Citation Nr: 1801376 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 11-17 060 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a low back disorder. 3. Entitlement to a disability rating in excess of 10 percent for patellofemoral syndrome of the right knee, with stress fracture of the medial tibial plateau. 4. Entitlement to a disability rating in excess of 10 percent for patellofemoral syndrome of the left knee, with stress fracture of the medial tibial plateau. Entitlement to a total disability evaluation, based on individual unemployability, due to service-connected disabilities (TDIU). WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD F. Yankey Counsel INTRODUCTION The Veteran served on active duty from March 2001 to October 2001. The Veteran is currently incarcerated and his release date is in 2023. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) in Muskogee, Oklahoma. In December 2011, the Veteran testified at a Board videoconference hearing. The hearing transcript is of record. The Veterans Law Judge who conducted the December 2011 hearing is no longer employed by the Board, and while the Veteran was offered a hearing before another Veterans Law Judge in October 2017, he declined the opportunity. In February 2014, June 2016 and March 2017, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. FINDINGS OF FACT 1. Bilateral hearing loss was noted at the time of the Veteran's entrance into service. 2. The evidence does not show that bilateral hearing loss increased in disability during active service. 3. A low back disability was not present in service or for years thereafter, and is not etiologically related to service or service-connected disability. 4. The Veteran's right knee disability is manifested by degenerative arthritis with limitation of flexion, which is not limited to 30 degrees or less; and limitation of extension, which is not limited to 15 degrees or more, even with consideration of pain, and other functional impairment; there is no evidence of semilunar cartilage impairment, recurrent subluxation or instability, tibia or fibula impairment or ankylosis 5. The Veteran's left knee disability is manifested by degenerative arthritis with limitation of flexion, which is not limited to 30 degrees or less; and limitation of extension, which is not limited to 15 degrees or more, even with consideration of pain, and other functional impairment; there is no evidence of semilunar cartilage impairment, recurrent subluxation or instability, tibia or fibula impairment or ankylosis 6. The Veteran's service-connected disabilities do not preclude him from obtaining or maintaining substantially gainful employment consistent with his education and occupational background. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1111, 1153 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2017). 2. A low back disability was not incurred in or aggravated by active service, its incurrence or aggravation during such service may not be presumed, and it is not proximately due to or the result of a service-connected disability. 38 U.S.C. § 1110, 1112, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). 3. The criteria for a rating in excess of 10 percent for patellofemoral syndrome of the right knee, with stress fracture of the medial tibial plateau have not been met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5256-5263 (2017). 4. The criteria for a rating in excess of 10 percent for patellofemoral syndrome of the left knee, with stress fracture of the medial tibial plateau have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5256-5263 (2017). 5. The criteria for a TDIU have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify & Assist There is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C. § 5103A (c)(2). All records pertaining to the conditions at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159 (c)(3)). In this case, the Veteran has indicated no such records and all pertinent records have been obtained. The Board observes that the Veteran has been incarcerated on felony charges since September 2013 and is not scheduled to be released until 2023. The Veteran's incarceration does not negate VA's statutory obligation to assist in the development of his claims. 38 U.S.C. § 5103A (2012). To the extent that he remains incarcerated, VA's duty to assist incarcerated Veterans requires tailored assistance to meet the circumstances of confinement. Wood v. Derwinski, 1 Vet. App. 190 (1991); Bolton v. Brown, 8 Vet. App. 185 (1995). While VA does not have the authority under 38 U.S.C. § 5711 (2012) to require a correctional institution to release a Veteran so that VA can provide him the necessary examination at the closest VA medical facility, VA's duty to assist an incarcerated Veteran extends, if necessary, to either having him examined by a fee-basis physician or requiring a VA physician to examine him at the prison where he resides. Bolton, 8 Vet. App. at 191. The VA Adjudication Procedure Manual contains a provision for scheduling examinations of incarcerated veterans. The manual calls for the RO or the local Veterans Health Administration (VHA) Medical Examination Coordinator to confer with prison authorities to determine whether the Veteran should be escorted to a VA medical facility for examination by VHA personnel. If that is not possible, the Veteran may be examined at the prison by: (1) VHA personnel; (2) prison medical providers at VA expense; or (3) fee-basis providers contracted by VHA. See M21-1, Part III.iv.3.A.9.d. It is noted that because some State laws restrict the movement of and access to prison inmates, neither of the above options may be possible. In such cases, documentation of substantial efforts to schedule and conduct the examination must be added to the claims folder. M21-1, Part III.iv.3.A.9.d. The Board remanded the Veteran's claim again in March 2017, to assist him by providing VA examinations, despite his incarceration. A May 2017 Administrative Decision outlines the steps taken by the RO to provide the Veteran with the required VA examinations. Specifically, it was noted that the VA Medical Center (VAMC) in Oklahoma City (OKC) informed the RO that they are unable to send an examiner to the Oklahoma Department of Corrections (DOC), where the Veteran is currently incarcerated, and that the prison refused to transport the Veteran. The VAMC also indicated that they are unable to perform a fee-based examination because the Oklahoma DOC does not allow for this. It was also noted that a conversation with the Department of Health Services for the Oklahoma DOC revealed that at this time, the DOC does not transport veterans from any sort of minimum, medium or maximum security facilities for disability determinations. Furthermore, they do not have any policy's that allow for a fee-basis examination system due to security concerns. This would include the prison medical staff conducting the examination or an outside provider coming into the prison. See May 2017 Administrative Decision. Under these circumstances, the Board finds that VA has now exhausted its efforts to afford the Veteran examinations for his service-connected right and left knee disabilities and his claimed bilateral hearing loss and low back disability, while tailoring its assistance to the peculiar circumstances of the Veteran's confinement. See Wood, 1 Vet. App. at 193. Therefore, the appeal will be decided based on the evidence of record. Legal Criteria for Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303 (b), an alternative method of establishing the second and third Shedden/Caluza elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303 (b). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In relevant part, 38 U.S.C. 1154 (a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must then determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). VA law provides that a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. See 38 U.S.C. § 1111. The presumption of soundness attaches only where there has been an induction examination during which the disability about which the veteran later complains was not detected. The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," and that "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." 38 C.F.R. § 3.304 (b). The law further provides that, if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service incurrence for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. In that case, the provisions of 38 U.S.C. § 1153 and 38 C.F.R. § 3.306 apply, and the burden falls on the veteran to establish aggravation. Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If a presumption of aggravation under section 1153 arises, due to an increase in a disability in service, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417; Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306 (b). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests arthritis to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (2017); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). With chronic diseases shown as such in service, or within the presumptive period after service, so as to permit a finding of service connection, subsequent manifestation of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Specific to claims for service connection, impaired hearing is considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Sensorineural hearing loss is subject to service connection based upon continuity of symptomatology as an "organic disease of the nervous system" under 38 C.F.R. § 3.309(a). Any other form of hearing loss, such as conductive hearing loss, is not subject to service connection based upon continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The U.S. Court of Appeals for Veterans Claims has determined that tinnitus should also be recognized as a "chronic" disorder. Accordingly, in this case, the Veteran's claims of continuity of symptomatology have been considered and addressed. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. At 54. Bilateral Hearing Loss The Veteran claims entitlement to service connection for bilateral hearing loss. Service treatment records show that hearing loss was diagnosed at the time of the Veteran's entrance examination, which was conducted in March 2001. If a preexisting disorder is noted upon entry into service, a veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. In such cases, 38 U.S.C. § 1153 applies and the burden falls on the veteran to establish aggravation. If the presumption of aggravation under section 1153 is applicable, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." See 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (b). The March 2011 enlistment examination noted the presence of mild hearing loss and the Veteran was given a hearing profile. A July 2001 in-service audiological evaluation shows that some of the puretone thresholds had slightly increased, when compared with the results of the March 2001 enlistment examination, indicating improvement in the Veteran's hearing, while some of the other audiological puretone thresholds had decreased. The Board does not possess the medical expertise to determine definitively, based on the evidence noted above, that the Veteran's hearing loss increased during service. There is no post-service medical evidence, VA or private, showing that the Veteran has current hearing loss. Furthermore, unfortunately, as noted above, the Veteran, who is incarcerated, has not been able to attend a VA audiological examination to determine the nature and etiology of any current hearing loss. As such, the Board has no way of determining whether the Veteran actually has current hearing loss for VA compensation purposes, and if so, whether it was aggravated during his active military service. As such, service connection for bilateral hearing loss on the basis of aggravation of a preservice disability is not warranted. See 38 C.F.R. § 3.306. Though the Veteran is competent to report in-service noise exposure and problems with hearing since his discharge, his statements as to whether his preexisting bilateral hearing loss was aggravated during service are not competent evidence, as this finding requires medical expertise. The Veteran has not shown that he has the medical training or experience in medical matters to make such a finding. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the preponderance of the evidence is against the claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C. §§ 1111, 1153; 38 C.F.R. §§ 3.304, 3.306; VAOPGCPREC 3-03, 69 Fed. Reg. 25178; Wagner, 370 F.3d at 1093. As such, the benefit-of-the-doubt rule does not apply, and entitlement to service connection for bilateral hearing loss is not warranted. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Low Back Disability The Veteran contends he has a currently diagnosed low back disability, related to his active military service or in the alternative, secondary to his service-connected bilateral knee disability. A low back disability was not diagnosed until many years after service, and there is no competent evidence to establish that it is due to any event or incident of the Veteran's period of active duty. Service treatment records are negative for any evidence of a back disability. Social Security Administration (SSA) records show that cervical, thoracic and lumbar spines were all non-tender upon examination and no scoliosis was appreciated on examination. VA outpatient treatment records from the VA Medical Center in Oklahoma City show that the Veteran was diagnosed with a low back disability several years after his discharge. Specifically, September 2009 treatment records show a diagnosis of lower back pain and arthritis, 8 years after his discharge. September 2010 records treatment records show an assessment of scoliosis and degenerative joint disease. However, none of these records indicate that the Veteran's diagnosed low back disorders were in any way related to his active military service. With regard to the years-long evidentiary gap in this case between active service and the earliest manifestations of a low back disability, the Board notes that a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board must consider all the evidence, including the availability of medical records, the nature and course of the disease or disability, the amount of time that elapsed since military service, and any other relevant facts in considering a claim for service connection. Id. Unfortunately, as noted above, the Veteran, who is incarcerated, has not been able to attend a VA examination to determine the nature and etiology of any current low back disability. As such, the Board has no way of determining whether the Veteran's currently diagnosed low back disability was incurred or aggravated during service, or whether his current low back disability was caused or aggravated by his service-connected bilateral knee disability. There is no evidence otherwise linking the current low back disability to service or service-connected disability. The presumption of service connection for chronic diseases diagnosed within one year following discharge from active duty is also not applicable to this case because the evidence demonstrates that the Veteran's arthritis was diagnosed more than one year after the Veteran's discharge from service. The Veteran is competent to report the symptoms of his disability, and he has attributed his current low back disability to service or his service-connected bilateral knee disability. However, it would require medical expertise to say that the degenerative joint disease of the low back, identified many years after service, had its onset during or as a result of service, or was caused or aggravated by his service-connected bilateral knee disability. The Veteran, as a layperson, is not qualified to render an opinion concerning the medical cause of his low back disability. 38 C.F.R. § 3.159 (a)(1),(2) (2017); Jandreau, supra. There is no competent evidence relating the Veteran's low back disability to any event in his active service or service-connected disability. Absent such evidence, the Veteran's claim must be denied. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. Legal Criteria for Increased Ratings Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during active military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). Each disability must be considered from the point of view of the veteran working or seeking to work. 38 C.F.R. § 4.2. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2017). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2017). However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Traumatic arthritis is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5010. Pursuant to DC 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, 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 diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, the disability is to be rated as follows: with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, 20 percent; with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, 10 percent. 38 C.F.R. § 4.71a. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40 and 4.45, pertaining to functional impairment. The United States Court of Appeals for Veterans Claims has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997); 38 C.F.R. § 4.59 (2017). Limitation of flexion of a leg warrants a noncompensable evaluation if flexion is limited to 60 degrees, a 10 percent evaluation if flexion is limited to 45 degrees, a 20 percent evaluation if flexion is limited to 30 degrees, or a maximum 30 percent evaluation if flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Limitation of extension of a leg warrants a noncompensable evaluation if extension is limited to 5 degrees, a 10 percent evaluation if extension is limited to 10 degrees, a 20 percent evaluation if extension is limited to 15 degrees, a 30 percent evaluation if extension is limited to 20 degrees, a 40 percent evaluation if extension is limited to 30 degrees, or a maximum 50 percent evaluation if extension is limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. Ankylosis of a knee warrants a 30 percent evaluation if it is at a favorable angle in full extension, or in slight flexion between 0 and 10 degrees. 38 C.F.R. § 4.71a, DC 5256. Knee impairment with recurrent subluxation or lateral instability warrants a 10 percent evaluation if it is slight, a 20 percent evaluation if it is moderate, or a maximum 30 percent evaluation if it is severe. 38 C.F.R. § 4.71a, DC 5257. Dislocated semilunar cartilage, with frequent episodes of "locking," pain, and effusion into the joint will be rated a maximum 20 percent disabling. 38 C.F.R. § 4.71a, DC 5258. Removal of the semilunar cartilage, if symptomatic, will be rated a maximum 10 percent disabling. 38 C.F.R. § 4.71a, DC 5259. DC 5262 provides ratings based on impairment of the tibia and fibula. Malunion of the tibia and fibula with slight knee or ankle disability is rated 10 percent disabling; malunion of the tibia and fibula with moderate knee or ankle disability is rated 20 percent disabling; and malunion of the tibia and fibula with marked knee or ankle disability is rated 30 percent disabling. 38 C.F.R. § 4.71a , DC 5262 (2017). The VA General Counsel has held that a claimant who has arthritis and instability of a knee may be rated separately under DCs 5003 and 5257, while cautioning that any such separate rating must be based on additional disabling symptomatology. VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (July 1, 1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (Aug. 14, 1998). The VA General Counsel also held that separate ratings under 38 C.F.R. § 4.71a, DC 5260 (limitation of flexion of the leg) and DC 5261 (limitation of extension of the leg), may be assigned for disability of the same joint. VAOGCPREC 9-2004 (Sept. 17, 2004). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2017). However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Right and Left Knee Disabilities As noted above, unfortunately, the Veteran, who is incarcerated, has not been able to attend a VA examination to determine the current severity of his service-connected right and left knee disabilities. As such, the Board must decide the appeal based on the evidence of record. The Veteran has consistently reported experiencing chronic right and left knee pain. In addition, he reported weakness, stiffness, swelling, heat, giving way, lack of endurance, locking, fatigability, deformity, tenderness and drainage, on VA examination in August 2010. Examinations have shown pain, tenderness, stiffness, and swelling. However, on objective testing, he demonstrated full range of motion in both knees, even after repetitive use testing. Thus, a review of the record shows no evidence of limitation of right or left knee motion that would even reach a minimum compensable level under DC 5260 and/or DC 5261. Therefore, these DCs do not provide a basis for a rating in excess of 10 percent for the service-connected right or left knee disabilities. Moreover, due to the actual ROM demonstrated, separate evaluations for limited flexion and extension of the right and left knees under DC 5260 and/or DC 5261 are not warranted here, as is permitted by VAOPGCPREC 9-2004. The Board has also considered whether any alternative DCs would allow for a rating in excess of 10 percent for the service-connected right and left knee disabilities. However, ankylosis has not been shown or alleged (DC 5256), there has been no finding of dislocated semilunar cartilage, and no episodes of locking or findings of effusions of the knee (DC 5258), and there is no evidence of recurrent subluxation or lateral instability of the right or left knee (DC 5257) to warrant higher ratings under the rating criteria for those specific impairments. Furthermore, although the Veteran's current ratings are assigned under DC 5262, by analogy, there has been no evidence during the appeal period of nonunion of the tibia and fibula to warrant a higher rating under this DC. See October 2001 rating decision. The Board also finds that a rating in excess of 10 percent is not warranted for the right or left knee at any time during the appeal under DeLuca. Although the Veteran reported chronic knee pain and flare-ups of knee pain as often as 4 times per day, as well as other functional impairment, including trouble walking and moving around on VA examination in 2010; range of motion was normal for both knees, even after repetitive use testing. Furthermore, joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. Moreover, the Veteran reported that he could tolerate his pain with medication. Painful motion can equate to limitation of motion. Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). However, pain alone does not constitute a functional loss under VA regulations that evaluate disability based upon range-of-motion loss. Mitchell v. Shinseki, No. 09-2169 (U.S. Vet. App. Aug. 23, 2011). Furthermore, the Board notes that it is evident that the Veteran's functional impairment was already considered with the assignment of the current 10 percent ratings, which were essentially assigned for pain and tenderness. The Board acknowledges that the August 2010 examiner did not indicate where, if at all, the Veteran experienced pain during range of motion testing. Nevertheless, the Board would have to assume that as ROM was completely normal for both knees in flexion and extension, even with consideration of pain and other functional impairment, range of motion of the left or right knee would not have been reduced enough to warrant a rating in excess of 10 percent under any of the applicable diagnostic codes. Therefore, the Board finds that ratings in excess of 10 percent, based on functional impairment, are also not warranted. 38 C.F.R. §§ 4.40 4.45, and 4.59. Consideration under 38 C.F.R. § 3.321 (b)(1) has not been specifically sought by the Veteran or reasonably raised by the facts found by the Board. As such, there is no basis for extraschedular discussion in this case. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016). TDIU The Court has held that TDIU is an element of all claims for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a Veteran's service-connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2017). TDIU ratings may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a) (2017). However, even when the percentage requirements are not met, entitlement to a total rating, on an extraschedular basis, may nonetheless be granted, in exceptional cases, when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321 (b), 4.16(b). In determining whether an individual is unemployable by reason of service-connected disabilities, consideration must be given to the type of employment for which the Veteran would be qualified. Such consideration would include education and occupational experience. Age may not be considered a factor. 38 C.F.R. § 3.341 (2017). Unemployability associated with advancing age or intercurrent disability may not be used as a basis for assignment of a total disability rating. 38 C.F.R. § 4.19 (2017). For a Veteran to prevail on a total rating claim, the record must reflect some factor which takes his or her case outside of the norm. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1996); 38 C.F.R. §§ 4.1, 4.15 (2017). The sole fact that a Veteran happens to be unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See Van Hoose, supra, at 363; 38 C.F.R. § 4.16 (a). The fact that a Veteran is unemployed is generally insufficient to demonstrate that he is considered "unemployable" within the meaning of pertinent VA laws and regulations. Instead, a longitudinal review of all the evidence is necessary in order to obtain a full understanding of the case. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155 (a) (2017) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Analysis Service connection is currently only in effect for two disabilities-patellofemoral syndrome, left knee with stress fracture medial tibial plateau and patellofemoral syndrome, right knee with stress fracture medial tibial plateau, both evaluated as 10 percent disabling from November 1, 2001. He has a combined rating of 20 percent for the bilateral knee disability, effective November 1, 2001. As noted above, the Board does not find that the Veteran's right or left knee disability warrants a rating in excess of 10 percent. As such, the Veteran does not meet the scheduler criteria for TDIU at any time during the appeal period. Although the Veteran does not meet the schedular criteria for consideration of a TDIU rating, the Board must also consider whether referral for extra-schedular consideration is warranted at any time during the appeal period. As set out above, such consideration is warranted when a Veteran fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16 (a), and when two additional criteria are met. First, it must be shown that the claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities; see 38 C.F.R. § 4.16 (b) (2017). Second, the case must present such an exceptional or unusual disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization, that would render impractical the application of the regular schedular standards; see 38 C.F.R. § 3.321 (2017). In this case, as will now be addressed, neither criterion is met at any time during the appeal period. Therefore, referral of this case to the Director of the VA Compensation and Pension Service for extra-schedular consideration for is not in order. The Veteran submitted a VA Form 21-8940, Application for Increased Compensation Based on Unemployability in August 2010, claiming that he had been unable to work since 2007, due to both knees and his lower back. However, he also noted in his application that he had been studying computer science in State college since January 2010, but he was not sure how it would work out because of his learning disability. He did not indicate that his knees or back would prevent him from finishing school and pursuing a career in computer science. The Veteran, his wife and his mother have all submitted statements in support of his claim, indicating that the Veteran is unable to work due to pain in his knees and back. See July 2010 statements from the Veteran, C.T., the Veteran's wife, and C.L.T., the Veterans' mother. SSA records show that it was determined in August 2010 that the Veteran did not have a severe physical impairment which limits his ability for gainful activity. Therefore, he was denied Social Security disability benefits. The Board also notes that the evidence reflects that the Veteran initiated an application for Vocational Rehabilitation in July 2001, but his application was suspended and his case placed in discontinued status in January 2002 because he did not complete the required evaluation. The Board notes that the evaluation date was prior to the Veteran's incarceration. The Board concludes that the most probative evidence of record weighs against finding that the Veteran's service-connected knee disabilities preclude him from obtaining or engaging in any form of substantially gainful employment. In reaching this conclusion, the Board has considered the Veteran's lay assertions and those of his wife and mother that his service-connected knee disabilities, as well as his low back disability, render him unable to work. However, the Board notes that the Veteran is not currently service-connected for his low back disability. Unfortunately, as noted above, the Veteran, who is incarcerated, has not been able to attend a VA examination to determine the current severity of his service-connected knee disabilities. However, on VA examination in August 2010, the Veteran had full range of motion in both knees and there was no evidence of functional impairment, in the form of pain, fatigue, weakness, lack of endurance or incoordination. Furthermore, the Veteran reported during the examination that he could function at the time of pain in the knees with medication. The examiner concluded that the Veteran should avoid strenuous activities in his occupation, but he did not opine that the Veteran was unable to maintain any form of gainful employment due to his knee disabilities. There is no other evidence of record showing that the bilateral knee disability has negatively affected the Veteran's ability to maintain gainful employment. Moreover, the Board recognizes that the Veteran is competent to describe the symptoms and associated limitations of his disabilities. However, there is no evidence of record showing that the Veteran was ever terminated from or denied employment due to his service-connected knee disabilities. Accordingly, the Board finds that the preponderance of the evidence is against granting a TDIU at any time during the appeal period, and that referral for consideration of entitlement to TDIU on an extraschedular basis is also not required. ORDER Service connection for bilateral hearing loss is denied. Service connection for a low back disability is denied. A rating in excess of 10 percent for patellofemoral syndrome of the right knee, with stress fracture of the medial tibial plateau, is denied. A rating in excess of 10 percent for patellofemoral syndrome of the left knee, with stress fracture of the medial tibial plateau, is denied. Entitlement to TDIU is denied. ____________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs