Citation Nr: 1031376 Decision Date: 08/20/10 Archive Date: 08/24/10 DOCKET NO. 06-28 736 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a hernia disorder. 2. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected right and left knee patella chondromalacia. 3. Entitlement to service connection for joint pain disorder. 4. Entitlement to an increased disability rating for left knee patella chrondromalacia (left knee disorder), currently evaluated at 10 percent. 5. Entitlement to an increased disability rating for right knee patella chrondromalacia (right knee disorder), currently evaluated at 10 percent. 6. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Terrence T. Griffin, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1986 to May 1987. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of November 2004 by the Department of Veterans Affairs (VA) St. Petersburg, Florida, Regional Office (RO). The Board has recharacterized the Veteran's service connection claim for a joint and leg pain disorder to comply with 38 C.F.R. § 4.14, as reflected on the title page. The Board notes that the Veteran's August 2006 and November 2006 statements and his submission of VA treatment records related to the treatment of a lower back disorder reasonably raise an informal claim for service connection for a back disorder, to include as secondary to right and left knee disorders. This claim has not been addressed by the agency of original jurisdiction. The Veteran's claim that he is entitled to service connection for a back disorder, to include as secondary to right and left knee disorders, is not inextricably intertwined with the claims presently under review, and the Board has no jurisdiction to consider the claim in the first instance. Accordingly, the Board refers this matter to the RO for proper development and adjudication. FINDINGS OF FACT 1. No competent evidence of record links the Veteran's current hernia disorder to military service, or to any service connected disorder. 2. The preponderance of the medical evidence shows that the Veteran does not have an acquired psychiatric disorder. 3. No medical evidence of record diagnoses an underlying medical condition related to any joint pain, to include any disorder of the shins, hips or feet. 4. Prior to January 14, 2008, right knee or left knee flexion was not limited to 45 degrees. 5. On and after January 14, 2008, the greatest level of right and left knee flexion was to 30 degrees. 6. At no time have right or left knee disorders resulted in extension limited to 5 degrees or more, or any instability. 7. The preponderance of the evidence demonstrates that the Veteran is not unemployable due to his service-connected disabilities. CONCLUSIONS OF LAW 1. A hernia disorder was not incurred in or aggravated by military service, nor was it proximately due to or aggravated by a service connected disorder. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309, 3.310 (2009). 2. An acquired psychiatric disorder was not incurred in, or aggravated by, service nor was it proximately due to or aggravated by a service connected disorder. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2009). 3. A joint pain disorder, to include bilateral shins, hips and feet, was not incurred in or aggravated by a service connected disorder or military service, nor may it be so presumed. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309, 3.310 (2009). 4. Prior to January 14, 2008, the criteria for compensable ratings for right and left knee disorders are not met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.1-4.16, 4.40, 4.45, 4.71, 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261, 5267 (2009). 5. On and after January 14, 2008, the criteria for respective 20 percent ratings, but no more, for right knee and left knee disorders, based on limitation of flexion are met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.1-4.16, 4.40, 4.45, 4.71, 4.71a, Diagnostic Code 5260 (2009). 6. The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify The VA has a duty to provide a claimant notification of information and evidence necessary to substantiate the claim submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103(a); 5103A; 5107; 38 C.F.R. § 3.159. The notice requirement with respect to the Veteran's present service connection claims was accomplished in April 2004 and June 2004 letters to the Veteran, which were provided prior to the adjudication of his respective claims. With respect to the Veteran's increased rating claims, letters dated in April 2004, June 2004 and July 2008 from the RO provided the Veteran with an explanation of the type of evidence necessary to establish an increased rating, what evidence was to be provided by him, and what evidence the VA would attempt to obtain on his behalf. The letters explained that the evidence must demonstrate a greater level of disability than previously assessed to establish an increased evaluation. The letters also indicated that these findings could be supported by statements from the Veteran's doctor containing physical and clinical findings, the results of any laboratory tests or x-rays, and the dates of the examinations and tests. The July 2008 letter also informed the Veteran of the specific rating criteria relevant here. The foregoing letters plus the June 2006 Statement of the Case and January 2008 Supplemental Statement of the Case, adequately explained what evidence would warrant a higher rating. Although the information contained the respective SOC and SSOC, as well as in the April 2004, June 2004 and July 2008 letters, were not provided prior to the rating decision on appeal, the Board finds that this did not result in any prejudice to the Veteran, as he has been allowed an opportunity to submit additional evidence (which he did). Moreover, after this additional evidence was received the Veteran's claims were readjudicated. Therefore, the Board finds that VA has no outstanding duty to inform the Veteran that any additional information or evidence is needed, and any defect as to the manner and timing of the notice provided is harmless. The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues has been obtained. The Veteran's service and post-service treatment records have been obtained, and he has not indicated there are any additional records VA should seek on his behalf. Additionally, in a correspondence, received by VA in October 2008, the Veteran withdrew his request for a hearing. The Veteran has also been provided appropriate VA examinations related to his increased rating claims; nevertheless, as there is no competent medical evidence of record suggesting (i) a hernia disorder, (ii) an acquired psychiatric disorder or (iii) a joint pain disorder, to include bilateral shins hips and feet, are related to service or any service connected disorder, a medical examination is not required to assist the Veteran to establish this nexus. See Duenas v. Principi, 18 Vet. App. 512, 518 (2004); see also, 38 U.S.C.A. § 5103(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Further, the Board does not have notice of any additional relevant evidence, which is not of record. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain the evidence necessary to substantiate the Veteran's claims, and no further assistance to develop evidence is required. Service Connection Claims The Veteran presently seeks service connection for a hernia disorder, an acquired psychiatric disorder and a joint pain disorder, to include bilateral shins hips and feet. Applicable Regulations Service connection may be granted for disability due to disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131. If a chronic disorder, such as arthritis or psychosis, is manifest to a compensable degree within one year after separation from service, the disorder may be presumed to have been incurred in-service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In order to establish service connection, three elements must be satisfied. There must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of the in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection may also be granted for disability shown to be proximately due to or the result of a service-connected disorder. See 38 C.F.R. § 3.310(a). This regulation allows service connection for a disorder which is caused by a service-connected disorder, or for the degree of additional disability resulting from aggravation of a nonservice-connected disorder by a service- connected disorder. See Allen v. Brown, 7 Vet.App. 439 (1995). Hernia Disorder The Veteran's service treatment record is absent any documented treatment and/or complaints of a hernia disorder, or any similar condition. The Veteran's August 1986 enlistment examination, documents no abnormalities associated with the Veteran's abdomen and viscera, to include hernia, and on an August 1986 enlistment Report of Medical History, he denied any history of hernia. Also, no hernia disorder or similar condition was noted on the Veteran's February 1987 Medical Board separation examination report. An August 2003 VA treatment record documents the Veteran's post- service treatment for a possible hernia disorder. At that time, the Veteran reported right inguinal pain and swelling, which increased with extended periods of standing. The VA medical professional diagnosed the Veteran with a right inguinal hernia and referred him to the VA surgery department. However, as noted in an October 2003 VA surgical consultation report, upon examination, the VA surgeon specifically indicated "no hernia [was] present, although the external ring [was] enlarged." The VA surgeon further opined that the Veteran's pain was secondary to an exercise related muscle strain (i.e., weight lifting). The Veteran was again treated for a possible hernia disorder in November 2005, as reflected in a VA treatment note. At this time, the Veteran reported a 2-year history of "pain and bulging," which had increased in severity over the past few months. An examination performed at this time revealed a left small inguinal/femoral. Based on this diagnosis, the Veteran was referred for further consultation, and subsequently underwent surgery to treat this disorder. Notably, none of the medical evidence of record opines, or suggests, that a hernia disorder is related to military service or any service connected disorder. Analysis As an initial matter, the Board has considered the Veteran's statements and opinion that his hernia disorder was caused, and/or related to, his military service and/or service connected disorder. However, as the determinative issue is not within lay observation and the Veteran lacks the necessary medical training and expertise to provide a competent opinion on this matter, his statements alone insufficient to support the present claim. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1131, 1336 (Fed. Cir. 2006). Moreover, any claim of experiencing hernia related symptoms on an ongoing basis is contradicted by the separation examination which reflects that examination at that time showed that no hernia was present, as well as by the complete lack of any medical evidence for many years after service, documenting any complaint or treatment for such symptoms. Indeed, there is otherwise no indication that any hernia disorder or similar condition was diagnosed or treated for decades, at the earliest, following the Veteran's separation from service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in deciding a service connection claim). In addition, the history given by the Veteran in 2005 for treatment purposes in which he placed the onset of symptoms as being only two years earlier places the date of onset of such symptoms as being many years after service. In any service connection claim, competent medical evidence and opinions are highly probative in establishing service connection. Upon thoroughly reviewing the evidence of record, the Board finds that there is no competent medical evidence relating any current hernia disorder to military service or to any service connected disorder. Initially, the Veteran's service treatment records contain no record of in-service hernia related complaints or treatment. Moreover, an October 2003 VA consultation record reflects the VA surgeon's opinion that the Veteran's complaints were likely related to post-service exercise activity (i.e., weight lifting). Accordingly, the greater weight of the evidence is against finding that the Veteran's current disability was caused by, or related to military service or any service connected disorder. Therefore, as the preponderance of the evidence is against the service connection claim for a hernia disorder, the reasonable doubt doctrine is not for application, and the Veteran's appeal is denied. See 38 U.S.C.A. § 5107(b). Acquired Psychiatric Disorder The Veteran's service treatment record documents no treatment, or complaints, related to any acquired psychiatric disorder. The Veteran's August 1986 enlistment and February 1987 Medical Board separation examinations, documented no psychological abnormalities. Further, on his August 1986 enlistment Report of Medical History, the Veteran denied any history of depression or excessive worry; or nervous trouble of any sort. Significantly, the Veteran has not identified any record that would reflect the current presence of an acquired psychiatric disorder. The Board has considered the Veteran's assertions that his currently claimed acquired psychiatric disorder (claimed as "stress") was caused by pain associated with his service connected disorders. See Veteran's Statement in Support of Claim, November 13, 2006. Although competent to relay his account of psychological symptoms, as a lay person, the Veteran lacks the necessary medical training and expertise diagnosis a psychological disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1131, 1336 (Fed. Cir. 2006). Indeed, detection of a disorder of this nature requires sophisticated medical and diagnostic evaluations. In the present matter, no medical evidence of record indicates that the Veteran has any currently diagnosed acquired psychiatric disorder. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that a service connection claim must be accompanied by evidence that establishes that the claimant currently has the claimed disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, there is an absence of proof of the claimed disability, and therefore a basis upon which to establish service connection has not been presented. Accordingly, the Veteran's service connection claim for an acquired psychiatric disorder is denied. Joint Pain Disorder, to Include Bilateral Shins, Hips and Feet In the interest of clarity, the Board again notes that the Veteran's perfected appeal sought to establish (i) service connection for a joint and leg pain disorder and (ii) entitlement an increased disability rating for right and left knee disorders. Significantly, a January 2008 VA examiner, considering the Veteran's account of his bilateral knee disorder, the medical evidence of record and appropriate physical examination results, opined that the Veteran's bilateral lower extremity weakness, pain and decreased mobility were related to right and left knee disorders. See "Diagnosis," VA Examination Report, January 14, 2008. The laws governing service connection do not authorize a separate grant of service connection for leg pain, which is a symptom of another disability, in this case, service connected right and left knee disorders; therefore, the following analysis will center on the Veteran's entitlement to service connection for a joint pain disorder, to include bilateral shins, hips and feet. 38 C.F.R. § 4.14 (the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided). The question of entitlement to increased disability ratings for right and left knee disorders are addressed separately in this decision. The Veteran's August 1986 enlistment examination notes no abnormalities associated with his upper extremities, feet, lower extremities, spine or musculoskeletal system. The Veteran also denied any history of (i) arthritis, rheumatism or bursitis or (ii) bone, joint or other deformity, on his enlistment Report of Medical History. A November 1986 service treatment record reflects the Veteran's treatment for a left calf laceration, which a treatment record dated in the same month noted as resolving. In January 1987, the Veteran sought treatment for left ankle pain and was diagnosed with a left ankle and ligament sprain; however, no further treatment record documents any related treatment for this disorder. What is more, aside from knee disorders, no joint or leg disorders were documented on the Veteran's February 1987 Medical Board separation examination report. A June 2002 treatment record documents the Veteran's first post- service treatment for shin and hip pain. At this time, the Veteran reported the onset of these symptoms approximately 11-to- 12 months prior; however, no medical disorder was diagnosed related to his complaints. At a November 2003 VA treatment, the Veteran was treated for hip related pain, but x-rays were normal, as were the results of a neurological examination. Once more, the VA orthopedic surgeon diagnosed no disorder associated with the Veteran's symptoms. In September 2004, the Veteran sought VA treatment for bilateral foot pain; nevertheless, no medical diagnosis was indicated. Notably, none of the aforementioned treatment records, nor any others of record, suggest or opine that the Veteran's reported symptoms are related to any underlying medical diagnosis, military service or any service connected disorder. Without question, the Board has considered the Veteran's competent account of joint pain, to include bilateral shins, hips and feet, as his account of pain symptoms are within lay observation. See Jandreau, 492 F.3d at 1376-1377; Buchanan, 451 F.3d at 1336. However, the Veteran does not have the medical training and expertise necessary to provide a competent medical diagnosis of any possibly underlying disorder, associated with the reported symptoms, or to relate the reported symptoms to a medical diagnosis/disorder. Id. Given the competent medical evidence of record, the Board finds that service connection for a joint pain disorder, to include bilateral shins, hips and feet, is not warranted. After a thorough review of the claims folder, the Board finds that no medical care provider has identified any pathology underlying the complaints of joint pain, to bilateral shins, hips and feet. Significantly, the existence of pain alone is not a disability for which service connection may be granted, and presently absent from the record is any competent evidence diagnosing any underlying joint pain disorder, to include bilateral shins, hips and feet. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (pain alone is not a disability for which service connection may be granted). As there is no competent medical evidence of record diagnosing any medical condition related to a joint pain disorder, to include bilateral shins, hips and feet, the preponderance of the evidence weighs against the Veteran's service connection claim for this disorder, and the service connection claim is denied. Right and Left Knee Disorder Increased Rating Claims Historically, a December 1997 rating action granted the Veteran service connection for a right and left knee disorders, assigning respective noncompensable ratings, effective July 22, 1997. VA received the Veteran's present increased rating claim right and left knee disorders on September 23, 2003, and the RO denied this claim in a November 2004 rating action. The Veteran filed a timely notice of disagreement and perfected an appeal to the Board, with respect to this rating action. During the pendency of the Veteran's claim, a January 2008 rating action granted the Veteran separate 10 percent disability ratings, based on painful noncompensable limitation of flexion, effective January 14, 2008. Background The Veteran was provided an October 2004 VA examination, with respect to his increased rating claims. During the examination interview, the Veteran reported bilateral knee popping, difficulty squatting and climbing, and stuffiness after prolonged sitting. On physical examination, the Veteran's left and right knees exhibited no swelling, "good stability," and no weakness, fatigue or incoordination. Additionally, right and left knee (i) flexion from zero-to-135 degrees and (ii) full extension, with no loss of range of motion due to repetitive testing due or pain, was documented. Bilateral knee x-rays were within normal limits. Based on the Veteran's account of his disorder, the medical evidence of record and current examination finding, the VA examiner characterized the Veteran's examination as "normal,", and opined that the present bilateral knee disorder was likely mild and likely causing no "significant functional impairment of the knees." The Veteran was provided another VA examination in connection with his present claim, in January 2008. At this examination, the examiner noted the Veteran's usage of a cane; impaired ability to stand; inability to walk more than a quarter mile; and antalgic gait. The examiner further documented the presence of bilateral knee pain, stiffness, inflammation/tenderness and repeated effusion, but there was no evidence of weakness or episodes of locking. The examination report also contains the examiner's notation of bilateral knee crepitation, clicks or snaps, and grinding, but no further joint abnormality. During this examination, the examiner also reported that the Veteran had severe weekly right and left knee joint disease flare-ups, following such an episode the Veteran provided an account of (i) not being able to work the following day and (ii) being unable to stand walk or drive for any extended period of time. At this time, right and left knee (i) flexion was from zero-to-30 degrees, with pain at 10 degrees, and (ii) pain free extension was to zero degrees, with no additional loss of motion on repetitive testing. Relying on the Veteran's account of his disorder, the medical evidence of record and current examination results, the examiner opined that the Veteran's right and left knee disorders had a significant effect on his occupational ability, resulting in (i) decreased mobility, (ii) difficulty lifting, carrying and reaching, (iii) "weakness or fatigue" and (iv) decreased lower extremity strength. Moreover, the VA examiner indicated the Veteran's bilateral knee disorder severely impacted his ability to shop, travel, complete chores, exercise, participate in sports and recreational activities. Aside from these VA examination reports, the only medical records related to the Veteran's knees are treatment records associated with other conditions, dated as early as November 2003. Significantly, these records do not provide any notation of the level of limited right and/or left knee motion, if any, or any information related to the physical condition of his knees. At most, these treatment records simply note the Veteran's account of bilateral knee pain, such as reflected in an August 2002 VA treatment record. Limitation of Flexion Based on the evidence of record, prior to January 14, 2008, there is no evidence of right or left knee limitation of flexion to 45 degrees or more, as to warrant the assignment of a compensable rating pursuant to Diagnostic Code 5260. At the Veteran's October 2004 VA examination, left knee and right knee flexion was from zero-to-135 degrees, with no painful motion noted. What is more, the examiner specifically stated that the Veteran had "a normal physical examination, [and a] normal x-ray examination of both knees." The evidence record does document the Veteran's multiple complaints of bilateral knee pain, during the period under review, but there is no evidence any diagnosis of arthritis of either the left or the right knee, precluding the assignment of a rating based on painful non-compensable limitation of flexion. See 38 C.F.R. § 4.71a, Diagnostic Code 5003, 5010. Therefore, in light of the evidence of record, prior to January 14, 2008, compensable ratings for respectively service connected right knee and left knee disorders based on limitation of flexion are not warranted, and to this extent the Veteran's appeal is denied. See Diagnostic Code 5260. On and after January 14, 2008, the Board finds that the evidence of record reflects limitation right and left knee flexion of sufficient severity to warrant the assignment respective 20 percent ratings, and no more, for the Veteran's right and left knee disorders. The January 2008 VA examination noted right and left knee flexion limited to 30 degrees, which presents sufficient limitation of flexion, as to warrant a 20 percent rating. The Board acknowledges the notation at this examination of painful flexion beginning at 10 degree; however, the examiner did not note any right or left knee deformity, instability, or any muscle atrophy related to disuse. See 38 C.F.R. §§ 4.40, 4.45. What is more, the January 2008 VA examination report further noted no evidence of right or left knee flexion limited to 15 degrees or less. See 38 C.F.R. §§ 4.58, 4.59. Accordingly, the Board finds that the level of pain noted on flexion at the January 2008 VA examination is contemplated by Diagnostic Code 5260, and the rating presently assigned. Therefore, a 20 percent rating, and no more, is warranted, on and after January 14, 2008, for the Veteran's respective right knee disorder and left knee disorder, and to this extent, the appeal is granted. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. In sum, the Board finds that a compensable rating for the Veteran's respective right and left knee disorders, based on limitation of flexion is not warranted, prior to January 14, 2008. Nevertheless, on and after January 14, 2008, separate 20 percent ratings, and no more, are warranted for limitation of left and right knee flexion. Limitation of Extension Upon thoroughly reviewing the evidence of record, the Board finds that at no time has the Veteran demonstrated sufficient right or left knee limitation of extension, as to warrant a compensable rating. See 38 C.F.R. § 4.71a, Diagnostic Code 5261. At both the Veteran's October 2004 and January 2008 VA examinations, bilateral pain-free extension to zero degrees was noted. Essentially, there is no record reflecting limitation of right or left knee extension to 10 degrees or more. Moreover, the record is clear, in its documentation of the absence of right or left knee arthritis. As such, at no time does the evidence of record establish a basis for the assignment of a compensable rating, based on limitation of extension, for the Veteran's respectively service connected right and left knee disorders. See 4.71a, Diagnostic Code 5003, 5010, 5261. Therefore, to this extent the Veteran's appeal is denied. Instability The Board also finds, at no time during the period under review, does the evidence establish the Veteran's entitlement to a separate disability rating for right or left knee disorders, based on instability. See 38 C.F.R. § 4.71a. Diagnostic Code 5257. The October 2004 VA examination report documented no usage of a knee brace, or any similar device for stability, nor was tenderness or weakness associated with the medial and lateral aspects of the Veteran's right and left knee. Although at the January 2008 VA examination the Veteran was noted as utilizing a cane at all times, the examiner specifically indicated the absence of any episodes of giving way, or instability. What is more, at this January 2008 VA examination, both the Veteran's right and left knees were normal on ligament testing (i.e., Lachman's McMurray's tests). In view of this, a separate 10 percent evaluation under Diagnostic Code 5257, for instability is not warranted for any period under review, and to this extent, the appeal is denied. The Board has considered other possibly applicable Diagnostic Codes, but the evidence of record does not reflect any right or left knee ankylosis; symptomatic removal of the semilunar cartilage; impairment of the tibia and fibula; or Genu recurvatum necessary for consideration of other Diagnostic Codes. Extraschedular Consideration Additionally, the Board has considered whether the Veteran's claims warrant referral to the Chief Benefits Director of VA's Compensation and Pension Service under 38 C.F.R. § 3.321. In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. The Board has considered the Veteran's complaints related to the impact his service-connected disabilities have on his ability to work and perform the daily activities of living. Nevertheless, the Board finds that the respective disability ratings that have been assigned contemplate the level of impairment reported by the Veteran and there is no aspect of the Veteran's disabilities that is not contemplated by the schedular criteria. Moreover, there is no evidence of any unusual or exceptional circumstances, such as marked interference with employment or frequent periods of hospitalization, which is not contemplated in the ratings assigned, as to take this matter outside the norm and to warrant an extraschedular rating. Once again, the Board, having considered both the Veteran's reports of impairment and the medical evidence of record, concludes that the rating schedule contemplates this loss of working time, due to exacerbations, which is commensurate with the Veteran's level of disability. See 38 C.F.R. § 4.1. See also VAOPGCPREC 5-2005 (Nov. 25, 2005). For the aforementioned reasons, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under 38 C.F.R. § 3.321 is not warranted. See Bagwell v. Brown, 9 Vet. App. 337 (1996). Total Disability Rating Based on Individual Unemployability (TDIU) The Veteran contends that he is entitled to TDIU benefits. However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran is not unemployable as a result of his service connected disabilities. As such, TDIU benefits are not warranted. VA regulations indicate that when a Veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned when: 1) if there is only one disability, this disability shall be ratable at 60 percent or more; and 2) if there are two or more disabilities, at least one disability shall be ratable at 40 percent or more, and there must be sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). To meet the requirement of "one 60 percent disability" or "one 40 percent disability," the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. In addition to the foregoing, there must be evidence that the disabled person is unable to secure or follow a substantially gainful occupation. Id. Marginal employment is not considered substantially gainful employment. Id. A total disability rating may also be assigned pursuant to the procedures set forth in 38 C.F.R. § 4.16(b) for Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). Currently, the Veteran is service connected for a right knee disorder and a left knee disorder. As addressed previously, the Board has denied the Veteran's claim for an increased compensable rating for the respective knee disorders, prior to January 14, 2010, and granted respective 20 percent ratings for a right knee disorder and a left knee disorder, on and after January 14, 2010. For purposes of determining entitlement to TDIU, the Board finds it appropriate to consider the Veteran's service connected disabilities as one disability, since they are associated with both lower extremities. As prior to January 14, 2010, the Veteran's respective disorders were assigned noncompensable ratings, the combined rating for this period is zero percent. On and after January 14, 2010, the Veteran's combined disability rating, remains below 60 percent. See 38 C.F.R. §§ 4.25, Table I, 4.26. Therefore, at no time during the period under review has the Veteran met the threshold schedular requirements for an award of TDIU benefits, under 38 C.F.R. § 4.16(a). However, 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). 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). 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). The rating board did not refer this case for extra-schedular consideration. The Board has reviewed the evidence to see if such referral is warranted here. However, the evidence does not demonstrate that the Veteran is totally unemployable as a result of his service- connected disabilities. The October 2004 VA examination specifically noted that the Veteran was employed and that his physical examination was "normal." The Board acknowledges that the January 2008 VA examination noted that right and left knee disorders had a significant effect on the Veteran's occupational abilities, but the examiner did not suggest, or opine, that these disorders rendered the Veteran unemployable. What is more, at this January 2008 VA examination, the Veteran confirmed that he was currently employed, indicating that "bilateral knee flares...[prevented him from going to] work the following day," which is contemplated in the rating assigned for his right and left knee disorders. Moreover, in a November 2006 statement, the Veteran specifically stated "...I don't work as much..." because of knee pain. Nevertheless, the Board notes that the current bilateral 20 percent ratings contemplate a significant degree of industrial impairment. As the Veteran has not been granted service connection for any other disorders, the evidence of record does not demonstrate that the Veteran is unable to maintain a gainful occupation by reason of service-connected disabilities. In determining whether the Veteran is entitled to a TDIU rating, neither nonservice-connected disabilities or advancing age may be considered. 38 C.F.R. § 4.19. The Board, therefore, concludes that this case presents no unusual or exceptional circumstances that would justify a referral of the total rating claim to the Director of the VA Compensation and Pension Service for extra-schedular consideration. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to TDIU benefits must be denied. ORDER Service connection for a hernia disorder is denied. Service connection for an acquired psychiatric disorder is denied. Service connection for a joint pain disorder, to include bilateral shins, hips and feet, is denied. An increased compensable rating for a right knee disorder, prior to January 14, 2008, is denied. An increased compensable rating for a left knee disorder, prior to January 14, 2008, is denied. A 20 percent rating, and no more, for right knee limitation of flexion is granted, on and after January 14, 2008, subject to the law and regulations governing the payment of monetary benefits. A 20 percent rating, and no more, for left knee limitation of flexion is granted, on and after January 14, 2008, subject to the law and regulations governing the payment of monetary benefits. Entitlement to a total disability evaluation based on individual unemployability (TDIU) is denied. ______________________________________________ MICHAEL MARTIN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs