Citation Nr: 0812999 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 96-47 768 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a left knee disorder. 2. Entitlement to service connection for a left shoulder disorder. 3. Entitlement to service connection for a chronic disability manifested by low back pain. 4. Entitlement to service connection for Klinefelter's Syndrome. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). ATTORNEY FOR THE BOARD Mark Vichich, Associate Counsel INTRODUCTION The veteran served on active duty from December 1986 to December 1995. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of August 1996 and March 2000 of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The RO denied the service- connection claims in the rating decision of August 1996 and the TDIU claim in the March 2000 rating decision. The Board previously denied all five issues on appeal in a decision dated in February 2003. Pursuant to a joint motion to remand, the Court of Appeals for Veterans Claims (Court) vacated the Board's decision in an Order dated in February 2004. The Court remanded the case to the Board for readjudication consistent with the joint motion. In September 2004, the Board remanded the case to the agency of original jurisdiction (AOJ) for further development. The case has been returned to the Board for readjudication. In a letter dated in March 2004, the Board notified the veteran that VA had revoked the authority of his attorney to represent claimants, effective July 28, 2003. The Board notified the veteran of his options in obtaining a representative and requested a response within 30 days. The veteran did not respond to this notice or otherwise inform VA of his intent to acquire representation. The Board concludes he wishes to remain unrepresented. FINDINGS OF FACT 1. The record does not contain any competent medical evidence that the veteran has a current diagnosis of a left knee disability. 2. The record does not contain any competent medical evidence that the veteran has a current diagnosis of a left shoulder disorder. 3. The competent medical evidence does not link a chronic disability manifested by low back pain to an event in active duty service and there is no credible evidence of continuous symptomatology to an in-service event. 4. The competent medical evidence establishes that the veteran's Klinefelter's Syndrome is a congenital defect that pre-existed service and was not aggravated in service. 5. The veteran's overall combined disability rating is 50 percent. 6. The evidence does not show the veteran is incapable of performing the physical and mental acts required by employment by reason of service-connected disability. CONCLUSIONS OF LAW 1. A left knee disorder was not incurred or aggravated during active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R § 3.303 (2007). 2. A left shoulder disorder was not incurred or aggravated during active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R § 3.303 (2007). 3. A chronic disability manifested by low back pain was not incurred or aggravated during active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R § 3.303 (2007). 4. Klinefelter's Syndrome was not incurred or aggravated during service. 38 U.S.C.A. §§ 1110, 1111, 1131, 1153 (West 2002); 38 C.F.R §§ 3.303, 3.306 (2007). 5. The criteria for a total disability rating based on individual unemployability due to service-connected disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, and 4.16 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA with respect to its duty to notify and assist a claimant in developing a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007). Under the VCAA, upon receipt of a complete or substantially complete application for benefits, VA is required to notify the veteran and his representative, if any, of any information and medical or lay evidence necessary to substantiate the claim. The United States Court of Appeals for Veterans Claims (hereinafter the Court) has held that these notice requirements apply to all five elements of a service connection claim, which include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA law and regulations also indicate that part of notifying a claimant of what is needed to substantiate a claim includes notification as to what information and evidence VA will seek to provide and what evidence the claimant is expected to provide. Further, VA must ask the claimant to provide any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159(a)-(c) (2007). VCAA notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The duty to assist requires that VA obtain relevant records from any federal agency (e.g. VA hospitals, Social Security Administration, etc.) and make reasonable efforts to obtain records from non-federal agencies. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159(a)-(c) (2007). The veteran must provide enough information to identify and locate the existing records, including the person, company, agency, or other custodian holding the records; the approximate time frame covered by the records; and, in the case of medical treatment records, the condition for which treatment was provided. Id. VA is not required to provide assistance in obtaining evidence if no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a)(2) (West 2002). VA must make as many requests as are necessary to obtain relevant records from a federal department or agency. These records include, but are not limited to, records from the Social Security Administration (SSA). VA will end its efforts to obtain records from a federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile. Cases in which VA may conclude that no further efforts are required include those in which the federal department or agency advises VA that the requested records do not exist or the custodian of the records does not have them. 38 U.S.C.A. § 5103A(b) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(c)(2) (2007). If VA, after continued efforts to obtain federal records concludes that it is reasonably certain they do not exist or further efforts to obtain them would be futile, VA will provide the claimant with oral or written notice of that fact. Such notice must contain the following: (i) The identity of the records VA was unable to obtain; (ii) An explanation of the efforts VA made to obtain the records; (iii) A description of any further action VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the claimant submits the records VA was unable to obtain; and (iv) A notice that the claimant is ultimately responsible for providing the evidence. 38 C.F.R. § 3.159(e) (2007). Duty to Notify The AOJ, via the Appeals Management Center (AMC), provided notice to the veteran in letters dated in October 2004, December 2005, and June 2007. In the October 2004 correspondence, the AMC advised the veteran of what the evidence must show to establish entitlement to service connection and for a TDIU. The AMC advised the veteran of VA's duties under the VCAA and the delegation of responsibility between VA and the veteran in procuring the evidence relevant to the claims, including which portion of the information and evidence necessary to substantiate the claims was to be provided by the veteran and which portion VA would attempt to obtain on behalf of the veteran. Specifically, the AMC informed the veteran that VA was responsible for obtaining records from any federal agency, such as the Social Security Administration (SSA). The AMC also specifically requested that the veteran send any evidence in his possession that pertained to the claims. The AMC also notified the veteran that it had requested copies of his disability medical records from SSA and that it may take several months to receive a response. The veteran failed to respond to this notice. The AMC again provided notice to the veteran with respect to all five issues currently on appeal in correspondence dated in December 2005. The AMC included much of the same information as in the previous letter and also informed the veteran that it had made a third request for copies of his disability medical records from SSA. The AMC informed the veteran that his help in getting this evidence would speed processing of his claim. Finally, the AMC included a VCAA Notice Response and informed the veteran that although he was not required to return that document, his response might expedite a decision on his claim. The veteran failed to respond to this notice. A review of the record fails to show that the AOJ notified the veteran of the degree of disability and effective date elements of a service connection claim. See Dingess/Hartman, 19 Vet. App. at 473. For reasons discussed more fully below, the Board concludes that the preponderance of the evidence is against the appellant's claims for service connection and for a TDIU. Thus, no disability ratings or effective dates will be assigned and failure to notify the veteran of these elements has resulted in no prejudice. See Sanders v. Nicholson, 487 F.3d 881, 891 (Fed. Cir. 2007) (holding that VCAA notice errors are presumed to be prejudicial and it is VA's duty to rebut the presumption). The Board finds that through these correspondences, the AOJ has provided VCAA compliant notice to the veteran. Although the AOJ did not provide fully compliant notice until after initial adjudication of the claim, it readjudicated the claim and issued a supplemental statement of the case in November 2007. The issuance of such notice followed by a readjudication of the claim remedied any timing defect with respect to issuance of compliant notice. See Prickett v. Nicholson, 20 Vet. App. 370, 376-77 (2006). Duty to Assist and Court Remand Regarding VA's duty to assist, the RO has obtained the veteran's service medical records and all available and pertinent VAMC records. The RO requested records from VAMC Hines from 1995 to present. VAMC Hines responded in March 1998 that the veteran had no records in their system. The RO also requested psychiatric records from VAMC Crownpoint. In response, the RO received a progress note, dated in February 1997, indicating that veteran's case had been closed because he had failed to report. The RO obtained VAMC treatment records from VAMC Westside Chicago, dated from 1996 to March 1998. The AOJ has also obtained the veteran's Vocational and Rehabilitation Employment (VR&E) file in satisfaction of the Board and the Court's remands. The claims file includes a number of entries pertaining to the acquisition of Social Security Disability records. The acquisition of these records was the subject of the Court's previous remand. The search for such records can be traced back to August 1997, when the veteran's attorney submitted a ten-page document, which included a number of non-specific requests for evidence. Among these were requests for VA examinations; a current Social and Industrial Survey; vocational rehabilitation records, if any; and earnings records by year and employer from the SSA, specifically the veteran's Detailed Earnings Query (DEQY) report. A deferred rating decision of January 1998 showed that the RO considered the attorney to have inferred in the August 1997 correspondence that the veteran had filed a disability claim with SSA. In response to this inference, the RO requested from SSA in February 1998 "records used to determine the claimant's entitlement to Social Security benefits including the Administrative Law Judges [sic] Decision." In March 1998, SSA replied there was no record found under the veteran's social security number. In April 1999 VA sent another request to SSA for medical records used to determine the veteran's entitlement to SSA benefits. VA received no response to this request. In the joint motion for remand, dated in February 2004, the parties acknowledged that despite the two efforts from the RO, VA had not obtained the veteran's SSA records. Moreover, the parties concluded, the veteran had not been provided with notice pursuant of 38 C.F.R. § 3.159(e) and that on remand the veteran should be provided with such notice. In September 2004, the Board remanded the case to the AOJ for action in conformance with the joint motion. In response to the Board's remand, the AOJ again attempted to obtain SSA disability records for the veteran. The record shows that in 2005, VA sent multiple requests via facsimile to the SSA for these records. In a reply dated in February 2006, SSA informed VA that the individual listed on the request was not entitled to disability or SSI benefits and that they presently had "no medical on file." As noted above, the AMC provided letters to the veteran in October 2004 and December 2005 informing him of efforts undertaken to obtain SSA disability records and updating him on the status of such efforts. In correspondence dated in June 2007, the AMC informed the veteran that it was required, pursuant to 38 C.F.R. § 3.159(e), to inform him they received a response from SSA stating that he was not entitled to benefits and that medical records were not available. The AMC provided the veteran with a VA Form 21-4138, "Statement in Support of Claim" for him to provide additional information in support of his claim. The veteran failed to respond to this notice. In a November 2007 supplemental statement of the case (SSOC), the AMC again informed the veteran that it had attempted to obtain any available records from SSA and that it had received a negative response from that agency. The Board finds that the veteran has been provided with substantially compliant section 3.159(e) notice, that under the circumstances of this case a reasonable person would be apprised of all necessary elements of such notice, and that proceeding without additional notice would result in absolutely no prejudice to the veteran. Collectively, the notices of October 2004, December 2005, and June 2007, and the November 2007 SSOC essentially included the elements necessary to satisfy section 3.159(e). In each of these documents, the AOJ informed the veteran that it was his SSA disability records it was unable to obtain. In the October 2004 and December 2005 correspondences, the AOJ, via the AMC, informed the veteran what it had done to acquire these records; namely, that it had made initial and follow-up requests. Regarding the third element of section 3.159(e), in both the October 2004 and December 2005 correspondences, the AMC notified the veteran that if he did not respond to those letters, it could make a decision on his claim as soon as 60 days. Finally, regarding the requirement that VA notify the veteran that he is ultimately responsible for providing the evidence, the Board notes that collectively, the correspondences informed the veteran what he could do to support his claim and that his failure to provide additional evidence would result in VA continuing with adjudication of the claim without the benefit of such additional evidence. In June 2007, after informing the veteran of the negative response from SSA, the AMC requested the veteran provide VA with any more information or make any statements in support of his claim. The AMC also informed the veteran he had 30 days to submit any additional evidence. In light of the numerous correspondences submitted to the veteran informing him of the status of his claim, the Board finds that a reasonable person would be on notice that it was his responsibility to submit the additional evidence. More important than the content of the 3.159(e) notice, however, are that the facts and circumstances of this case do not warrant that any additional notice be provided. First, neither the veteran nor his attorney had requested at any time during the course of this appeal that VA obtain SSA disability records. Moreover, neither the veteran nor his attorney had ever alleged that the veteran had filed a Social Security disability claim or that records of such a claim ever existed. The original records request in 1997 was merely a broad request for earnings information and not for disability records. The Board acknowledges that a document entitled Finding of the Physical Evaluation Board, dated in July 1998, reflected that the veteran had been found to be permanently disabled. This document, and a medical examination report accompanying it, however, were issued by the Navy Department and do not refer to a Social Security disability claim. It is apparent from reading 3.159(e), and subsection (iii) in particular, that the purpose of this notice is to provide the veteran with an opportunity to provide records VA was unable to attain, but that the veteran possibly could obtain. Here, however, there is simply no evidence in the file that the sought-after SSA disability records ever existed. Requesting records that do not now exist, and never did exist, would serve no purpose. This is not a situation contemplated by the requirements of section 3.159(e); instead, this is a situation where there is no possibility that assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(b) (West 2002). Second, a review of the claims folder reveals that the veteran has not contacted VA since the Board notified him in March 2004 that VA had revoked his representative's authority to represent VA claimants. Despite repeated efforts of the Board and the AMC to communicate with him, the veteran has not been heard from in four years. Thus, it is not even clear whether the veteran wishes to continue with the adjudication of this claim. In light of these circumstances, the Board finds VA has satisfied the duty to assist to the extent possible. Accordingly, the Board will proceed with appellate review. II. Service Connection Legal Criteria Service connection will be granted if it is shown that a veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in active military service. 38 U.S.C.A. § 1110, 1131 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2007). Service connection may also 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) (2007). "Generally, to prove service connection, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury." Pond v. West, 12 Vet. App. 341, 346 (1999). Where the determinative issue involves a medical diagnosis, competent medical evidence is required. This burden typically cannot be met by lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). When an approximate balance of positive and negative evidence regarding the merits of a claim exists, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107(b) (West 2002). Left Knee The veteran's service medical records showed that he was treated for knee pain on two occasions. The first was in May 1988, when the veteran presented with complaints of left knee pain after injuring himself playing basketball. A chronological record of medical care showed that the examining physician's assessment was mild medial collateral ligament (MCL) strain. There is no record of follow-up treatment and a report of medical history prepared for a 5- year routine physical examination, dated in December 1991, was negative for complaints of recurrent knee pain. The second incident was in October 1995 when, according to a chronological record of medical care, the veteran presented with bilateral knee pain. Examination at that time was unremarkable and the examining physician diagnosed patellofemoral pain syndrome. There were no subsequent medical records in reference to bilateral knee pain. In his notice of disagreement, dated in September 1996, the veteran alleged he had a current knee condition, but acknowledged it probably would not bother him for another 20 years. In his substantive appeal, the veteran alleged he had clicking and popping in his knee. The veteran did not specify in which knee he experienced clicking and popping. The Board has considered all relevant medical evidence, to include service medical records, a Disability Determination Bureau report, and VA examination reports dated in April 1996 and 2002. The weight of this evidence, however, fails to show the veteran currently suffers from a left knee disability. As reflected in a VA examination report, dated in April 1996, the veteran's subjective complaints at that time consisted of bilateral knee pain under the kneecap that had existed since 1989. The veteran experienced pain when walking down stairs. Objective physical examination findings included bilateral crepitus. Examination was negative for swelling or limitation of motion of either knee. X-rays also failed to detect any abnormalities of the knees. The examining physician diagnosed patellofemoral pain. In the October 2002 VA examination report, Dr. Z. reported that left knee examination was normal. Dr. Z. discussed pertinent physical examination findings, including the absence of deformity, swelling, or tenderness of the left knee. Dr. Z. also reported that the veteran could bear weight and hop on his left foot without causing pain, and that he was able to execute a squatting maneuver without pain. Flexion was to 130 degrees and extension to 30 degrees, both without pain according to the doctor. Left knee was negative for stressful maneuvers and did not provoke pain or identify instability. X-rays, according to the doctor, were also negative. The Board finds Dr. Z.'s report to be reliable. Dr. Z. stated that he had reviewed the veteran's claims file. Moreover, Dr. Z. thoroughly discussed current examination findings in support of his conclusion that the left knee was normal. On its face, the examination report is an adequate assessment of the veteran's left knee. The Board does not find the April 1996 VA examiner's report to be supportive of the veteran's left knee claim. Although that examiner diagnosed patellofemoral pain, he did not specify whether such a diagnosis was based on objective factors or just on the veteran's subjective complaints of pain. The lack of any objective examination findings suggests that this diagnosis was based on the latter. Such a diagnosis does not satisfy the criteria for a disability. Sanchez-Benitez v. Brown, 13 Vet. App. 282 (1999). In a report prepared for the Disability Determination Bureau for the state of Indiana, dated in October 1997, Dr. E.H. diagnosed arthralgia of the knee. The Board, however, does not find that this report satisfies the criteria for a present disability. First, on examination Dr. E.H. noted extremities to be normal. Specifically, Dr. E.H. noted full range of motion in all joints, normal gait, and the ability to walk heel to toe and tandemly. Dr. E.H.'s diagnosis appeared to be based solely on the veteran's subjective complaints rather than any objective abnormalities found on examination. Second, the doctor only diagnosed arthralgia of the knee, but did not specify which knee in any portion of his report. The Board finds this examination report to have little probative value and declines to afford it any weight. Entitlement to service-connected benefits is specifically limited to cases where there is a current disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (providing that in the absence of proof of a present disability there can be no valid claim). As no current disability of the left knee has been clinically shown, there is no basis for the Board to base compensation. Left Shoulder Service medical records showed that in July 1989, the veteran presented to the clinic with complaints of shoulder pain after sustaining a softball injury. The examiner's impression was strain of the pectoralis. The veteran was placed on light duty for one week and instructed to follow-up in one week if he had no improvement. There was no record of any follow-up treatment. Despite that the service medical records confirmed that the veteran experienced an in-service injury to the left shoulder, the Board cannot grant service connection because there is no evidence of a current disability. The competent medical evidence pertaining to a left shoulder condition is found in April 1996 and October 2002 VA examination reports. Both of these reports, however, were negative for either subjective complaints of left shoulder pain or objective signs of a left shoulder disorder. Both examiners discussed pertinent examination findings, which were negative for limitation of motion or instability. As the competent medical evidence does not show a current disability of the left shoulder, there is no basis for compensation. See Brammer, 3 Vet. App. at 225. Low Back The evidence shows that the veteran injured his back on two occasions in service. Service medical records included a chronological record of medical care, dated in March 1988, showing that the veteran presented with back pain secondary to trauma onto a steel transfer head. The veteran had tenderness at T5-T6. X-rays were negative for a fracture and the examiner diagnosed contusion. There was no record of any follow-up treatment. In a report of medical history prepared for a 5-year routine physical examination, dated in December 1991, the veteran denied recurrent back pain. The veteran's service medical records also showed that in October 1995, he presented with pain in the upper back after doing shoulder press. The examining physician diagnosed trapezius strain. There are no follow-up records of treatment for this injury. A VA general examination report, dated in April 1996, reflected the veteran's complaints of lower back pain that had existed since 1993 that the veteran related to a muscle pull. Subjective complaints consisted of pain on flexion and carrying in excess of 50 pounds. Physical examination was negative for paraspinal tenderness, postural abnormalities, limitation of motion, or neurological involvement. X-rays also failed to show abnormalities. The examining physician diagnosed mechanical low back pain. VAMC treatment records showed that in March 1998, the veteran was diagnosed with lumbar back sprain after experiencing pain in his back from weightlifting the previous day. The examining physician reported in a medical certificate that the veteran experienced a similar episode in March 1993 and recovered in one week. It is not clear where the physician obtained this information, but presumably this is what the veteran had reported. The physician prescribed various medications and instructed the veteran to follow-up. In an October 2002 VA examination report, Dr. Z. discussed the veteran's pertinent medical history, which included injuring his back when in the Navy while doing heavy lifting. Current complaints consisted of discomfort in the low back that occurred when standing. On physical examination of the thoracolumbar spine, Dr. Z. detected no muscle spasm, tenderness, or deformity. The veteran had 70 degrees of anterior flexion with no pain and an additional 10 degrees with pain. The veteran had 45 degrees of lateral flexion to the right and left with no pain limitation, 90 degrees of rotation to the left and right with no pain and zero degrees with pain, and 30 degrees of posterior extension with no pain and zero degrees with pain. Straight leg raise test was negative bilaterally. X-rays were normal. Dr. Z. diagnosed mild lumbar strain, not due to service. The Board must deny service connection for a mild lumbar strain because there is no medical nexus between the current diagnosis and any event in service. Dr. Z. stated that he had reviewed the veteran's claims file. Despite having considered the veteran's medical history, subjective complaints, and current examination findings, Dr. Z. still concluded that there was no relationship between the current diagnosis and an event in service. This report is the only competent medical evidence pertaining to a relationship between current a diagnosis and an in-service event, therefore, it is controlling. Regarding the veteran's statement reflected in the April 1996 report relating his back pain to his in-service injury, the Board is unable to accept this as competent medical evidence. As a lay person, however, he is not competent to render a medical opinion regarding the etiology of a disease. Espiritu v. Derwinski, 2 Vet. App. 494 (1992). The Board also declines to find the veteran's statement reflected in the April 1996 report that his back pain existed since 1993 to be credible evidence of continuity of symptomatology. The March 1998 medical certificate contradicts that statement. The veteran apparently told the physician in March 1998 that time that his back pain in 1993 subsided after only one week. In addition, the veteran has submitted no statements directly to VA that his back pain has been continuous since service. Accordingly, the Board finds there to be no credible evidence of record that the veteran has had continuous pain in his back since any of his in-service injuries. Klinefelter's Syndrome Every veteran is presumed to have been in sound condition at the time of acceptance for service, except for defects, infirmities, or disorders noted at that time or where clear and unmistakable evidence demonstrates that the disability or disease existed prior to service and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002); VAOPGCPREC 3-03. A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a) (2007). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b) (2007). See Falzone v. Brown, 8 Vet. App. 398, 402 (1995) (providing that the presumption of aggravation created by section 3.306 applies only if there is an increase in severity during service). Congenital or developmental defects are not diseases or injuries within the meaning of applicable law and regulations for VA compensation purposes. 38 C.F.R. § 3.303(c) (2007). A defect is a structural or inherent abnormality or condition which is more or less stationary in nature. VAOPGCPREC 82-90. A disease may be defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. Id. Service connection may be granted for diseases of congenital, developmental, or familial origin, but not for defects, unless such defect was subject to superimposed disease or injury during military service. Id. The veteran's service medical records included a urology clinic note, dated in September 1989, showing that the veteran had been diagnosed with Klinefelter's Syndrome from a karyotype in October 1988. There is no evidence that the veteran had been diagnosed with Klinefelter's Syndrome prior to that time. Despite that it appears the veteran's Klinefelter's Syndrome first manifest during active service, the Board finds that Klinefelter's Syndrome is a congenital defect not subject to compensation. In making this finding, the Board relies on the October 2002 VA examination report. In that report, Dr. Z. discussed the veteran's history of Klinefelter's Syndrome, which included findings of atrophic testes and azoospermia when in service. Dr. Z. also discussed service medical records showing that in 1988 or 1989, chromosome testing revealed an abnormality of his XY chromosome. Dr. Z. explained that this was the basis of the Klinefelter's Syndrome. Dr. Z. also discussed current examination findings, which included normal penis with soft and atrophic testicles, no gynecomastia and no female body type. Dr. Z. diagnosed congenital Klinefelter's Syndrome defined by carrier type chromosome testing according to the record, but noted that clinical features were absent on current examination. Dr. Z. explained that Klinefelter's Syndrome was a congenital chromosomal abnormality, which was not caused by running or aggravated by military service. Dr. Z's statement that Klinefelter's Syndrome was a "congenital chromosomal abnormality" places the disease in the category of a congenital defect. See VAOPGCPREC 82-90. As such, the Board may only grant service connection if the defect was subject to superimposed disease or injury during military service. The evidence, however, does not support such a finding. The service medical records included a report of groin pain and possible testicular injury after running in July 1990. When Dr. Z. mentioned running, he presumably was referring to this in-service injury. This indicates that he reviewed the service medical records for events that may have aggravated the Klinefelter's Syndrome. Despite having conducted such a review, Dr. Z. found no basis to conclude that the veteran's Klinefelter's Syndrome was aggravated in service and stated so in his report. No competent medical evidence contradicts Dr. Z.'s opinion and it is controlling. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the Board must deny the claim. 38 U.S.C.A. 5107(b) (2002); Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). III. Total Disability Rating Based on Individual Unemployability (TDIU) Legal Criteria 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 (2007). 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 (2007). In this case, the veteran contends that he is unable to maintain substantially gainful employment due to his service- connected disability. The veteran is service-connected for mixed vascular and tension type headaches, evaluated as 50 percent disabling, and bilateral ureteroceles and diverticulum, left ureter, which is rated as zero percent disabling. The veteran's overall combined disability rating is 50 percent. 38 C.F.R. § 4.25 (2007). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the veteran is 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, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2007). Here, the veteran is not entitled to a TDIU on a schedular basis; he has no single disability rated as 60 percent disabling and his combined rating is less than 70 percent. Even though a veteran does not meet the schedular criteria for consideration of unemployability under 38 C.F.R. section 4.16(a), 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(b) (2007). Rating boards should refer to the Director of the Compensation and Pension Service for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a) (2007). The veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b) (2007). 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. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). Analysis In his TDIU claim, dated in August 1997, the veteran reported that he last worked in December 1995 and that he left his last job because of his disability. In an undated counseling record found in his VR&E file, the veteran explained that the medications he took for his service-connected headaches made him very drowsy. The veteran claimed this made it difficult to concentrate. The record does not contain any other statements in support of his claim for a TDIU. The Board has considered the veteran's statements and acknowledges that his service-connected headaches undoubtedly present hardships regarding his employability. The relevant evidence in the claims file, however, does not show the veteran is incapable of performing the physical and mental acts required by employment solely due to service-connected disability. The claims file included a report of the Naval Physical Evaluation Board, dated in December 1998. In that document, the Physical Evaluation Board found the veteran unfit for active duty due to his chronic migraine headaches. He was assigned a combined disability rating of 30 percent. Although the Physical Evaluation Board found the veteran unfit for duty, its finding does not support the veteran's claim because it does not preclude the possibility that he is able to work in a civilian capacity. There are multiple VA examination reports of record, however, none of these supports the veteran's claim. In a VA neurology examination report, dated in March 1999, Dr. Z.G. determined the veteran had mixed headache disorder, with both migraine and tension type qualities. Dr. Z.G. stated that "severe headaches certainly can contribute to unemployability due to missed work." This statement does not satisfy the criteria for a TDIU for two reasons. First, it does not establish that the veteran is unemployable. Second, it only recognizes that severe headaches generally can contribute to unemployability; Dr. Z.G. did not comment on the extent to which the veteran's headaches contributed to his employability. In a VA genitourinary examination report, dated in March 1999, Dr. K.R. noted multiple medical problems such as migraine headaches, gastroesophageal acid reflux disease (GERD), and fibromyalgia. Dr. K.R. stated that the veteran was unemployed secondary to his migraine headaches, more so than fibromyalgia. This statement does not support the veteran's claim either. Although Dr. K.R. asserted that the veteran's service-connected migraine headaches contributed to the veteran's unemployed status more so than fibromyalgia, he did not assert that they were solely responsible for it. Moreover, the veteran's unemployed status must be distinguished from his unemployability. See Van Hoose, 4 Vet. App. at 361. This report does not provide evidence of unemployability. The Board has also considered VAMC treatment notes, dated from November 1996 to July 1997, reflecting treatment on numerous occasions for migraine headaches. Although these records attest to the severity of the veteran's disability, nothing in them pertain to the veteran's ability to maintain substantially gainful employment. Evidence on the severity of the service-connected headaches disability is also found in a report from Dr. H.E., dated in October 1997. In that report, Dr. H.E. noted the veteran's subjective complaints, which included severe headaches causing nausea and loss of appetite. Dr. H.E. diagnosed migraine headaches, severe, chronic, but did not comment on the effect on employability. This report does not support the veteran's claim. The Board has also considered the veteran's VR&E file, which showed that he filed an application for vocational rehabilitation in August 1996. Relevant evidence from this file is limited, however, because the veteran failed to complete his participation in the program. In a July 1997 letter, R.B., Counseling Psychologist, informed the veteran she had developed a plan of employment services for him. The veteran did not respond to this letter. In February 1998, R.B. sent another letter to the veteran informing him that his vocational program had been interrupted because he had not pursued the placement program outlined in his rehabilitation plan. The veteran failed to respond to that letter. In a letter dated in April 1998, R.B. informed the veteran that because he failed to respond, his vocational rehabilitation program had been discontinued. The VR&E file included no subsequent correspondences from the veteran. Although relevant evidence in the VR&E file is limited, the file did include two reports pertinent to this issue. The first was a Job Readiness Assessment, dated in January 1997. In that report, C.G., Vocational Evaluator, stated that the veteran's feasibility for vocational rehabilitation services was questionable because of his headache condition. C.G. stated that the veteran's headaches occurred frequently and were incapacitating in nature. It is not clear where C.G. obtained this information. A subsequent report, however, showed that the veteran's headaches had improved and no longer affected his ability to obtain employment. In a Full Vocational Evaluation, dated in June 1997, C.S., Vocational Evaluator, concluded that the veteran was suitable for employment. C.S. based this conclusion on the veteran's own admissions regarding improvement in his headache condition. C.S. also identified possible careers suitable for the veteran's interests, educational background, and aptitude testing results. Thus, the most recent evidence in the VR&E report suggests that the veteran is able to maintain employment notwithstanding his service-connected disabilities. To the extent that the veteran's service-connected disabilities interfere with his employability, the currently assigned ratings adequately contemplate such interference, and there is no evidentiary basis in the record for higher ratings on an extra-schedular basis. Hence, the Board is not required to remand the issue of entitlement to a TDIU to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) (2007) for assignment of an extra-schedular evaluation. Bagwell, 9 Vet. App. at 338-39; Floyd, 9 Vet. App. at 96 (1996). ORDER 1. Service connection for a left knee disorder is denied. 2. Service connection for a left shoulder disorder is denied. 3. Service connection for chronic disability manifested by low back pain is denied. 4. Service connection for Klinefelter's Syndrome is denied. 5. A total disability rating based on individual unemployability due to service-connected disabilities is denied. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs