Citation Nr: 1631388 Decision Date: 08/05/16 Archive Date: 08/12/16 DOCKET NO. 10-24 784 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for right ilioinguinal neuralgia associated with reflex sympathetic dystrophy. 2. Entitlement to an increased disability rating for limitation of right knee motion associated with reflex sympathetic dystrophy, currently rated 0 percent prior to August 13, 2013, and 10 percent since August 13, 2013. 3. Entitlement to an increased disability rating for limitation of right hip motion associated with reflex sympathetic dystrophy, currently rated 0 percent prior to August 13, 2013, and 10 percent since August 13, 2013, to include whether a separate compensable rating for impairment of the thigh is warranted. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The appellant is a veteran (the Veteran) who had qualifying (honorable) active duty service from September 1987 to September 1991, and who had non-qualifying service from September 1991 to February 1993. This appeal comes before the Board of Veterans' Appeals (Board) from an August 2008 rating decision of the RO in St. Louis, Missouri. The issue of TDIU entitlement is a component of the increased rating claim pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). In March 2012, the Veteran presented testimony at a Board hearing chaired by the undersigned Veterans Law Judge sitting at the RO. A transcript of the hearing is associated with the claims file. In correspondence received in February 2015, the Veteran has raised the issues of entitlement to service connection for specific musculoskeletal disorders of the right knee and hip, to include right hip arthritis, and a claimed right knee injury in service. As will be discussed in more detail below, these matters are not components of the service-connected disabilities, which include only a neurological disability (reflex sympathetic dystrophy) and associated limitation of motion of the right hip and knee. Therefore, the issues of entitlement to service connection for erectile dysfunction, depression, and additional disabilities of the right hip and knee, are referred to the AOJ for appropriate action. See 38 C.F.R. §19.9(b)(2015). FINDINGS OF FACT 1. For the entire period on appeal, right ilioinguinal neuralgia has been manifested by severe incomplete paralysis. 2. Prior to August 13, 2013, limitation of right knee motion had been manifested by symptomatology that most closely approximated favorable ankylosis. 3. Since August 13, 2013, limitation of right knee motion has been manifested by symptomatology that most closely approximates favorable ankylosis. 4. Prior to August 13, 2013, limitation of right hip motion had been manifested by flexion limited to 80 degrees (60 degrees during flares), adduction limited such that he could not cross his legs, and rotation limited such that he could not toe out more than 15 degrees; extension was not limited to 5 degrees. 5. Since August 13, 2013, limitation of right hip motion has been manifested by flexion limited to 80 degrees (60 degrees during flares), adduction limited such that he cannot cross his legs, and rotation limited such that he cannot toe out more than 15 degrees; extension is not limited to 5 degrees. 6. For the entire period on appeal, service-connected disabilities have not rendered the Veteran unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a disability rating higher than 10 percent for right ilioinguinal neuralgia have not been met for any period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 8629 (2015). 2. Prior to August 13, 2013, the criteria for an increased rating of 30 percent for limitation of right knee motion were met; the criteria for a rating in excess of 30 percent were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256, 5260, 5261 (2015). 3. Since August 13, 2013, the criteria for an increased rating of 30 percent for limitation of right knee motion have been met; the criteria for a rating in excess of 30 percent have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256, 5260, 5261 (2015). 4. Prior to August 13, 2013, the criteria for an increased rating of 10 percent for limitation of right hip flexion were met; the criteria for a rating in excess of 10 percent were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5252 (2015). 5. Since August 13, 2013, the criteria for a rating in excess of 10 percent for limitation of right hip flexion have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5252 (2015). 6. For the entire period on appeal, the criteria for a separate disability rating of 20 percent for right thigh impairment associated with reflex sympathetic dystrophy have been met; the criteria for a rating in excess of 20 percent have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5251 (2015). 7. The criteria for TDIU have not been met for any period. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability Ratings - Laws and Regulations Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. 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). Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Schedular Consideration In a May 1995 rating decision, VA granted service connection for an inguinal hernia, which was rated on the basis of impairment of the digestive system. The current appeal arises from a claim for an increased rating received on July 11, 2008. In an August 2008 rating decision, VA denied a rating in excess of 10 percent for inguinal hernia residuals. The Veteran specifically appealed the denial of a separate rating for associated impairment of the right lower extremity; and, during the pendency of the appeal, in an April 2010 rating decision, VA granted a separate rating of 10 percent for neurological impairment of the right lower extremity (reflex sympathetic dystrophy) affecting the right inguinal nerve under Diagnostic Code 8629, effective July 11, 2008. Following additional development conducted in relation to the Board's remand in January 2013, in a February 2015 rating decision, VA granted service connection for associated limited motion of the right hip and knee. An initial rating of 10 percent was assigned for the right hip under Diagnostic Code 5252, effective August 13, 2013. An initial rating of 10 percent was assigned for the right knee under Diagnostic Code 5260, also effective August 13, 2013. Right Ilioinguinal Neuralgia It is unclear why the RO chose Diagnostic Code 8629 to rate the disability as that code applies to the external curtaneous nerve of the thigh. Diagnostic Code 8630 applies specifically to the ilio-inguinal nerve which is at issue in this case. Nervertheless, both diagnostic codes provide equivalent ratings for equivalent impairment. Therefore, there is no prejudice to the claim. Under Diagnostic Codes 8629 and 8630, a 10 percent rating is the maximum rating available. The rating of 10 percent applies to paralysis, neuritis, or neuralgia that is severe to complete. For mild or moderate conditions, a 0 percent rating is for assignment. 38 C.F.R. § 4.124a, Diagnostic Codes 8629, 8630. In this case, the Veteran is in receipt of the maximum rating available for the service-connected condition. There is no higher rating available in light of the specific nerve involved and in light of the specific disability that is service-connected. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). Limitation of Right Knee Motion Service connection is not in effect for a specific knee joint disorder. The rating assigned under Diagnostic Code 5260 is on the basis of limited flexion of the knee associated with reflex sympathetic dystrophy, a neurological disorder. Accordingly, certain of the diagnostic codes pertinent to disabilities localized in the knee joint, such as arthritis, ligamental instability, joint dislocation, subluxation, and malalignment, meniscal pathology, and conditions such as genu recurvatum, are not appropriate in this case. The diagnostic codes governing limited motion of the knee and leg include Diagnostic Codes 5256, 5260 and 5261. The Board also acknowledges recent assertions on the Veteran's part that he injured his right knee in service and the implied assertion that service connection should be granted for other orthopedic disorders of the right knee, in addition to limited motion associated with reflex sympathetic dystrophy. The Board simply reiterates that the issue appealed is a rating claim. The Board's jurisdiction here is limited to the service-connected disability. Under the circumstances of this case, the claim does not include consideration of entitlement to service connection for additional knee disorders. The Veteran's assertions have been referred to the RO in the Introduction. Ankylosis is defined as the "[s]tiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint." Dinsay v. Brown, 9 Vet. App. 79, 81 (1996), quoting Stedman's Medical Dictionary 87 (25th ed. 1990). Diagnostic Code 5256 provides a rating of 60 percent for extremely unfavorable ankylosis, in flexion at an angle of 45 degrees or more. A 50 percent rating is provided for unfavorable ankylosis in flexion between 20 degrees and 45 degrees. A 40 percent rating is provided for unfavorable ankylosis in flexion between 10 degrees and 20 degrees. A 30 percent rating is provided for ankylosis at a favorable angle in full extension or in slight flexion between 0 degrees and 10 degrees. 38 C.F.R. § 4.71, Diagnostic Code 5256. Diagnostic Code 5260 addresses limitation of flexion of the knee. Under that code, a 30 percent rating is for application were flexion is limited to 15 degrees; a 20 percent rating is for application where flexion is limited to 30 degrees; a 10 percent rating is for application where flexion is limited to 45 degrees; a 0 percent rating is for application where flexion limited to 60 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Diagnostic Code 5261 addresses limitation of extension of the knee. Under that code, a 50 percent rating is for application where extension is limited to 45 degrees; a 40 percent rating is for application where extension is limited to 30 degrees; a 30 percent rating is for application where extension is limited to 20 degrees; a 20 percent rating is for application where extension is limited to 15 degrees; a 10 percent rating is for application where extension is limited to 10 degrees; a 0 percent rating is for application where extension is limited to 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The criteria under Diagnostic Codes 5260 and 5261 are not considered to be overlapping, and therefore separate ratings can be assigned where appropriate symptomatology is shown. The report of a VA examination in August 2013 reveals that flexion of the right knee was limited to 40 degrees, with objective evidence of painful motion at 40 degrees. Extension was limited to 5 degrees, with objective evidence of painful motion at 5 degrees. Due to pain, the Veteran was not able to tolerate any repetitions. The examiner reported that the examination was occurring during a flare which had been initiated by manipulation of the joint during X-rays taken previous to the examination. The examiner estimated that impairment during flares would likely be similar to the examination, which was severely limited to 40 degrees flexion and 5 degrees extension because of pain. Muscle strength was rated at 3 out 5 on flexion and extension. There were no acute osseous findings on X-rays. The Veteran reported that his knee pain was so severe he could not walk more than a few feet to and from the bed to the bathroom. The examiner clarified in December 2013 that the decreased range of motion and other abnormal findings related to the knee were secondary to general pain in the lower extremity, to include the knee, hip and leg musculature, from reflex sympathetic dystrophy. Regarding measurements of flexion, the right knee exceeds the 30 degrees of flexion specified for a 20 percent rating. Thus, a rating in excess of 10 percent is not warranted for the right knee on the basis of limited flexion under Diagnostic Code 5260. Regarding measurements of extension, the requirement of extension limited to 10 degrees for a 10 percent rating is not shown. Thus, a compensable rating is not warranted for the right knee on the basis of limited extension under Diagnostic Code 5261. The Board has also considered the impact of pain on flexion and extension of the knee. The Board acknowledges that the Veteran declined to complete repetitive range of motion testing of the knee due to pain. While VA law does not contemplate the assignment of a disability rating on the sole basis of pain, Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011), where pain affects the normal working movements of the body such as excursion, strength, speed, coordination, and endurance, it may be considered as constituting functional loss. Id. at 38; see 38 C.F.R. § 4.40. These normal working movements of the body are evaluated in the case of a knee disability through range of motion testing and strength testing. In light of the reduction of range of motion to essentially 5 degrees of flexion after a single excursion of motion of the right knee, and in light of the decreased strength of the right knee on flexion and extension, the Board finds that the Veteran's symptomatology more nearly approximates ankylosis of the right knee than it does any degree of limited flexion or extension. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 206-07. And, in light of the Veteran's ability to attain within 5 degrees of the neutral position, the Board finds that a 30 percent rating is warranted. As there is no finding of unfavorable ankylosis and no description of symptomatology that would approximate unfavorable ankylosis, the Board concludes that a disability rating in excess of 30 percent is not warranted. The Board also notes that, while separate ratings can be assigned under Diagnostic Codes 5260 and 5261, the rating under Diagnostic Code 5256 encompasses all excersions of knee motion. Any separate ratings under 5260 or 5261 would be inherently overlapping with the rating under Diagnostic Code 5256 and cannot be assigned. 38 C.F.R. § 4.14. The Board acknowledges the Veteran's assertion in a Notice of Disagreement with the February 2015 rating decision, which granted a separate 10 percent rating for limited knee motion, and which assigned an effective date of August 13, 2013, for that grant, that the separate rating should have been effective back to the date of the original claim in 2008. The Board agrees that the issue on appeal has always encompassed the issue of associated limitation of motion of the knee, which the Veteran has consistently reported. Also notable, the RO made the April 2010 grant of service connection for right lower extremity neurological impairment effective July 11, 2008, the date of the original claim and not the date of the July 2009 examination which confirmed its presence. In this case, the symptomatology of the right lower extremity would appear to have been present throughout the period on appeal. The Board resolves all reasonable doubt in favor of the claim and concludes that a 30 percent rating is warranted prior to and since August 13, 2013. To the extent any higher level of compensation is sought, the preponderance of the evidence is against the claim, and hence the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Limitation of Right Hip Motion Service connection is not in effect for a specific hip disorder. The rating assigned under Diagnostic Code 5252 is on the basis of limited motion associated with reflex sympathetic dystrophy, a neurological disorder. Accordingly, certain of the diagnostic codes pertinent to disabilities localized in the hip, such as arthritis and joint dislocation, are not appropriate in this case. The diagnostic codes governing limited motion of the hip and thigh include Diagnostic Codes 5250, 5251, 5252, and 5253. The Board also acknowledges recent assertions on the Veteran's part that he should be rated on the basis of arthritis of the right hip and the implied assertion that service connection should be granted for other disorders of the right hip in addition to limited motion associated with reflex sympathetic dystrophy. While such consideration would be unlikely to impact the current rating, which is assigned on the basis of limited motion, as arthritis would also be, the Board simply reiterates that the issue appealed is a rating claim. The Board's jurisdication here is limited to the service-connected disability. Under the circumstances of this case, the claim does not include consideration of entitlement to service connection for additional diagnoses such as arthritis. That matter has been referred to the RO in the Introduction. Diagnostic Code 5250 governs ankylosis of the hip. A 90 percent rating is available for extremely unfavorable ankylosis such that the foot does not reach the ground and crutches are necessitated. A 70 percent rating is avaialbe for unfavorable ankylosis in an intermediate position. A 60 percent rating is available for favorable ankylosis in flexion at an angle between 20 degrees and 40 degrees and slight adduction or abduction. 38 C.F.R. § 4.71, Diagnostic Code 5250. Under Diagnostic Code 5251, a 10 percent rating is assigned for limited extension of the thigh to 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5251. Under Diagnostic Code 5252, limited thigh flexion is assigned a 40 percent rating if limited to 10 degrees, a 30 percent rating if limited to 20 degrees, a 20 percent rating if limited to 30 degrees, and a 10 percent rating if limited to 45 degrees. 38 C.F.R. § 4.71, Diagnostic Code 5252. Under Diagnostic Code 5253, limited thigh abduction is assigned a 20 percent rating if motion is lost beyond 10 degrees, and a 10 percent rating if the legs cannot be crossed. Limited thigh rotation is assigned a 10 percent rating if the toe out cannot be accomplished more than 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5253. Similar to the codes governing limited motion of the knee, the Board finds that the criteria under Diagnostic Codes 5251, 5252, and 5253 are not considered to be overlapping, and therefore separate ratings can be assigned under each where appropriate symptomatology is shown to be associated to the service-connected disability. The report of a VA examination in August 2013 reveals that the Veteran was not able to perform extension and abduction testing due to being confined to a wheelchair. Flexion was measured to 80 degrees, with normal flexion noted as 125 degrees. Painful motion began at 80 degrees. The Veteran estimated that, when he is experiencing maximum pain, flexion would be 20 degrees less. Adduction was limited such that the Veteran could not cross his legs. Rotation was limited such that he could not toe-out more than 15 degrees. Strength in the right hip was 4 out of 5 on flexion and abduction. The Veteran could not perform any repetitions. There was no ankylosis. The Veteran reported that he uses a wheelchair the majority of the time. His wife drives him to work and he is in the wheelchair at work. He does not go to the grocery store or church due to his right hip, groin, knee, and leg pain. At home, he uses a cane to go from the bathroom to the bed. The examiner found that there was not such functional impairment that no effective function remained other than that which would be equally well served by an amputation with prosthesis (Functions of the upper extremity include grasping, manipulation, etc., while functions for the lower extremity include balance and propulsion, etc.). X-rays revealed degenerative changes. The Veteran was not able to stand for more than five minutes. He reported frequent falls and had a fall one month prior. The examiner clarified in December 2013 that the decreased range of motion and other abnormal findings related to the knee were secondary to general pain in lower extremity, to include the knee, hip and leg musculature, from reflex sympathetic dystrophy. Based on evidence substantiating a limitation of adduction such that the Veteran cannot cross his legs and a limitation of rotation such that the Veteran cannot toe out more than 15 degrees, the Board also finds that a separate compensable rating is warranted for impairment of the thigh under Diagnostic Code 5253. As the Veteran meets two of the distinct criteria under Diagnostic Code 5253, and as abduction could not be tested due to the Veteran's placement in a wheelchar, the Board resolves all reasonable doubt in favor of the claim and concludes that the maximum rating of 20 percent is warranted for thigh limitation. As that is the maximum rating contemplated for thigh impairment (abduction, adduction, and rotation), the Board concludes that a schedular rating in excess of 20 percent is not warranted. See Sabonis, 6 Vet. App. at 430. Based on the measured limitation of hip flexion of 80 degrees, the Board finds that a higher rating is not warranted. While the Board acknowledges the Veteran's assertion that, when experiencing maximum pain, his flexion would be 20 degrees less, the Board observes that the Veteran was reporting pain at a level of 9 out of 10 during the examination. Moreover, even with this estimate, the criteria for a higher rating for limited flexion would not be met. The Veteran also estimated that, if he were not in a wheelchair, hip extension would be 5-10 degrees less. However, hip extension could not be measured as the Veteran was in a wheelchair. Therefore, it is unclear to which measurement the 5-10 degree reduction relates. There is no assertion or other evidence to substantiate that extension of the right hip is or has been limited to 5 degrees. Accordingly, the Board concludes that a separate rating is not warranted for limited hip extension. The Board has also considered the impact of pain on motion of the hip. The Board acknowledges that the Veteran declined to complete repetitive range of motion testing of the hip due to pain. However, even with the reduction in flexion following one repetition, the criteria for favorable ankylosis are not more nearly approximated than are those for the separate ratings discussed above. The minimum rating of 60 percent for ankylosis requires fixation in flexion at an angle between 20 degrees and 40 degrees and slight adduction or abduction. Here, the evidence does not suggest that the Veteran's right hip is fused or fixed at an angle between 20 degrees and 40 degrees, nor does it more nearly approximate any degree of unfavorable ankylosis. In sum, for the entire period on appeal, the Veteran's limitation of right hip motion associated with reflex sympathetic dystrophy has been manifested by flexion that is limited to 80 degrees (60 degrees during flares), adduction that is limited such that he cannot cross his legs, and rotation that is limited such that he cannot toe out more than 15 degrees; however, extension is not limited to 5 degrees. Accordingly, a separate rating of 20 percent for thigh impairment is warranted. However, a rating in excess of 10 percent for limitation of flexion is not warranted; and, a separate rating for limitation of extension is not warranted. For the reasons discussed with respect to the right knee, the Board finds that the limited right hip motion has been present at a consistent level both prior to and since August 13, 2013. Accordingly, the separate rating of 20 percent for right thigh impairment is warranted both prior to and since August 13, 2013. And, the 10 percent rating assigned for limited flexion since August 13, 2013, is also warranted prior to August 13, 2013. To the extent any higher level of compensation is sought, the preponderance of the evidence is against the claim, and hence the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration The Board has considered whether an extraschedular evaluation is warranted for the issues on appeal. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2015). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. The Board finds that the first Thun element is not satisfied with respect to the Veteran's musculoskeletal disabilities which are manifested by signs and symptoms such as pain, weakness, fatigability, and lack of endurance, which impairs his ability to stand and walk for long periods. These signs and symptoms, and their resulting impairment, are contemplated by the rating schedule. The diagnostic codes in the rating schedule corresponding to disabilities of the knee and hip provide disability ratings on the basis of limited motion to include ankylosis. For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. Given the variety of ways in which the rating schedule contemplates functional loss for musculoskeletal disabilities, the Board concludes that the schedular rating criteria describe the Veteran's disability picture, which is manifested by impairment in standing and walking for long periods. In short, there is nothing exceptional or unusual about the Veteran's disability because the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet. App. at 115. The Board finds that the first Thun element is not satisfied with respect to the Veteran's right ilioinguinal neuralgia associated with reflex sympathetic dystrophy which is manifested by signs and symptoms such as pain and decreased sensation. Moreover, they permit the assignment of ratings based on the overall level of impairment caused by the disability as opposed to whether specific symptoms are present. In this regard and consistent with the reasoning presented above, the Board finds that the rating schedule is adequate, even in regard to the collective and combined effect of all of the Veteran's service connected disabilities, and that referral for extraschedular consideration is not warranted under the circumstances of this case. Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. Aug. 6, 2014). In so finding, the Board notes that the Veteran has not identified or asserted that the collective and combined effect of all of the Veteran's service connected disabilities have rendered the rating schedules for the peripheral nerves and joints inadequate. TDIU Consideration 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. 38 C.F.R. § 4.16. 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. 38 C.F.R. §§ 3.340(a)(1), 4.15 (2015). The term substantially gainful occupation is not specifically defined for purposes of the regulations governing TDIU. However, marginal employment is not considered substantially gainful employment. Marginal employment includes situations in which an individual's annual income does not exceed the poverty threshold for one person. Employment may be marginal even when the individual's earned income exceeds the poverty threshold if such individual is employed in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a). 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. 38 C.F.R. § 4.16(a). A claim for a total disability rating based upon individual unemployability presupposes that the rating for the service-connected disability is less than 100 percent, and only asks for TDIU because of subjective factors that the objective rating does not consider. Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2015). 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. For a veteran to prevail on a claim for a total compensation rating based on individual unemployability on an extraschedular basis, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In this case, the Veteran has not asserted that he is unemployed or that his work does not constitute a substantially gainful occupation. A January 2, 2012, letter from his employer states that the Veteran has been employed with the company since December 2001. [He] has demonstrated what every employer wants in an employee leadership and self-starter, but his medical condition/disability stops him from exceeding to his full potential. We have tried to accommodate [him] and adjust the work load when he is unable to walk around a lot. [He] has missed numerous days and has been excessively tardy. We have asked [him] to improve in this area because we are forced to pass his work on to other technician because we have a service that we are providing for our customers. [He] knows the details of his job and is an ideal employee, but in the last three years that he has been under my supervision I have noticed the change in his health relating to his medical condition, pain, and his inability to be mobile when he is in this pain which is most of the time. We will continue to work with [him] because we value his commitment to the company. The Veteran's service-connected disabilities have clearly resulted in occupational impairment; and the evidence indicates that he has had to take sick leave and vacation leave, and this has in turn decreased his productivity and reduced his chances for advancement. However, a disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. Van Hoose, 4 Vet. App. 361. In Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans' Claims (Veterans Court) held that where an individual became employed at a substantially gainful occupation, irrespective of the number of hours or days that individual actually works and without regard to his earned annual income prior to his having been awarded TDIU, such employment constitutes, as a matter of law, a substantially gainful occupation and thus "actual employability" for the purposes of 38 C.F.R. § 3.343(c)(1). As the Veteran has been actually employed in a substantially gainful occupation throughout the period on appeal, the Board finds that TDIU is not warranted as a matter of law. See Sabonis, 6 Vet. App. at 430 Special Monthly Compensation The Board has considered whether the Veteran's disability picture warrants any level of Special Monthly Compensation (SMC). See 38 U.S.C.A. §§ 1114; 38 C.F.R. §§ 3.350, 3.352. The Veteran is currently not in receipt of any level of SMC. The evidence demonstrates that, while he has multiple lower extremity disabilities, he does not have such impairment as approximates loss of use of either lower extremity. 38 U.S.C. § 1114(k), (m), (n), (o); 38 CFR § 3.350(a), (c), (d), (e). In so finding, the Board notes the specific finding of the August 2013 VA examiner that there was not such functional impairment in this case that no effective function remained other than that which would be equally well served by an amputation with prosthesis. While the Veteran uses a wheelchair, he has not been found to be housebound or in need of the aid and attendance of another. As discussed above, he has been employed outside the home for the entire period on appeal. 38 U.S.C. § 1114(l), (s), (r) 38 CFR § 3.350(b), (i), (h). The combined disability rating in light of the Board's actions in this decision is 70 percent and the highest rated single disability is 30 percent. 38 U.S.C. § 1114(p), (s) 38 CFR § 3.350(f), (i). Under the circumstances here, the Board concludes that SMC is not warranted. Duties to Notify and Assist VA's duty to notify was satisfied by a letter in July 2008. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The RO has obtained pertinent medical records including the service treatment records, VA outpatient treatment reports, and private treatment reports identified by the Veteran. The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of these claims that has not been obtained. The RO has also obtained a thorough medical examination regarding the claims, as well as medical opinions. The Veteran has made no specific allegations as to the inadequacy of any opinion. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). As noted above, this appeal involves a remand by the Board for additional evidentiary development. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). While substantial compliance is required, strict compliance is not. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In this case, the RO substantially complied with the Board's remand instructions by affording an opportunity for the Veteran to identify additional evidence for the record, by obtaining updated VA clinical records, and by obtaining a VA examination and medical opinion regarding the manifestations and severity of the service-connected disability and its impact on employment. The RO readjudicated the remanded claim and denied referral of the claim for extraschedular consideration. When conducting a hearing, a VA hearing officer, to include a Veterans Law Judge, must suggest that a claimant submit evidence on any issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. See Bryant v. Shinseki, 23 Vet. App. 488 (2010); 38 C.F.R. § 3.103 (2015). The hearing officer also must suggest the submission of evidence when testimony during the hearing indicates that it exists (or could be reduced to writing) but is not of record. Here, during the Board hearing, the Veteran was informed as to the basis for the RO's denial of his claims, and he was informed of the information and evidence necessary to substantiate each claim. Moreover, the file was left open for 60 days in order to supplement the record. Such actions supplement the VCAA and comply with 38 C.F.R. § 3.103. ORDER A disability rating in excess of 10 percent for right ilioinguinal neuralgia is denied. Prior to August 13, 2013, a disability rating of 30 percent, but not higher, for limitation of right knee motion is granted. Since August 13, 2013, a disability rating of 30 percent, but not higher, for limitation of right knee motion is granted. Prior to August 13, 2013, a disability rating of 10 percent, but not higher, for limitation of right hip flexion is granted. Since August 13, 2013, a disability rating in excess of 10 percent for limitation of right hip flexion is denied. For the entire period on appeal, a separate disability rating of 20 percent, but not higher, for right thigh impairment associated with reflex sympathetic dystrophy is granted. For the entire period on appeal, TDIU is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs