran is not competent to render a medical diagnosis or opinion as to etiology of bilateral knee osteoarthritis in this case. Based on the evidence of record, the Board finds that a preponderance of the evidence is against the claims for service connection for osteoarthritis of the right and left knees. As the preponderance of the evidence is against the claims, the benefit of the doubt rule is not applicable, and the claims must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Increased Rating Claims Disability ratings are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. Evaluation of a service-connected disability requires a review of a veteran's medical history with regard to that disorder. However, the primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. While the entire recorded history of a disability is important for more accurate evaluations, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Court has held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet App 505 (2007). A. Left Wrist Service connection for fracture of distal radius and navicular bone of the left wrist, with retained metallic bodies, was granted in a September 1980 rating decision and a noncompensable initial rating was assigned effective May 1, 1980. Subsequently, by a March 2002 rating decision, the RO increased the rating for the Veteran's left wrist disability to 10 percent effective April 17, 2001. The Veteran filed his present claim for an increased rating for his service-connected left wrist disability in December 2007. By the March 2008 rating decision on appeal, the RO continued the 10 percent rating for the Veteran's left wrist disability. The Veteran's left wrist disability is evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5215. Under Diagnostic Code 5215, limitation of motion of the wrist, either major or minor, the maximum 10 percent rating is assigned when there is limitation of motion of the wrist with dorsiflexion (extension) less than 15 degrees or with palmar flexion limited in line with the forearm. There is no higher disability evaluation available under Diagnostic code 5215. For a rating in excess of 10 percent, ankylosis of the wrist must be present. 38 C.F.R. § 4.71a, Diagnostic Code 5214 Normal wrist range of motion is from 80 degrees flexion to 70 degrees extension, with normal ulnar deviation to 45 degrees and normal radial deviation to 20 degrees. 38 C.F.R. § 4.71, Plate I. At the February 2008 VA fee-basis examination, the Veteran endorsed weakness when moving the wrist and lack of endurance. He denied stiffness, swelling, hear, redness, giving way, locking, fatigability and dislocation. He reported crushing and aching pain localized in the left wrist occurring one time per week and each time lasting for two days. The pain could be elicited by physical activity and relieved by medications. At the time of pain, he could function with medication. It was noted that the right hand was the Veteran's dominant hand. The range of motion was dorsiflexion to 70 degrees, palmar flexion to 80 degrees, radial deviation to 20 degrees, and ulnar deviation to 45 degrees. The examiner noted that the joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. X-rays were within normal limits; small sliver of metal was noted. The diagnosis was status post fracture of the distal radius and navicular bone of the left wrist with retained metallic bodies. The examiner noted that the effect of the condition on the Veteran's activity was to avoid strenuous activities. VA treatment reports covering the period from October 2009 to May 2011 reflect the Veteran's complaints of left wrist pain. At a January 2012 VA examination, the Veteran reported left wrist pain especially when a cold front is coming. The examiner found left wrist range of motion was dorsi and palmar flexion to 50 degrees each. Pain occurred with both dorsiflexion and palmar flexion at 50 degrees. There was no additional functional loss with repetition. Functional impairment was due to less movement than normal, excess fatigability, and pain on movement. Muscle strength was 5/5 with left wrist flexion and extension. There was no ankylosis of either wrist. Imaging studies showed no arthritis. The examiner stated the Veteran's wrist condition did not impact his ability to work. Based on the above, the Board determines that a rating in excess of 10 percent for the left wrist disability is not warranted. The 10 percent rating is the maximum available for limitation of motion of the wrist without evidence of ankylosis, which the evidence establishes is not present. 38 C.F.R. § 4.71a, Diagnostic Codes 5214, 5215. The Board has considered the effect of pain, weakness, and lack of endurance. DeLuca v. Brown, 8 Vet. App. 202, 205 (1995); 38 C.F.R. §§ 4.40, 4.45. A 10 percent rating is warranted for dorsiflexion limited to 15 degrees or palmar flexion limited to even with the forearm, or 0 degrees. See 38 C.F.R. § 4.71a, Plate I. The Veteran's left wrist range of motion exceeds this degree of limitation even with consideration of pain, being limited to no less than 50 degrees dorsiflexion and palmar flexion with consideration of pain. Therefore, the 10 percent rating assigned contemplates loss of function due to pain, weakness and lack of endurance. The Board has considered the Veteran's contentions that an increased rating is warranted for his left wrist disability, but the record fails to demonstrate ankylosis of the left wrist to warrant a higher rating under Diagnostic Code 5214. As such, the Board concludes that a rating in excess of 10 percent for fracture of the distal radius and navicular bone of the left wrist, with retained metallic bodies, is not warranted. B. Sinusitis Service connection for maxillary sinusitis was granted in a September 1980 rating decision and a noncompensable initial rating was assigned effective May 1, 1980. The Veteran filed his present claim for a compensable rating for his service-connected sinus disability in December 2007. By the March 2008 rating decision on appeal, the RO continued the noncompensable percent rating for the Veteran's sinus disability. The Veteran's sinusitis is rated under 38 C.F.R. § 4.97, Diagnostic Code 6513 for chronic maxillary sinusitis. That diagnostic code is rated under the General Rating Formula for Sinusitis. Under that regulation, sinusitis following radical surgery with chronic osteomyelitis, or near constant sinusitis characterized by headaches, pain, and tenderness of the affected sinus, and purulent discharge or crusting after repeated surgeries warrants a 50 percent disability rating. Sinusitis with three or more incapacitating episodes per year requiring prolonged (lasting four to six weeks) antibiotic treatment, or more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting warrants a 30 percent disability rating. Sinusitis with one or two incapacitating episodes per year requiring prolonged (lasting four to six weeks) antibiotic treatment, or three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting warrants a 10 percent disability rating. Sinusitis detected by x-ray only warrants a 0 percent disability rating. 38 C.F.R. § 4.97. At the February 2008 VA fee-basis examination, the Veteran described constant sinus problems. The Veteran stated that during the sinusitis episodes, he was incapacitated as often as 1 time(s) a month, and each incident lasted for 1 week(s). He did not have headaches with the sinus attacks and no antibiotic treatment lasting 4 to 6 weeks was needed for his sinusitis. He reported interference with breathing through the nose. He also reported purulent discharge from the nose. He denied hoarseness of the voice, pain or crusting. He reported no side effects from treatment. Physical examination of the nose revealed no nasal obstruction, deviated septum, partial loss of the nose or partial loss of the ala, nasal polyps, scar or disfigurement. There was no rhinitis noted on examination of the nose; examination showed sinusitis present at maxillary with tenderness and there was purulent discharge from the nose. X-ray of the sinus was within normal limits. The diagnosis was maxillary sinusitis. At the January 2012 VA examination, the Veteran was found to have chronic sinusitis detected only by imaging studies, with episodes of sinusitis, and headaches. The Veteran did not have non-incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge or crusting in the past 12 months. He also did not have incapacitating episodes of sinusitis requiring prolonged (4 to 6 weeks) antibiotics treatment in the past 12 months. The examiner noted that the Veteran did not have rhinitis, larynx and pharynx conditions, deviated septum, or tumors or neoplasms. X-ray of the paranasal sinuses was unremarkable. The examiner further noted that the Veteran's sinus condition did not impact his ability to work. VA treatment reports dated April 2008 and August 2008 reflect the Veteran's complaints of sinus problems. In August 2008, the Veteran reported congestion and headaches. The Board finds that a compensable rating for sinusitis is not warranted. Specifically, the evidence fails to show that the Veteran has had one or two incapacitating episodes of sinusitis per year requiring prolonged (lasting 4 to 6 weeks) antibiotic treatment; or three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. It is noted that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. Although at the February 2008 VA fee-basis examination, the Veteran reported that he was incapacitated as often as 1 time(s) a month, and that each incident lasted for 1 week(s), there is no evidence of bed rest and treatment for chronic sinusitis by a physician during the rating period. Furthermore, the Veteran denied headaches with the sinus attacks, pain and purulent discharge from the nose, and that antibiotic treatment lasting 4 to 6 weeks was needed for his sinusitis. The January 2012 examiners clearly indicated that the Veteran did not have non-incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge or crusting; or incapacitating episodes of sinusitis requiring prolonged (4 to 6 weeks) antibiotics treatment in the past 12 months. Thus, the Board concludes that a compensable rating for maxillary sinusitis is not warranted at any time during the rating period. C. Other Considerations Under Thun v. Peake, 22 Vet App 111 (2008), there is a three- step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the schedular ratings in this case are adequate. The diagnostic criteria contemplate and adequately describe the symptomatology of the Veteran's service-connected left wrist and sinus disabilities. See Thun, 22 Vet. App. at 115. The Veteran's fracture of distal radius and navicular bone of the left wrist, with retained metallic bodies, is evaluated by the rating criteria which specifically contemplate the degree of limitation of motion of the wrist caused by this disability, taking into account any additional functional loss caused by the Veteran's reported pain. See 38 C.F.R. § 4.71a, Diagnostic Codes 5214, 5215. The Veteran's maxillary sinusitis is evaluated by the rating criteria which specifically contemplate the frequency and severity of the sinusitis episodes, taking into account characteristic symptoms such as pain, headaches and purulent discharge and crusting, as well as the type of treatments required for this disability. See 38 C.F.R. § 4.97, Diagnostic Code 6513. When comparing the Veteran's symptoms with the schedular criteria, the Board finds that the Veteran does not have symptomatology associated with his left wrist and sinus disabilities that have been unaccounted for by the currently assigned schedular ratings. See id. Accordingly, a comparison of the Veteran's symptoms resulting from his service-connected disabilities with the pertinent schedular criteria does not show that his service-connected disabilities present "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b). Consequently, the Board finds that the available schedular ratings are adequate to rate the Veteran's left wrist and sinus disabilities. Based on this threshold finding, there is no need to consider whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization. See Thun, 22 Vet. App. at 118-19 (holding that the Board's finding that the rating criteria were adequate to evaluate the claimant's disability was a sufficient basis for denying extraschedular consideration without regard to whether there was marked interference with employment). As such, referral for extraschedular consideration is not warranted. See VAOPGCPREC 6-96. The Board finds that the evidence is against the assignment of ratings greater than those currently assigned for the Veteran's service-connected disabilities, at any time during the rating period on appeal. As such, staged ratings are not for application. See Hart v. Mansfield, 21 Vet. App. 505 (2008). Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not argued, and the record does not otherwise reflect, that the disabilities at issue render him unemployable. Specifically, the January 2012 VA examination report noted as to the functional impact, that the Veteran's left wrist or sinus disability did not impact his ability to work. Accordingly, the Board concludes that a claim for TDIU has not been raised. In the present case, the preponderance of the evidence is against the Veteran's claims for increased ratings for his service-connected disabilities. Therefore, the claims are denied. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert, 1 Vet. App. at 53. ORDER Entitlement to service connection for osteoarthritis of the right knee is denied Entitlement to service connection for osteoarthritis of the left knee is denied. Entitlement to an increased rating for fracture, distal radius and navicular bone with retained metallic bodies, left wrist, currently evaluated as 10 percent disabling, is denied. Entitlement to a compensable rating for maxillary sinusitis is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs