Citation Nr: 1334433 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 05-31 990 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased disability rating for service-connected gastritis, currently evaluated as 30 percent disabling. 2. Entitlement to an increased disability rating for service-connected chondromalacia patellae of the left knee, currently evaluated as 10 percent disabling. 3. Entitlement to an increased disability rating for service-connected chondromalacia patellae of the right knee, currently evaluated as 10 percent disabling. 4. Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU) due to service-connected disabilities prior to March 27, 2009. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from October 1990 to June 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated September 2004, November 2004, and April 2006 of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In the September 2004 decision, the RO denied entitlement to disability ratings in excess of 10 percent for chondromalacia patellae of the knees. In the November 2004 decision, the RO denied entitlement to a rating in excess of 30 percent for gastritis. In the April 2006 decision, the RO denied entitlement to TDIU. In October 2008, the Board denied the claims for disability ratings in excess of 10 percent for chondromalacia patellae of the knees and for a rating in excess of 20 percent for gastritis, and denied the claim for a TDIU. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In March 2009, the Court set aside the Board's October 2008 decision, in part, and remanded the case for readjudication in compliance with directives specified in a February 2009 Joint Motion for Partial Remand filed by counsel for the Veteran and for VA. In April 2009 and September 2011, the Board remanded these matters for further development. In a December 2012 decision, a Decision Review Officer (DRO) granted a 100 percent rating for the Veteran's service-connected major depressive disorder (MDD), effective October 1, 2012. In a March 2013 decision, the Board granted entitlement to a TDIU from March 27, 2009. However, the issue of entitlement to a TDIU prior to this date, remained on appeal and was again remanded, along with the remaining claims on appeal, for further evidentiary development. As will be described below, review of the record now reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The VA Appeals Management Center (AMC) continued the previous denials in an August 2013 supplemental statement of the case (SSOC). The Veteran's VA claims file has been returned to the Board for further appellate proceedings. FINDINGS OF FACT 1. The Veteran's service-connected gastritis is manifested by vomiting with blood and melena and abdominal pain, with no evidence of severe hemorrhages or large ulcerated areas. 2. The Veteran's service-connected chondromalacia patellae of the right knee is manifested by pain and limitation of motion to no more than 45 degrees of flexion and zero degrees of extension, with no findings of instability. 3. The Veteran's service-connected chondromalacia patellae of the right knee is manifested by pain and limitation of motion to no more than 45 degrees of flexion and zero degrees of extension, with no findings of instability. 4. Prior to March 27, 2009, the Veteran was service-connected for gastritis at 30 percent disabling; left shoulder degenerative arthritis at 20 percent disabling; residuals of a cold injury to the right and left lower extremities, each evaluated at 20 percent disabling; chondromalacia patellae of the left and right knees, each evaluated at 10 percent disabling; and folliculitis of the neck and scalp, each evaluated at 10 percent disabling. These disabilities combined to an 80 percent evaluation. 5. Prior to March 27, 2009, the evidence of record does not demonstrate that the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation, so as to render impractical the application of the regular schedular standards. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 30 percent, for the Veteran's service-connected gastritis, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 &Supp. 2012); 38 C.F.R. § 4.114, Diagnostic Code (DC) 7307 (2013). 2. The criteria for an evaluation in excess of 10 percent, for the Veteran's service-connected chondromalacia patellae of the left knee, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5010, 5257, 5260, 5261 (2013). 3. The criteria for an evaluation in excess of 10 percent, for the Veteran's service-connected chondromalacia patellae of the right knee, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5010, 5257, 5260, 5261 (2013). 4. The criteria for a TDIU based upon service-connected disabilities, prior to March 27, 2009, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.129(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that claimant is expected to provide. Further, in Dingess v. Nicholson, 19 Vet. Ap. 473 (2006), the Court held that, upon receipt of an application for a service connection claim, VA is required to review the evidence presented with the claim and to provide the claimant with notice of what evidence not previously provided will help substantiate his/her claim. See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Specifically, VA must notify the claimant of what is required to establish service connection and that a disability rating and effective date for the award of benefits will be assigned if service connection is awarded. With regard to the pending claims, the law requires VA to notify the claimant that, to substantiate a claim, the claimant was must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing his or her entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular veteran's circumstances; that is, VA need not notify a veteran of the specific diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). As to the current appeal, letters dated in March 2005 and January 2006 complied with VA's duty to notify the Veteran with regard to the increased rating and TDIU claims. In particular, the letters informed the Veteran of the need for evidence of a worsening of his service-connected disability. The letters also informed the Veteran of the evidence necessary to sustain a claim of entitlement to a TDIU. Further, the Veteran was notified of the types of evidence that could substantiate his claims, such as medical records or lay statements regarding personal observations. He was asked to provide information as to where he had been treated and was informed that VA was responsible for obtaining any federal records, VA records, and any medical examinations, if necessary. In addition, letters dated March 2006 and May 2008 informed the Veteran that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. He was also specifically provided with notice of how disability ratings and effective dates are determined in the March 2006 and May 2008 letters. With respect to VA's duty to assist, the Veteran's service treatment records (STRs), Social Security Administration (SSA) records, and VA and private treatment records have been obtained and associated with the claims file. The Veteran was afforded VA examinations and/or opinions in July 2004, October 2004, February 2008, July 2009, July 2010, April 2011, November 2011, January 2013, and July 2013. Although certain deficiencies will be discussed below, the medical opinions reflect that, as a whole, the VA examiners thoroughly reviewed the Veteran's past medical history, documented his medical conditions, and rendered opinions which appear to be consistent with the remainder of the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). The Board therefore concludes that the VA examination reports are adequate as a whole for evaluation purposes. See 38 C.F.R. § 4.2 (2013); see also 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). Thus, given the standard of the regulation, the Board finds that VA does not have a duty to assist that was unmet. II. Increased rating claims Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). As will be detailed below, the Board finds that staged ratings are not warranted as to the current increased rating claims. a. Gastritis - Schedular Consideration In this matter, service connection for gastritis was established by a March 2001 rating decision, at which time a 30 percent rating was assigned, effective from July 1, 1994. The Veteran is now seeking an increased rating. The Veteran's service-connected gastritis is currently evaluated as 30 percent disabling under the provisions of 38 C.F.R. § 4.114, Diagnostic Code 7307, which pertains to chronic hypertrophic gastritis. Under this diagnostic code, chronic hypertrophic gastritis, with small nodular lesions and symptoms, warrants a 10 percent evaluation. A 30 percent evaluation is warranted in cases of multiple small eroded or ulcerated areas and symptoms. A 60 percent evaluation is warranted in cases of severe hemorrhages or large ulcerated or eroded areas. Here, VA treatment records dated February 2004 indicated that the Veteran's gastroesophageal symptoms were stable and he was continued on Zantac. A VA treatment record dated October 2004 documented the Veteran's report of a poor appetite for the last two months. He indicated that he feels he is losing weight. He denied dysphagia. He endorsed heartburn and diarrhea, although not every day, and further described ongoing problems with vomiting. See the VA treatment record dated October 2004. He was afforded a VA examination in October 2004 at which time he reported that he vomits approximately two to three times per month and he does not know if it is related to food. He stated that he sees blood in his vomit and endorsed melena. He indicated that his gastritis is treated with antacids. The VA examiner noted no circulatory disturbances after meals and his bowels movements are usually normal. The Veteran reported abdominal pain without distension. He indicated that he experiences most of his abdominal pain in the morning and it occurs approximately two to three times per month. The Veteran reported involuntary weight loss of 30 pounds because of poor appetite. The examiner noted no signs of anemia. Upon physical examination, the Veteran endorsed tenderness in the right upper quadrant and epigastrium. The examiner noted there was no guarding or rebound. Bowel sounds were normal and there was no ventral hernia. The Veteran reported that he lost about forty hours of work in the past month due to his gastritis. The examiner further noted, "[h]is disability has caused him to lose some hours of work and is probably a factor in his daily living." A VA treatment record dated August 2005 described the absence of reported gastrointestinal symptoms. Specifically, the Veteran reported no diarrhea, constipation, abdominal pain, changes in color of stool, or bright red blood per rectum. A December 2005 VA treatment record documented the Veteran's report of experiencing nausea and vomiting all weekend; however, the treatment provider indicated that he was probably having a reaction to a prescription drug. In January 2006, the Veteran reported seeing traces of blood when he brushes his tongue in the morning. The treating physician noted that the Veteran denied nausea, vomiting, and hematemesis. The Veteran was diagnosed with questionable irritation to the tongue. His weight was documented at 189 pounds. See the VA treatment record dated January 2006. In March 2006, the Veteran reported a history of ulcers, but did not endorse experiencing a poor appetite, constipation, or diarrhea. See the VA treatment record dated March 2006. The Veteran was afforded another VA examination in July 2010, at which time he described pyrosis and epigastric pain. The examiner noted that there was "no substernal or arm pain at this time." The Veteran did not complain of dysphagia. The examiner noted the Veteran's report of hematemesis and melena in 1994. He did not endorse current symptoms of reflux or regurgitation. The Veteran again reported experiencing intermittent nausea and vomiting. He stated that he takes omeprazole 20 mg. three times per day to manage his gastritis symptoms. The examiner noted, "[a]s far as his daily activities, there is no effect at the present time." The examiner further reported that the Veteran had no history of neoplasm. Upon physical examination, the Veteran's abdomen was soft and flat. The Veteran endorsed epigastric pain at 4-5/10. The examiner reported that there was no guarding or rebound and bowel sounds were quiet. He additionally indicated there was no ventral hernia or abdominal bruits. The Veteran's weight was reported as stable at 225 pounds. The report also noted that the Veteran had endoscopies in 1994 and 1999. The Veteran was afforded a third examination as to his service-connected gastritis in April 2011. He reported symptoms of heartburn, indigestion, nausea, epigastric pain, and regurgitation. He denied experiencing dysphagia, hematemesis or melena. The examiner noted the Veteran's report of frequent daily moderate substernal pain as well as daily pyrosis/heartburn and regurgitation. The examiner indicated that the Veteran was not anemic. The Veteran's weight was stable at 225 pounds. The examiner noted that the Veteran's gastritis had moderate effects on his activities of daily living; specifically, his feeding. The examiner further stated, "[t]he Veteran's gastritis would not present functional impairments that would impact physical or sedentary employment." Critically, in the September 2011 decision, the Board determined that the April 2011 and July 2011 VA examinations were inadequate as the examiners provided no indication of whether the Veteran was examined for severe hemorrhages or large ulcerated or eroded areas. The Board therefore remanded the gastritis claim for an addendum VA medical opinion. Accordingly, in a November 2011 addendum VA medical opinion, the examiner indicated that "[n]o testing was performed/indicated to determine the current severity of the Veteran's gastritis." The examiner further opined that the Veteran's gastritis "would not present functional impairment that would impact physical or sedentary employment." The Veteran was afforded another addendum VA medical opinion in January 2013 with respect to the service-connected gastritis. The examining physician reviewed the claims file and noted that the "Veteran reports all his medical care is received within the VA system, he has no private physicians. He has not had invasive gastrointestinal procedures since approximately 1994 during his active military service." The examiner further noted, "[h]e continues to require daily medication for symptoms of his service-connected gastritis. There is no objective evidence to support presence of severe hemorrhages or large ulcerated eroded areas." The examiner continued, "[n]o symptoms of anemia or low blood count that would be indicative of someone experiencing hemorrhages. The symptoms described are not consistent with evidence of ulceration or eroded areas." Pursuant to the March 2013 Board Remand, the Veteran was afforded VA medical opinions dated April 2013 and July 2013 which addressed the Veteran's degree of occupational impairment caused, in part, by the service-connected gastritis. The April 2013 VA examiner reviewed the claims file and concluded that the Veteran's gastritis "will not prevent this Veteran from securing and following substantially gainful employment for which his education and occupational experience would have otherwise qualified him prior to March 27, 2009." The July 2013 VA examiner determined that the Veteran's gastritis would not have in combination with other service-connected disabilities or individually, "prevented this Veteran from gaining or keeping gainful physical or sedentary employment for which his educational and occupational experience would otherwise qualified him from the period of time between March 2004 and September 26, 2009." The examiner opined that the Veteran's service-connected conditions including gastritis "did not present during that period of time a functional impairment that would have prevented this Veteran from engaging in physical or sedentary employment." On review of the evidence as a whole, the Board notes that while VA examiners have determined a current diagnosis of gastritis, there are no findings of severe hemorrhages or large ulcerated or eroded areas. 38 C.F.R. § 4.114, DC 7307. Accordingly, the Board finds that an evaluation greater than 30 percent is not warranted. In reaching this decision, the Board has also considered evaluating the Veteran under Diagnostic Codes 7305 and 7306. However, as the Veteran has never been found to have a marginal or duodenal ulcer, the Board does not find that a rating would be appropriate under either of these codes. In sum, the preponderance of the objective medical evidence supports the current rating for the Veteran's service connected gastritis. Moreover, the evidence is not so evenly balanced as to allow for the application of reasonable doubt. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.102 (2013). b. Left and Right Knees - Schedular Consideration When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2013); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Historically, the Veteran was service-connected for chondromalacia patella of the left and right knees, evaluated as 10 percent for each knee, effective July 1, 1994. He now asserts that his left and right knee disabilities are worse than is contemplated by the currently assigned disability ratings. See the Veteran's claim dated March 2004. The Veteran's left and right knee disabilities are each rated as 10 percent disabling under Diagnostic Code 5260, which provides for the ratings governing limitation of flexion of the knee. However, there are several other Diagnostic Codes under which the Veteran could be rated. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts, supra. One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio, supra. Under DC 5003 [degenerative arthritis], arthritis of a major joint may be rated under the criteria for limitation of motion of the affected joint. See 38 C.F.R. § 4.71a, DC 5003. However, when the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under DC 5003. Id. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. In the absence of limitation of motion, a 10 percent evaluation is assigned with x-ray evidence of involvement of two or more major joints; a 20 percent rating is assigned with x-ray evidence of involvement of two or more major joints with occasional incapacitating exacerbations. Id. Under DC 5260, limitation of flexion of the leg provides a non-compensable rating if flexion is limited to 60 degrees, a 10 percent rating where flexion is limited to 45 degrees, a 20 percent rating where flexion is limited to 30 degrees, and a maximum 30 percent rating if flexion is limited to 15 degrees. Under DC 5261, limitation of extension of the leg provides a non-compensable rating if extension is limited to five degrees, a 10 percent rating if limited to 10 degrees, a 20 percent rating if limited to 15 degrees, a 30 percent rating if limited to 20 degrees, a 40 percent rating if limited to 30 degrees, and a 50 percent rating if limited to 45 degrees. Under DCs 5260 and 5261, a veteran may receive separate ratings for limitations in both flexion and extension. See VAOPGCPREC 9-2004. Normal range of motion for the knee is defined as follows: flexion to 140 degrees and extension to 0 degrees. See 38 C.F.R. § 4.71, Plate II (2010). In VAOPGCPREC 23-97, the General Counsel held that a claimant who has arthritis and instability of the knee may be rated separately under DC 5003 and DC 5257, and that evaluation of a knee disability under both of these codes would not amount to pyramiding under 38 C.F.R. § 4.14. VAOPGCPREC 23-97 (July 1, 1997), 62 Fed. Reg. 62604 (1997); see also Esteban v. Brown, 6 Vet. App. 259 (1994). However, a separate finding must be based on additional disability. In VAOPGCPREC 9-98 (1998), the VA General Counsel further explained that, when a veteran has a knee disability evaluated under DC 5257, to warrant a separate rating for arthritis based on x-ray findings, the limitation of motion need not be compensable under DC 5260 or DC 5261; rather, such limited motion must at least meet the criteria for a zero-percent rating. DC 5257 provides for assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability, a 20 percent rating when there is moderate recurrent subluxation or lateral instability, or a 30 percent evaluation for severe knee impairment with recurrent subluxation or lateral instability. Id. Thus, to warrant a higher evaluation, the Veteran would have to be found to have limitation of flexion to 30 degrees, or limitation of extension to 10 degrees, or a combination of limitation of flexion and extension sufficient to warrant an evaluation in excess of 10 percent, or another impairment of the knee, such as recurrent subluxation or lateral instability, such that he would be entitled to a separate rating. Here, the Veteran was initially afforded a VA examination in July 2004 as to his left and right knee disabilities. He reported no acute episodes of pain, but did endorse pain on activity in both knees particularly going up and down stairs. Upon physical examination, the Veteran was unable to perform squats, heel, or toe raising. His range of motion was 115 degrees of flexion and 0 degrees of extension, bilaterally with pain. There was also pain on patella grinding bilaterally, which grinding was severe. There was no fluid or instability of the joints. Repeated motion caused an increase in pain and a decrease in range of motion of approximately 10 degrees. Quadriceps atrophy and weakness were noted secondary to disuse. The Veteran was diagnosed with chondromalacia patella, bilaterally. The examiner indicated that, in his opinion, the Veteran's knee condition had markedly increased. The examiner noted that the Veteran worked as a custodian at the post office, and was able to perform the activities of daily living, except when it came to attempting to squat or move quickly or go up and down stairs at which time he had pain. The Veteran was also noted to use braces on both knees. VA treatment records dated December 2004 documented the Veteran's complaint of bilateral knee pain. The Veteran was involved in a motor vehicle accident in November 2004 at which time he injured his right hip and knee. See the private treatment records dated November 2004. Following hip surgery, the Veteran underwent physical therapy, at which time it was noted that the Veteran complained of continuing right knee pain. See the private treatment records dated April 2005. In a July 2005 record, Dr. M.A.L. noted that the Veteran was ambulating with a cane and further indicated that he experienced soreness in the right knee "which is to be expected by virtue of his ambulation status change." VA treatment records dated January 2006 noted the Veteran's complaint of crepitus in the bilateral knees, although he reported no episodes of buckling or instability. The Veteran was afforded another VA examination in July 2009 at which time he reported weakness, stiffness, and swelling in the bilateral knees with occasional giving way. He denied any increased heat or locking of the knees. The Veteran described bilateral knee pain of 8-10/10. He stated that he has been taking Tramadol three to four times per day for pain. The Veteran reported flare-ups of pain precipitated by climbing stairs or bending his knees, occurring on a daily basis and lasting two hours. These flare-ups are relieved by medication, the use of elastic braces, and the application of heat and cold compresses. Upon physical examination, the Veteran's range of motion with restrictions was "0-70/140 on the left and 0-50/140 on the right with intense pain...There was no instability of the cruciate or collateral ligaments of the knees with a negative drawer test and negative Lachman test." The examiner also determined that "[r]epetitive motion of the knees have no effect on the [Veteran's] range of motion, pain, fatigability, coordination, weakness, or endurance." The examiner also stated any "opinions whether there will be any further decrease of the range of motion during the flare-ups would be based on speculation." The examiner further noted that the Veteran claims he is unable to work due to his knee disabilities. The Veteran reported that his activities of daily living, specifically, his ability to put on shoes and socks, are impaired by his knee disabilities. The Veteran was afforded a third VA examination in April 2011 at which time the examiner noted he was "[u]nable to evaluate [range of motion] for [Veteran] - he could not move his knees when ask[ed] to perform [range of motion] to both knees." The examiner continued, "[i]n sitting position both knees are at about 45 degrees of flexion. He is standing without difficulties, therefore no limitation on [range of motion] with extension. Cannot accurate assess [range of motion] with flexion." The examiner noted that the bilateral knee disabilities resulted in significant occupational effects; specifically, "[d]ecreased mobility, decreased strength, [and] lower extremity pain." The examiner also noted moderate effects of the bilateral knees on activities of daily living; however, severe effects were noted as to exercise and sports. Critically, whether the Veteran had functional impairment due to his knee disabilities pursuant to DeLuca was not discussed. Pursuant to the September 2011 Board Remand, the Veteran was afforded another VA examination in January 2013 with respect to the service-connected left and right knee disabilities. The examiner confirmed a diagnosis of chondromalacia of the bilateral knees and documented the Veteran's complaints of intermittent pain at rest. The Veteran also described limitation of motion of the bilateral knees, despite medication. He further endorsed symptoms of giving out, instability, and stiffness of the knees. The Veteran denied any deformity, weakness, or incoordination of the knees. He described flare-ups of bilateral knee symptomatology consisting of intermittent pain with prolonged standing. The Veteran indicated that he is able to stand for approximately 15 to 30 minutes without pain and is able to walk a quarter of a mile. He uses a walker and bilateral knee braces. The examiner noted no evidence of swelling or local skin discoloration in the knees. Upon physical examination, flexion was limited to 110 degrees bilaterally, with pain; extension was zero degrees with no objective evidence of pain. Upon repetition, the examiner noted no additional limitation of motion in either knee. Functional loss/functional impairment were exhibited with less movement than normal and pain on movement, bilaterally. The Veteran endorsed tenderness in the knee. The examiner noted that the Veteran's ability to work was impacted in that prolonged standing produces pain. Pursuant to the March 2013 Board Remand, the Veteran was afforded VA medical opinions dated April 2013 and July 2013 which addressed the Veteran's degree of occupational impairment caused, in part, by the service-connected left and right knee disabilities. The April 2013 VA examiner reviewed the claims file and concluded that the Veteran's bilateral chondromalacia patellae "will not prevent this Veteran from securing and following substantially gainful employment for which his education and occupational experience would have otherwise qualified him prior to March 27, 2009." The July 2013 VA examiner determined that the Veteran's left and right knee disabilities would not have in combination with other service-connected disabilities or individually, "prevented this Veteran from gaining or keeping gainful physical or sedentary employment for which his educational and occupational experience would otherwise qualified him from the period of time between March 2004 and September 26, 2009." The examiner opined that the Veteran's service-connected conditions including bilateral chondromalacia patellae "did not present during that period of time a functional impairment that would have prevented this Veteran from engaging in physical or sedentary employment." As described above, in order to warrant an increased, 20 percent evaluation, the evidence must show the presence of x-ray evidence of involvement of two or more major joints or 2 or more minor joint groups, with occasional incapacitating episodes. See 38 C.F.R. § 4.71a, DC 5003 or at least moderate impairment of the Veterans' knees to include recurrent subluxation and/or lateral instability. 38 C.F.R. § 4.71a, DC 5257. An increased evaluation would additionally be warranted upon a showing of limitation of flexion to 30 degrees or of extension to 15 degrees. 38 C.F.R. § 4.71a, DCs 5260, 5261. Accordingly, with respect to the range of motion studies performed throughout the appeal period, the Veteran exhibited flexion of ranging from 45 to 110 degrees, bilaterally. This far exceeds limitation to 30 degrees required for the assignment of a 20 percent rating under DC 5260. There is no evidence which indicates a greater limitation of flexion exists. Accordingly, increased disability ratings cannot be assigned based on DC 5260. Under DC 5261, a 10 percent evaluation is warranted for limitation of knee extension to 10 degrees. See 38 C.F.R. § 4.71a, DC 5260. The Board recognizes that the July 2004 VA examiner had indicated a decrease in range of motion of 10 degrees upon repeated motion, without specifying whether this applied to flexion and/or extension. However, the VA examination and treatment records consistently demonstrate full extension of the bilateral knees, with no significant impairment noted. The medical evidence thus demonstrates that the Veteran's bilateral knee extension measurements far exceed those required for the assignment of a compensable disability rating pursuant DC 5261. Accordingly, disability picture more nearly approximates the criteria required for a noncompensable rating under DC 5261. See 38 C.F.R. § 4.7. Moreover, Board notes that the Veteran complained of giving way and instability due to his bilateral knee disability. However, there is no objective evidence of either recurrent subluxation or lateral instability to warrant an increased or separate rating under DC 5257. Instability and subluxation were not shown in any of the VA examinations conducted during the appeal period. In addition, there are no objective findings of instability or subluxation documented in the VA and private treatment records. The Board further notes that there is no evidence, nor does the Veteran so contend, of incapacitating episodes due to his bilateral knee disability. Additionally, the medical evidence does not reflect that the Veteran's subjective reports of knee pain caused functional loss sufficient to warrant a higher disability rating. See 38 C.F.R. § 4.40; DeLuca, supra. The Veteran's subjective complaints of pain are adequately addressed by the 10 percent rating currently assigned. The Board has considered the impaired range of motion measurements described by the April 2011 VA examiner who noted that he was unable to accurately determine the Veteran's range of motion, but estimated flexion to 45 degrees. However, even considering this impairment of flexion during a period of intense pain, the estimated 45 degrees of flexion was not productive of functional loss warranting the assignment of an additional disability rating. Critically, the January 2013 VA examiner documented the Veteran's complaints of bilateral knee pain, but noted that he was consistently able to achieve full flexion of 110 degrees bilaterally, despite pain on movement. Thus, the pain does not appear to be productive of an increased disability rating. The Board additionally notes that the Veteran's range of motion was not additionally affected by repetition, weakness, fatigability, or incoordination. See the VA examination report dated January 2013. Thus, the only DeLuca factor present is subjective complaints of pain, which is not however productive of functional loss. The Board therefore finds that the assignment of additional disability based on DeLuca factors is not warranted. Accordingly, for the reasons expressed above, the Board finds that the Veteran's left and right knee disabilities are appropriately assigned 10 percent disability ratings under the applicable criteria. 38 C.F.R. § 4.71a, DC 5260. Increased evaluations in excess of 10 percent for chondromalacia patellae of the left and right knees are not warranted. c. Extraschedular Consideration The Board also finds that evidence does not show an exceptional or unusual disability picture as would render impractical the application of the regular schedular rating standards. See 38 C.F.R. § 3.321 (2013). In this regard, the Board notes that it is undisputed that the service-connected gastritis and bilateral knee disabilities have had an adverse effect on employability, but it bears emphasis that the schedular rating criteria are designed to take such factors into account. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1 (2013). Here, the very problems reported by the Veteran are contemplated by the criteria discussed above. 38 C.F.R. §§ 4.10, 4.40. Thus, given the lack of evidence showing unusual disability not contemplated by the rating schedule, the Board concludes that a remand to the RO for referral of these issues to the VA Central Office for consideration of extraschedular evaluations is not warranted. III. TDIU claim It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16 (2013). A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." See 38 C.F.R. §§ 3.340(a)(1), 4.15 (2013). "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). "Marginal employment shall not be considered substantially gainful employment." See 38 C.F.R. § 4.16(a) (2013). The Court noted the following standard announced by the Eighth Circuit in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): 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. See Moore, 1 Vet. App. at 359. A claim for a total disability rating based upon individual unemployability "presupposes that the rating for the [service-connected] condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated there was a need to discuss whether the standard delineated in the controlling regulations was an "objective" one based on the average industrial impairment or a "subjective" one based upon the veteran's actual industrial impairment. In a pertinent precedent decision, the VA General Counsel concluded that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91. In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training and previous work experience, but not to his age or to any impairment cause by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2013). A total disability rating for compensation may 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, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. See 38 C.F.R. § 4.16(a) (2013). Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extraschedular consideration in accordance with 38 C.F.R. § 3.321 (2013). As was discussed in the law and regulations section above, TDIU may be awarded on a schedular or extraschedular basis. As indicated above, the issue under consideration is whether the Veteran is entitled to TDIU for the period prior to March 27, 2009. Prior to March 27, 2009, the Veteran was service-connected for gastritis at 30 percent disabling; left shoulder degenerative arthritis at 20 percent disabling; residuals of a cold injury to the right and left lower extremities, each evaluated at 20 percent disabling; chondromalacia patellae of the left and right knees, each evaluated at 10 percent disabling; and folliculitis of the neck and scalp, each evaluated at 10 percent disabling. Accordingly, although these disabilities combined to an 80 percent evaluation, the Veteran fails to meet the schedular criteria for entitlement to TDIU prior to March 27, 2009. See 38 C.F.R. § 4.16(a) (if there are two or more service-connected disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more). The claim must therefore be considered on an extraschedular basis. In accordance with 38 C.F.R. § 4.16(b), the Board has considered whether the Veteran's claim for TDIU should be referred to the Director of the Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b)(1). The Court has stated that in order for a veteran to prevail on a claim for a TDIU under 38 C.F.R. § 4.16(b), the record must reflect some factor that takes his case outside of the norm. The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether a veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. Moreover, as already noted, an inability to work due to non-service-connected disabilities or age may not be considered. 38 C.F.R. §§ 4.14, 4.19. In making its determination, VA considers such factors as the extent of the service-connected disability and a veteran's employment and educational background. 38 C.F.R. §§ 3.321(b), 3.340, 3.341, 4.16(b), 4.19. In this regard, the Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) addressed the matter of extraschedular ratings when it reviewed and affirmed the Court's Thun decision. In Thun, the Federal Circuit expressly stated that "only the Under Secretary [for Benefits] and the [Compensation and Pension] Director have the authority to award an extraschedular rating." Thun, 572, F.3d at 1370. The Federal Circuit found that, at a minimum, the ROs and the Board were intended to play some role in evaluating a claim for an extraschedular rating. Id. However, "[p]ermitting the regional offices and the Board to issue a 'field station submission' in which they recommended extraschedular consideration still reserves to the Under Secretary and the Director the ultimate authority to 'approve' those recommendations based on whether the Veteran should receive an extraschedular rating 'to accord justice.'" Id. The Federal Circuit, in fact, stated that the Court held that "while the Under Secretary for Benefits and the Director of Compensation and Pension Services are the only individuals authorized to assign an extraschedular rating, [ROs] and the Board may conduct initial screening of disability claims and may refer . . . only those claims that meet two of the three regulatory criteria for extraschedular consideration." Thun, 572 F.3d at 1367 (citing Thun, 22 Vet. App. at 111). Lastly, the Federal Circuit stated that its interpretation did not restrict the opportunity for judicial review." If the regional office or the Board makes factual findings adverse to the claimant with regard to the extraschedular claim, those findings will be reviewable by the Veterans Court . . . just as would be the case if those findings were made by the Under Secretary or the Director." Thun, 572 F.3d at 1371. Given the Federal Circuit's interpretation of the extraschedular provisions of 38 C.F.R. § 3.321(b), only the Compensation and Pension Director or the Under Secretary for Benefits has the authority to award an extraschedular rating. The Board possesses no such authority. Thus, pursuant to Thun, the question currently before the Board is limited to whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate and specifically, in the context of the TDIU question, whether the Veteran was unable to secure and follow substantially gainful employment because of his service-connected disabilities for the period in question. The Veteran is forty years old. The record indicates that he has a high school education. He has been unemployed since 2004. See the VA treatment records dated December 2005 & the private treatment records dated December 2005 and November 2004. Crucially, the evidence of record does not show that, prior to March 27, 2009, the Veteran's service-connected disabilities were so exceptional or unusual that they caused him to be unemployable. Although the Veteran did not work, there was no indication that his unemployment was due to any special factors surrounding his service-connected disabilities. In this matter, the evidence of record does not reflect that the Veteran's service-connected disabilities have impacted his employability beyond what is contemplated by the schedular ratings assigned. Notably, medical records dated from November 1994 to January 2010, the VA examination reports dated in November 1994, July 2004, February 2008, and July 2009, as well as, a November 1995 statement from the Veteran's former employer, and the Veteran's January 2006 DRO hearing testimony and a January 2005 statement from the Veteran reflect that he has a high school education and that he received some electrical technician training. In the years since service, the Veteran has been employed as a security guard and as a custodian/maintenance mechanic for the Postal Service. See the VA examination reports dated January 2013, the VA treatment record dated June 2009, and the DRO hearing transcript dated January 1996. The Veteran contends that during his employment, he was placed on restricted duty and/or missed work on various occasions due to knee and shoulder problems, shortness of breath, and nose bleeds. Id. The pertinent evidence of record shows that the Veteran was unable to maintain employment after he was injured in a motor vehicle accident in November 2004, sustaining a severe injury to his right hip. See the private treatment records dated November 2005 and December 2005. A VA treatment record dated December 2005 specifically indicated that the Veteran reported he had not been able to work since his car accident and resulting hip fracture one year prior. He was granted SSA benefits, effective November 2004. Notably, in a July 2004 VA examination report as to the service-connected left and right knee disabilities, the examiner indicated that the Veteran works as a custodian at the post office and "is able to do the activities of daily living except when it comes to attempting to squat or move quickly or go up and down stairs at which time he has pain." A July 2004 VA dermatological examination noted that the Veteran's service-connected folliculitis resulted in "minimal functional impairment of his activities of daily living and his general employment capacity or state is that he is able to carry out his job." A July 2004 VA neurological examination noted that until approximately six months prior, the Veteran was experiencing prostrating headaches 8 to 10 times per month. However, following a medication adjustment, the frequency and intensity of the headaches had decreased. The October 2004 VA examination as to the service-connected gastritis noted the Veteran's report of losing 40 hours in the prior month due to his gastritis. VA treatment records dated March 2004 noted that the Veteran's cold injury residuals of the bilateral lower extremities caused tingling and stiffness in the feet in cold weather. Although reduced range of motion was noted in the February 2008 VA examination as to the Veteran's service-connected left shoulder disability, the examiner did not address the extent of the Veteran's functional limitation with respect to his employability. Pursuant to the March 2013 Remand, the Veteran was afforded a VA medical opinion as to whether his service-connected disabilities prevented him from securing and following substantially gainful employment for which his education and occupational experience would have otherwise qualified him for the period prior to March 27, 2009. Upon review of the entire claims file including the Veteran's SSA records, a July 2013 VA examiner concluded: [t]he service-connected disabilities of gastritis, degenerative arthritis of the left shoulder, residuals of cold injury to both lower extremities, chondromalacia patellae both knees, post-concussive headache syndrome and folliculitis of the neck and scalp, would not have in combination or individually, prevented this Veteran from gaining or keeping gainful physical or sedentary employment for which his educational and occupational experience would otherwise [have] qualified him from the period of time between March 2004 and September 2009. The above-mentioned conditions did not present during that period of time a functional impairment that would have prevented the Veteran from engaging in physical or sedentary employment. The Board recognizes that the Veteran had certain physical restrictions such as functional impairment of standing, lifting, and walking due to his service-connected knee and shoulder disabilities. However, such restrictions are considered by the current disability ratings. See Van Hoose, supra. Critically, the severity of the Veteran's service-connected symptoms was specifically contemplated by the disability ratings assigned prior to March 27, 2009. See 38 C.F.R. §§ 4.40, 4.45. Crucially, there is no probative medical evidence in the file to support a conclusion that his service-connected disabilities alone made him unemployable for the period under consideration. Although he may not have been able to work as a custodian/maintenance mechanic, there was no indication that his service-connected disabilities precluded other employment. Thus, there is no basis to refer the Veteran's case for consideration of an extraschedular evaluation. Without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating is not warranted. See Thun, 22 Vet. App. at 115-16. As the Veteran does not satisfy the criteria for a TDIU rating under 4.16(a) and his service-connected disabilities are not such as to warrant consideration of an extraschedular rating under 38 C.F.R. § 4.16(b), the Board concludes that the Veteran's claim for TDIU does not warrant referral for extraschedular consideration. The Veteran's claim of entitlement to TDIU is accordingly denied. ORDER Entitlement to an increased disability rating for service-connected gastritis is denied. Entitlement to an increased disability rating for service-connected chondromalacia patellae of the left knee is denied. Entitlement to an increased disability rating for service-connected chondromalacia patellae of the right knee is denied. Entitlement to a TDIU, prior to March 27, 2009, is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs