Citation Nr: 0006150 Decision Date: 03/08/00 Archive Date: 03/17/00 DOCKET NO. 97-20 874 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE 1. Entitlement to an increased rating for chondromalacia patella of the left knee, currently evaluated as 10 percent disabling. 2. Entitlement to an increased rating for chondromalacia patella of the right knee, currently evaluated as 10 percent disabling. 3. Entitlement to an increased (compensable) rating for sinusitis. 4. Entitlement to an increased (compensable) rating for the residuals of an injury of the right thigh, with sensory nerve damage. 5. Entitlement to a total rating by reason of individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Richard A. LaPointe, attorney at law INTRODUCTION The veteran had active military service from September 1965 to September 1968, from March 1970 to October 1975, and from April 1977 to September 1988. This case comes to the Board of Veterans' Appeals (Board) on appeal from a March 1997 rating decision of the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA). This case has been returned following remand by the Board in September 1998. FINDINGS OF FACTS 1. The chondromalacia of the left knee is manifested by pain, crepitus, and degenerative arthritis but there is no ligamentous laxity and not more than slight limitation of motion. 2. The chondromalacia of the right knee is manifested by pain, crepitus, and degenerative arthritis but there is no ligamentous laxity and not more than slight limitation of motion. 3. The sinusitis is manifested by nasal injection, discharge, and crusting but there are no incapacitating episodes of sinusitis. 4. The residual nerve impairment from inservice injury of the right thigh involves the external cutaneous nerve and is wholly sensory. 5. The veteran's service-connected disabilities have not required hospitalization and do not cause marked interference with employment or otherwise present an exceptional or unusual disability picture. 6. The veteran's service-connected disabilities are chondromalacia patella of the left knee, rated 10 percent disabling; chondromalacia patella of the right knee, rated 10 percent disabling; and noncompensable ratings are assigned for sinusitis and for residuals of an injury of the right thigh, with sensory nerve damage. These result in a combined disability evaluation of 20 percent. 7. The veteran has at least four years of high school education and has work experience as a letter carrier with the U.S. Post Office from which he was medically retired following a postservice vehicular accident in 1995. 8. The medical evidence demonstrates that the veteran is unemployable due to nonservice-connected psychiatric disability and residuals of injuries sustained in a postservice vehicular accident in 1995 and that the service- connected disabilities, standing alone, are not of such severity as to preclude the veteran from substantially gainful employment. CONCLUSIONS OF LAW 1. An evaluation in excess of 10 percent for chondromalacia patella of the left knee is not warranted on a schedular or extraschedular basis. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.2, 4.7, 4.10, 4.21, 4.40, 4.41, 4.45, 4.59, Diagnostic Code 5257 (1999). 2. An evaluation in excess of 10 percent for chondromalacia patella of the right knee is not warranted on a schedular or extraschedular basis. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.2, 4.7, 4.10, 4.21, 4.40, 4.41, 4.45, 4.59, Diagnostic Code 5257 (1999). 3. A compensable evaluation for sinusitis is not warranted on a schedular or extraschedular basis. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.2, 4.7, 4.10, 4.21, Diagnostic Code 6510 (1999). 4. A compensable evaluation for residuals of an injury of the right thigh, with sensory nerve damage is not warranted on a schedular or extraschedular basis. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.2, 4.7, 4.10, 4.21, Diagnostic Code 8529 (1999). 5. The criteria for the assignment of a total disability rating based on individual unemployability are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.340, 3.341, 4.16 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The claims are plausible and thus "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), which mandates a duty to assist in developing all pertinent evidence. Moreover, "where [] the remand orders of the Board or this Court are not complied with, the Board itself errs in failing to insure compliance." Stegall v. West, 11 Vet. App. 268, 271 (1998). The veteran has failed to report for the three most recently scheduled VA examinations for rating purposes, i.e., examinations in February 1997, April 1998, and December 1998. While this has been noted in the statement of the case (SOC) and supplemental SOCs (SSOCs) no explanation has been provided as to this failure, despite the fact that he and his attorney were notified of the failure to appear at these examinations. Moreover, the information requested by the RO in October 1998 and June 1999 RO letters (sent to the veteran and his attorney) was not provided. While the attorney has requested that a Social and Industrial Survey, a Social Worker was unable to make such arrangements. Also, the attorney has requested an expert vocational opinion as to whether the service-connected disabilities alone preclude employment but he offered no explanation, rationale or reasons why such an opinion was necessary. The duty to assist is not a one-way street. When necessary or requested the veteran must cooperate with the VA in obtaining evidence. If a veteran wishes help, he cannot passively wait for it in circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (reconsideration denied, 1 Vet. App. 406 (1991)). This is particularly true where "[t]he factual data required, i.e., names, dates and places, are straightforward facts and do not place an impossible or onerous task on appellant." Wood, at 193 It is the determination of the Board that the all reasonable attempts have been made to meet the request of the 1998 remand and that the duty to assist has also been met. It is the determination of the Board that the evidentiary record is sufficient both in scope and in depth for a fair, impartial, and fully informed appellate decision. Background On VA examination in 1988 the veteran reported having had numbness and tingling of the lateral aspect of the right thigh since blunt trauma to the right thigh in 1979. On examination he had decreased sensation to light touch in the distribution of the right lateral femoral cutaneous nerve. Tinel's sign was absent, bilaterally. Deep tendon reflexes were 1+, bilaterally, and symmetric throughout. VA X-rays of the veteran's knees in October 1991 revealed mild degenerative changes in both knees. In September 1995 Dr. DeHaven reported that he had treated the veteran since a February 1995 motor vehicular accident (MVA) in which the veteran sustained multiple injuries, including a significant left thigh injury with femoral fracture, fracture of the right styloid, dislocation of the right radial-ulnar joint of the wrist, interarticular fractures of the hands, and a fracture of the left foot. His left thigh and hands were treated with operative fixation and he now had an intramedullary nail at the healed left femur fracture site. He had significant left knee pain which had been aggravated by this new trauma. He had significant crepitus in the knee but maintained full motion. The physician felt that the veteran's disability rating for the left knee should be increased. On VA orthopedic examination in December 1995 the veteran reported that he had sustained a comminuted left femoral fracture in an MVA in February 1995 for which he underwent an open reduction and fixation with a rod. He also sustained fractures of the left foot and hand, right wrist and forearm, and ribs on the left side with pneumothorax. He felt that residual problems from these injuries had exacerbated his problem with his knees. He complained of constant bilateral knee pain which he reported was due to placing additional stress on his knees when walking as a result of the left femoral fracture. He was in the process of obtaining a medical retirement from the U.S. Post Office. He took medication for pain and for psychiatric disability. On examination the veteran carried a cane in his right hand to keep pressure off of his left lower extremity. He had slight swelling of the left knee. His left lower extremity was one inch shorter than the right and was externally rotated by 30 degrees. There was no evidence of joint instability. Flexion of each knee was to 120 degrees and extension was full to zero degrees. His collateral and cruciate ligaments appeared intact. There was no clinical evidence of a menisceal injury. X-rays of the left femur revealed an intramedullary nail and transfixation of the distal femoral shaft. X-rays of his knees revealed post surgical changes of the left distal femur with arthritic changes of the left knee. On VA examination in December 1995 of the veteran's sinuses he reported that the onset of his sinus problems was in the 1970's. He had headaches and congestion. He took decongestants and, intermittently, antibiotics. His problem was generally chronic and, basically, was present continuously and did not appear to be related to seasonal changes. He reported that it had progressively worsened since service. He complained of having extremely dry nasal mucosa and having recurrent episodes of epistaxis. He had rhinorrhea and colored nasal discharge in the morning. He had congestion and headaches. He took decongestants on a regular basis. On examination his nose and nasal vestibule were normal. His septum was not deviated. The floor of his nose, the inferior meatus, and inferior turbinates were all injected and congested. He had no percussion tenderness over the sinus areas. X-rays revealed his paranasal sinuses were well aerated throughout and there was no evidence of intrasinus fluid or mucosal thickening. The impression was that the X-rays were normal. The final diagnosis, after examination, was a history of chronic sinusitis. On file is a summary of the veteran's VA outpatient treatment (VAOPT) from 1996 to 1999, listing dates of his treatment. Many of these appointments were at a mental health clinic. A VAOPT record of December 1995 reflects that he took medication for pain and over-the-counter medication for his sinuses. He complained of a history of bilateral knee pain, his sinuses, and depression. He had scaly nasal mucosa, headaches, green-yellow nasal discharge, as well as chronic nasal congestion. On examination his nasal mucosa was slightly congested and there was slight tenderness to tapping over his frontal and maxillary sinus areas. The impressions were chronic knee pain with a history of chondromalacia and a history of chronic allergic rhinitis; chronic sinusitis was to be ruled out. A May 1996 computerized tomogram of the head revealed a linear fracture at the left occipital bone. The veteran underwent VA hospitalization from May to August 1996. Because of acting out behavior, his family had him admitted on a commitment status. His family reported that he had been unable to function over the last few years and he was described as being very violent and assaultive toward his son. He had refused to eat because he thought that people were trying to poison him. He refused to take his medications. He was easily irritated and hyperactive. He had sustained a head injury and other injuries in a recent vehicular accident and had received physical therapy for the injuries. On mental status examination he was easily circumstantial and tangential. He exhibited some suspiciousness, some depression, and had a history of mood swings. His insight and judgment were impaired. At discharge he was incompetent to handle funds and he was considered unemployable. The discharge diagnoses were organic affective disorder with depression, anemia of undetermined etiology, osteoarthritis of the spine and knees, and chronic periodontitis. A July 1996 skull X-ray revealed the veteran's visualized paranasal sinuses were within normal limits. On file is documentation indicating that the veteran underwent VA hospitalization in December 1996 for an organic mental disorder, although clinical records of that hospitalization are not of file. The veteran underwent VA hospitalization in February 1997. He was admitted because of an argument with his son. He was given psychotropic medication and when discharged was considered competent. The discharge diagnoses were a bipolar disorder and, by history, organic brain syndrome. The June 1997 SOC (and another documents) reflects that the veteran failed to attend a VA examination scheduled in February 1997. In VA Form 21-9840, Application for Increased Compensation Based on Individual Unemployability, received in July 1997, the veteran reported that his disability had affected his full time employment, he had become too disabled to work, and last worked on a full time basis in 1994 and he also reported that he had retired in that year. His occupational experience had been as a letter carrier for the U.S. Post Office. He had not tried to obtain employment since he had become too disabled to work. He had four years of high school education. The veteran underwent VA hospitalization in October 1997. It was noted that he had been sent to a group home in February 1997 on a court commitment status. He was admitted now on court commitment because of arguments and fights with his son as well as destructive and controllable behavior. He was given psychotropic medication and when discharged was considered competent. The discharge diagnosis was a bipolar disorder. His global assessment of functioning score (GAF) at admission was 40 and at discharge it was 50. On file are documents in November 1997 which reflect that a conservatorship was arranged in the veteran's behalf. In February 1998 the RO proposed to rate the veteran as incompetent but this proposed rating action was withdrawn in May 1998. A May 1998 SSOC, sent to the veteran and his attorney, reflects that a Social Worker was unable to contact the veteran to arrange for a Social and Industrial Survey. In VA Form 21-9840, Application for Increased Compensation Based on Individual Unemployability, received in February 1998, the veteran reported that his disability had affected his full time employment, he had become too disabled to work, and last worked on a full time basis in February 1995. His occupational experience had been as a letter carrier for the U.S. Post Office and it was indicated that he had retired from that employment due to his knees. He had not tried to obtain employment since he had become too disabled to work. He had one year of college education. In a letter from the veteran's attorney, attached to VA Form 21-8940, it was reported that the veteran was claiming a total rating due to individual unemployability and application of 38 C.F.R. § 4.16(b) (extraschedular consideration) was requested. It was also indicated that he was seeking increased schedular and extraschedular ratings for each service-connected condition. It was indicated that the rating schedule was inadequate because the service- connected disorder produced impaired earning capacity beyond that reflected and addressed in the rating schedule. Medical and vocational opinions concerning this matter were requested. It was also requested that rating examinations be conducted, that an expert vocational opinion be obtained, that a Social and Industrial Survey be conducted, and that all VA records be obtained. Information received in February 1998 reflects that for most of the last two years of his employment with the U.S. Post Office he had been on limited duty and "OWCP." He finally retired in October 1995 on disability due to injuries sustained in a vehicular accident in which his wife had been killed. As noted in the May 1998 SSOC and September 1998 Board remand (and as reflected in another document) the veteran failed to appear for a VA examination scheduled in April 1998. In a June 1999 letter the RO requested that the veteran respond to the prior RO letter of October 1998 requesting that he specify where he had received treatment for his service-connected disabilities and to execute and return necessary authorization forms for release of those records as well as provide the complete name and address of Dr. DeHaven. In the June 1999 RO letter the veteran was requested to execute and return the necessary authorization forms for release of records from each medical care provider. In the June 1999 letter the veteran was requested to state whether he was willing to report for an examination and, if so, one would be arranged. Failure to report could result in termination or reduction of benefits and could mean that information needed to make a decision on his claim might not be available and, thus, impact on the final decision. Copies of the October 1998 and June 1999 letters were forwarded to the veteran's attorney. An SSOC dated in September 1999 and mailed to the veteran and his attorney in October 1999 reflects that the veteran failed to report for a VA examination scheduled on December 5, 1998. In October 1999 Dr. Gabrielson reported that the veteran continued to have chondromalacia of each knee. He also had a history of recurrent sinusitis but no current symptoms. He had described his prior thigh injury with sensory changes and had some hypoesthesia in the right anterolateral thigh. Due to knee pain, he currently used a cane as an ambulatory aid. Law and Regulations Disability evaluations are determined by use of a schedule of ratings and are based on average impairment of earning capacity. Separate Diagnostic Codes (DCs) identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. All potentially applicable regulations must be applied, Schafrath v. Derwinski, 1 Vet. App. 589 (1991), including 38 C.F.R. §§ 4.1, 4.2, and 4.10 which require that the entire recorded history be reviewed with an emphasis on the effects, particularly, limitation of ordinary activity and lack of usefulness. Not all disabilities will show all the findings specified in the rating criteria but coordination of the rating with functional impairment is required. 38 C.F.R. § 4.21. The higher of two evaluations will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Consideration may not be given to factors wholly outside the rating criteria provided by regulation. Massey v. Brown, 7 Vet. App. 204, 208 (1994) (citing Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992)). The present disability level is the primary concern and past medical reports do not take precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). However, this is not applicable in an appeal from a rating assigned by an initial grant of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). Also, the most recent examination is not necessarily and always controlling; rather, consideration is given not only to the evidence as a whole but to both the recency and adequacy of examinations. Powell v. West, 13 Vet. App. 31, 35 (1999). Degenerative arthritis, and traumatic arthritis and bursitis which are rated as degenerative arthritis under 38 C.F.R. § 4.71a, DC's 5010 and 5019, requires consideration of 38 C.F.R. §§ 4.40, 4.45, and 4.59. Also, functional loss and the impact of pain upon the disability must be considered. VAOGCPREC 9-98. Under 38 C.F.R. § 4.71(a) DC 5003, if degenerative arthritis is established by X-rays, compensation may be awarded under three circumstances: (1) when limitation of motion meets the schedular criteria for the joint(s) affected and is objectively confirmed, such as by swelling, muscle spasm, or satisfactory evidence of painful motion; (2) when objectively confirmed limitation of motion is not sufficient to warrant a compensable schedular evaluation, 10 percent is assigned for each major joint or minor joint group affected; (3) when there is no limitation of motion, 10 or 20 percent will be assigned depending on the degree of incapacity, if there is X-ray evidence of 2 or more major joints or minor joint groups. Hicks v. Brown, 8 Vet. App. 417, 420 (1995). 38 C.F.R. § 4.59 notes that muscle spasm helps identify arthritic joints and crepitation on flexion identifies diseased points of contact and together with DC 5003 deems painful motion from X-ray documented arthritis to be limited motion, even without actually limited motion and even though motion is possible beyond where pain sets in, and warrants a minimum 10 percent rating for each joint affected. Hicks v. Brown, 8 Vet. App. 417, 420-21 (1995) (citing Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991) and Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991)). Under 38 C.F.R. §§ 4.40 and 4.45 functional loss of joints, arthritic or otherwise, may be due either to pain on use or limitation of motion and in either event warrants at least the minimum rating but it must be supported by adequate pathology and evidenced by visible behavior on motion because ratings based on limited motion do not ipso facto include or subsume the other rating factors in §§ 4.40 and 4.45, e.g., pain, functional loss, fatigability, and weakness. Thus, an evaluation in excess of that provided for by simple limitation of motion may be assigned, without pyramiding under 38 C.F.R. § 4.14, because there may be additional disability in excess of limitation of motion as a result of pain or pain on repeated use of a joint. Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991); Hicks v. Brown, 8 Vet. App. 417, 420-21 (1995); and DeLuca v. Brown, 8 Vet. App. 202, 204-08 (1995). In other words, when rating for limitation of motion, a higher rating may be assigned if there is additional limitation of motion from pain or limited motion on repeated use of the joint. Normal range of motion of a knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Evaluations for limitation of flexion of a knee are assigned as follows: flexion limited to 60 degrees is zero percent; flexion limited to 45 degrees is 10 percent; flexion limited to 30 degrees is 20 percent; and flexion limited to 15 degrees is 30 percent. 38 C.F.R. § 4.71a, DC 5260. Evaluations for limitation of extension of the knee are assigned as follows: extension limited to five degrees is zero percent; extension limited to ten degrees is ten percent; extension limited to 15 degrees is 20 percent; extension limited to 20 degrees is 30 percent; extension limited to 30 degrees is 40 percent; and extension limited to 45 degrees is 50 percent. 38 C.F.R. 38 C.F.R. § 4.71a, DC 5261. The record reflects that the veteran is service-connected for knee disability that has been evaluated under the criteria of 38 C.F.R. § 4.71a, DC 5257. In addition, the Board will consider the diagnostic criteria of 38 C.F.R. § 4.71a, DCs 5256, 5258, 5260, and 5261 for evaluating the knee impairment. Where there is recurrent subluxation, lateral instability, or other impairment of a knee, a 10 percent evaluation may be assigned where the disability is slight; a 20 percent evaluation will be assigned for moderate disability; and 30 percent for severe disability. 38 C.F.R. 38 C.F.R. § 4.71a, DC 5257. Under 38 C.F.R. § 4.71a, DC 5258, a 20 percent evaluation, the highest and only rating available under that schedular provision, may be assigned where there is evidence of dislocated cartilage, with frequent episodes of "locking," pain, and effusion into the knee joint. 38 C.F.R. § 4.71a, DC 5256 provides that a 30 percent evaluation is warranted when the knee is ankylosed in a favorable angle in full extension, or in slight flexion between zero degrees and 10 degrees. 38 C.F.R. § 4.71a, DC 5003 provides for rating of arthritis of the knee on the basis of limitation of motion and not instability; whereas, DC 5257 provides for rating of instability of a knee without consideration of limitation of motion. Thus, separate ratings for arthritis of a knee, when there is actual limitation of motion, and for instability of the knee may be assigned without pyramiding, which is prohibited by 38 C.F.R. § 4.14. VAOGCPREC 23-97. In Johnson v. Brown, 9 Vet. App. 7, 11 (1996) it was held that a rating for subluxation of a knee under 38 C.F.R. § 4.71a, DC 5257 was not "predicated on loss of range of motion, and thus [38 C.F.R.] §§ 4.40 and 4.45, with respect to pain, do not apply." However, in VAOGCPREC 9-98 it was held that for a knee disability rated under DC 5257 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under DC 5260 or DC 5261 need not be compensable but must at least meet the criteria for a zero-percent rating. A separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. In other words, a compensable degree of limited motion under DCs 5260 and 5261 need not be shown; rather, a compensable rating may be granted, in addition to a rating for instability under DC 5257, if there is X-ray evidence of arthritis and also painful motion under 38 C.F.R. § 4.59. Under the rating criteria which became effective October 7, 1996, sinusitis (whether pansinusitis, ethmoid sinusitis, frontal sinusitis, maxillary sinusitis, or sphenoid sinusitis) is rated under a general rating formula. See 38 C.F.R. § 4.97, DCs 6510 through 6514 (1999). When detected by X-ray only, a noncompensable rating will be assigned. A 10 percent rating is warranted when there are one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. The note to the general rating formula for sinusitis provides that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. Under 38 C.F.R. § 4.124, DC 8529 (1999) paralysis of the external cutaneous nerve of the thigh warrants a noncompensable rating when mild to moderate and a 10 percent rating when the paralysis is severe to complete. Total disability ratings for compensation based on individual unemployability may be assigned when the combined schedular rating for the service-connected disabilities is less than 100 percent and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, or if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. The veteran's employment history, educational and vocational attainment as well as his particular physical disabilities are to be considered in making a determination on unemployability, but not his age. 38 C.F.R. §§ 3.340, 3.341, 4.16(a), 4.18, 4.19. The existence or degree of nonservice-connected disability or disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and it is determined that the service- connected disabilities render the veteran unemployable. Marginal employment shall not be considered to be substantially gainful employment, and may be held to exist, on a facts found basis (including but not limited to employment in a protected environment such as a family business or sheltered workshop) when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). When the criteria of 38 C.F.R. § 4.16(a) are met, the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded when the service-connected disability(ies) render a veteran unemployable. However, a total service-connected disability rating based on individual unemployability may be granted even though the disability rating does not meet the schedular criteria if the veteran's disabilities, in light of his education and occupational background, preclude him from securing and following a substantially gainful occupation. 38 C.F.R. §§ 3.340, 3.341, 4.16(b). In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993) it was held that the central inquiry in determining whether a veteran is entitled to a total rating based on individual unemployability is whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Further, in a pertinent precedent decision, the VA Office of General Counsel concluded that the term unemployability, as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. VAOGCPREC 75-91, 57 Fed.Reg. 2317 (1992). With amputations, sequelae of fractures and other residuals of traumatism shown to be of static character, a showing of continuous unemployability from date of incurrence, or the date the condition reached the stabilized level, is a general requirement in order to establish the fact that present unemployability is the result of the disability. However, consideration is to be given to the circumstances of employment in individual claims, and, if the employment was only occasional, intermittent, tryout or unsuccessful, or eventually terminated on account of the disability, present unemployability may be attributed to the static disability. 38 C.F.R. § 4.18 (1999). When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case that claim is denied. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102; Gilbert v. Derwinski 1 Vet. App. 49 (1990). Analysis Chondromalacia patella of the Left Knee The veteran has alleged and a private physician has stated that the veteran's service-connected left knee disorder has increased in severity since his post service vehicular accident in February 1995. However, the private physician provided no clinical findings upon which to base that conclusion. Even if it is true that there has been an increase in severity, there is no clinical evidence of a compensable degree of limitation of motion, despite X-ray findings of left knee arthritis, or of ligamentous laxity or instability. The veteran now uses a cane in his right had to keep weight off of the left lower extremity. A private physician has reported that the cane is used due to knee pain, although the Board notes that the veteran only began using a cane after the postservice left femoral fracture. In this regard, the shortening of the left lower extremity is also shown only since the February 1995 injury and the VA examination in December 1995 revealed only slight knee swelling and slight limitation of motion. The Board acknowledges that the veteran takes medication for left knee pain and that the veteran's knee pain may now be greater than prior to the February 1995 accident. However, the evaluation to be assigned is not governed solely by allegations of increased pain or disability but must be supported by objective clinical findings in order to warrant an increased rating. Such is not the case here. Moreover, attempts to further investigate the impact of his pain upon knee function have been frustrated by his not attending scheduled VA examinations. Chondromalacia patella of the Right Knee The veteran has reported that the service-connected disability of each knee has increased in severity since the 1995 vehicular injury. However, while he has arthritic changes in the right knee, there is no objective clinical evidence of more than slight limitation of motion and no clinical evidence of laxity in the right knee. As noted above, the allegations of increased disability must be supported by objective clinical findings in order to warrant an increased rating and such is not the case here. Again, attempts to further investigate the impact of his pain upon knee function have been frustrated by his not attending scheduled VA examinations. Sinusitis While there is some clinical evidence of nasal injection, discharge, and congestion as well as some tenderness over the sinus areas, the evidence does not establish that the veteran has any incapacitating episodes of sinusitis, as required for a compensable evaluation. Moreover, the most recent X-rays also disclose no signs of sinusitis. Indeed, the recent statement of a private physician indicates that he has no current symptoms; rather, he has only a history of symptoms. Right Thigh The only residual of an inservice blunt trauma of the right thigh is the decreased sensation to light touch in the distribution of the right femoral cutaneous nerve and the subjective complaints of numbness and tingling. In this regard, a note to 38 C.F.R. § 4.124 provides that when neurological involvement is wholly sensory, the rating should be for the mild, or at most, moderate degree of impairment. In this case, only sensory involvement is shown and both the mild and the moderate degree of paralysis of the external cutaneous nerve of the thigh warrant a noncompensable rating. Total Rating In this case, the veteran's service-connected disabilities result in a combined rating of only 20 percent and do not met the schedular requirements for the assignment of a total service-connected disability rating based upon individual unemployability. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16. The severity of the veteran's only service-connected disabilities has been discussed above. The combined 20 percent disability evaluation only reflects some but not significant impairment with respect to obtaining and retaining substantially gainful employment. While the veteran's VA Form 21-8940 in 1997 indicated that he had last worked in 1994, his VA Form 21-8940 in 1998 reflects that it was in 1995 and information from his former employer specifically states that he was medically retired from the U.S. Post Office due to injuries sustained in a February 1995 post service vehicular accident. Additionally, the veteran has nonservice-connected psychiatric disability which has required hospitalization on several occasions in recent years. Indeed, the sole medical opinion that he is unemployable was based on findings during a period of VA psychiatric hospitalization. Thus, the Board acknowledges that he is precluded from substantially gainful employment due to the nonservice-connected psychiatric disability and residuals of the 1995 vehicular accident, even if combined with the service-connected disabilities. However, the focus of the Board's determination must be whether the service-connected disabilities standing alone, and exclusive of the veteran's obviously severe nonservice- connected disabilities, would preclude substantially gainful employment. Here, there is no more than slight or mild impairment of each knee and no more that mild, or at most, moderate impairment of the right external cutaneous nerve. Also, the sinusitis is not productive of incapacitating episodes. Overall, the evidence does not establish that the veteran's service-connected disabilities standing alone preclude substantially gainful employment and, thus, a total disability rating based on individual unemployability due to service-connected disabilities is not warranted. Extraschedular Consideration In reaching this decision consideration has been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board finds that there are no exceptional or unusual circumstances for the assignment of an extraschedular evaluation because there has been no showing of marked interference with employment or that frequent periods of hospitalization have been necessitated. It is not shown, as contended, that there is impairment of earning capacity resulting from the service- connected disorders which is not contemplated in the rating schedule. Indeed, no specific argument is submitted in support of this contention. There are also no other circumstances which otherwise "render[s] impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). Hence, RO referral of the case for extraschedular rating, was not required. See Bagwell v. Brown, 9 Vet. App. 337 (1996). Brannon v. West, 12 Vet. App. 32, 35 (1998) (while the Board does not have authority to grant an increased rating based on extraschedular criteria in the first instance, Floyd v. Brown, 9 Vet. App. 88, 95 (1996), it has authority to review whether a claim merits submission for extraschedular evaluation even if not initially considered by the VARO). There is also nothing outside of the norm which would have warranted RO referral of the case for consideration of extraschedular entitlement to a total rating. In this case, for the foregoing reasons and bases, the preponderance of the evidence is against the claims and, thus, there is no doubt to be resolved in favor of the veteran. ORDER The claims for increased rating for chondromalacia patella of the left knee and for chondromalacia patella of the right knee are denied. The claims for compensable ratings for sinusitis and for residuals of an injury of the right thigh, with sensory nerve damage are denied. The claim for a total rating based on individual unemployability due to service-connected disability is denied. JOHN FUSSELL Acting Member, Board of Veterans' Appeals