Citation Nr: 1034094 Decision Date: 09/10/10 Archive Date: 09/21/10 DOCKET NO. 05-08 678 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for a bilateral shoulder disability. 2. Entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1948 to January 1956. These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision by the San Diego, California Department of Veterans Affairs (VA) Regional Office (RO). In May 2007, the Board reopened the claim of service connection for a bilateral shoulder disability and remanded for additional notice and development the matters of service connection for a bilateral shoulder disability based on de novo review and entitlement to TDIU. The case was returned to the Board and, in November 2008 and April 2010, the issues were again remanded. Please note this appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2009). FINDINGS OF FACT 1. The Veteran's bilateral shoulder pain and abrasions in service were acute and resolved, and a chronic shoulder disability was not manifested in service; arthritis of a shoulder was not manifested in the Veteran's first postservice year; and his current bilateral shoulder disability is not shown to be related to his service, to include as due to injury therein. 2. The Veteran's service-connected disabilities, osteochondritis right knee, rated 10 percent; residual fracture left knee, rated 10 percent; tinnitus, rated 10 percent; residual fracture left ankle, rated 10 percent; and right leg scar and hearing loss, each rated 0 percent, are rated 40 percent combined, and are not shown to be of such nature and severity as to preclude him from obtaining or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. Service connection for a bilateral shoulder disability is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2009). 2. The schedular requirements for a TDIU rating are not met, and a TDIU rating is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19, 4.25 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484- 86 (2006), aff'd Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claim. June 2004, December 2004, and June 2007 letters notified him of the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. The June 2007 letter also informed the Veteran of disability rating and effective date criteria. He has not alleged that notice in this case was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (holding that "where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"). A June 2010 supplemental statement of the case readjudicated the claim after all necessary notice was provided and he had ample opportunity to respond/supplement the record. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (noting that a VCAA timing defect may be cured by the issuance of fully compliant notification followed by readjudication of the claim). The Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured. The RO arranged for VA examinations in February 2002, March 2008, August 2009, and May 2010. The Board finds that the examination reports cumulatively provide sufficient information and are adequate to address the matters at hand. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of the claims. B. Factual Background The Veteran's STRs show that in July 1951 he was hospitalized after being struck by an automobile while a pedestrian. He complained of bilateral shoulder pain, and had bilateral shoulder abrasions; X-rays were negative and no other pathology was evident. On September 1955 "final type" service examination, the Veteran reported bone, joint, or other deformity, but denied painful or "trick" shoulder or elbow; the upper extremities were normal on clinical evaluation. It was noted that for the past five years he had been under the care of doctors for his left knee and foot. On service separation examination in January 1956, the upper extremities were normal on clinical evaluation. Private chiropractic records from Dr. A. show that in June 1990 the Veteran complained of pain in both shoulders; the diagnosis was bursitis of both shoulders. In August 1990 it was noted that the shoulder problem was new. A September 1993 letter from Dr. L. C. noted the Veteran first sought treatment for his shoulders in March 1991, and that he complained of intermittent bilateral shoulder pain since 1983, with continuous pain since 1988. The diagnosis was severe bursitis in both shoulders and he was treated with an injection. On October 1993 VA examination, it was noted that the Veteran's bilateral shoulder problem began in 1991, primarily the right shoulder. The diagnosis was bursitis of the shoulders, very mild, with very minimal residuals. X-rays revealed mild degenerative changes involving both glenohumeral joints, greater on the right, and mild to moderate degenerative changes of both AC joints, greater on the right; no other significant findings were identified. March 2000 X-rays of the left shoulder were negative for a fracture or dislocation. An initial July 2000 orthopedic consultation report by Dr. W. C. H., an orthopedic surgeon, notes the Veteran's complaints of left shoulder pain. It was also noted that the Veteran had received five cortisone injections into his left shoulder over the past year. The impression was chronic impingement syndrome of the left shoulder, and chronic rupture of the proximal biceps tendon of the shoulders. In a February 2001 letter from Dr. W. C. H., it was noted that the Veteran had been his patient since July 2000 for chronic complaints of left shoulder pain. It was further indicated that the Veteran's symptoms had been present for approximately one year at the time of initial treatment. After performing an MRI on the left shoulder, the Veteran underwent left rotator cuff surgery in November 2000. The impression was chronic impingement syndrome with massive rotator cuff tear, left shoulder, status post subacromial decompression with distal clavicle excision and repair of massive rotator cuff tear. An August 2001 letter from Dr. W. C. H. notes that the Veteran had post-operative problems with the left shoulder and continued to have impingement syndrome in the right shoulder. He indicated that the Veteran's shoulder symptoms had been present for many years and began following a July 1951 injury. He opined that given the nature of his bilateral shoulder condition, "it is entirely within the realm of medical probability that his shoulder complaints were caused by the original injury sustained in 1951." He commented that he was aware that 48 years had passed since the injury, and that it was unlikely that the Veteran would currently have significant shoulder problems were it not for the 1951 injury. On February 2002 VA examination, upon review of the Veteran's claims file and noting his injury in 1951 and the August 2001 letter from Dr. W. C. H., the examiner opined that if the Veteran had sustained significant injuries to his shoulders [in 1951, i.e.], it would be expected that he would have had significant symptomatology prior to the reported onset of symptoms in 1981. Referring to the October 1993 VA examination report, when it was noted the Veteran had received repeated injections (possibly cortisone injections) for his shoulder problems, the examiner stated that repeat cortisone shots are known to hasten degenerative changes and tears, especially involving rotator cuffs. He opined that the Veteran's bilateral shoulder condition was more likely not related to his reported service-connected injuries. The examiner further added that Dr. W. C. H.'s opinion was typical of someone who responds to the request of a patient and that the opinion was provided without review/consideration of the Veteran's past medical records. April 2003 X-rays of the right shoulder revealed moderate degenerative changes to the glenohumeral joint and the AC joint. The humeral head rode somewhat high in relationship to the acromion, raising the additional possibility of rotator cuff tear. X-rays of the left shoulder revealed mild to moderate degenerative changes of the glenohumeral joint. The humeral head rode somewhat high on the glenoid, very suspicious for rotator cuff tear. An April 2003 Dr. R. L. P. outpatient treatment record notes the Veteran had significant arthritis in both his knees and shoulders, making his occupation (driving a truck) increasingly difficult. An April 2003 Dr. W. C. H. report noted that as long as the Veteran maintains a sedentary lifestyle, he does reasonably well. An October 2003 evaluation report by Dr. R. L. P. noted the Veteran has arthritis of the shoulders, reported to be service related. In an October 2003 letter from Dr. W. C. H. again noted that the Veteran initially injured his shoulders in July 1951 and has continued to have discomfort in both shoulders. It was noted that the Veteran has extreme difficulty with all activities requiring reaching, lifting, pushing or pulling. Dr. W.C.H. opined that the Veteran was permanently disabled with regard to his right shoulder, and that it was extremely doubtful the Veteran would ever be able to return to activities that require repetitive reaching, lifting, pushing or pulling with either extremity. In an April 2004 letter Dr. W. C. H. noted that the Veteran provided some STRs that showed his shoulders were injured in an accident in July 1951. It was noted that the Veteran has a permanent disability of both shoulders limiting his ability to lift, push, and pull with his arms. Since he was a truck driver, it was extremely difficult for him to continue in his employment. It was also noted that his left ankle becomes sore with periods of prolonged standing, walking or stair climbing. Based on review of past records as well as review of records since treatment by him, Dr. W. C. H. opined that the Veteran's bilateral shoulder disability was more likely than not related to the injury he sustained in July 1951. April 2004 X-rays revealed mild to moderate degenerative changes of the left shoulder, and mild to marked degenerative changes of the right shoulder. In a July 2004 VA Form 21-8940, Application for Increased Compensation Based on Unemployability, the Veteran indicated that his bilateral shoulder disability prevents him from securing any substantially gainful occupation, and that he last worked in December 2003. December 2004 Workers' Compensation records reveal the Veteran sustained injuries in a fall from a landing. He complained of pain in the lumbosacral spine, right shoulder, right knee, right hip, right ankle, right hand, and the right side of his chest and head. The diagnoses included (in pertinent part) right shoulder synovitis/bursitis and right shoulder contusion/sprain. A January 2005 report of outpatient treatment by Dr. R. L. P. notes the Veteran had a Workers' Compensation related injury in December 2004 (after returning to work). A May 2005 right shoulder MRI revealed rotator cuff tear and osteoarthritis of the glenohumeral joint and of the AC joint. An August 2005 outpatient treatment report notes the Veteran was suffering from rotator cuff tendinitis and had responded well to cortisone injections in the past. A September 2005 Dr. E. A. V. report notes that the Veteran's restrictions limited him to sitting work only. The evidence shows that the Veteran worked until February 2004, and then stopped working (due to an exacerbation of injuries from a December 2003 work-related injury) until December 2004, and was then reinjured shortly thereafter in December 2004 and had not worked since. See December 2005 treatment report by Dr. H. R. W. The report also notes that the Veteran was capable of performing modified duties with temporary restrictions to sedentary work only. A January 2006 report by Dr. H. R. W. noted that the Veteran suffered a nonindustrial injury to both shoulders in June 1951 when he was run over by a car. The Veteran reported that he had a full recovery with no settlement or disability. It was also noted that the Veteran suffered a nonindustrial injury to the left shoulder in November 2000. The Veteran reported he had not fully recovered and still has residual pain; he denied any settlement or disability. An October 2006 operative report shows the Veteran underwent spinal surgery for L3 to S1 lumbar spinal stenosis and spondylolisthesis. A May 2007 treatment record from Dr. P. M. B. notes that the Veteran fell the day before and injured the right side of his body. He complained of bruises to his right knee, right hand, and right shoulder. The diagnosis was multiple contusions status post mechanical fall. On March 2008 VA examination, it was noted that the Veteran sustained an injury in 2004 when he fell off a dock, and that he had last worked in December 2004. Upon review of the Veteran's claims file (and noting there was no shoulder treatment through the 1950s, 1960s, and early to mid 1970s, there were no upper extremity complaints at separation, and there was a job-related injury in 2004), the examiner opined that the Veteran's shoulder disabilities were more likely not related to his service, and specifically the July 1951 injury he sustained therein. Later in the examination report the examiner opined that the Veteran's right and left shoulder abnormalities were more likely than not related to the Veteran's service, and specifically the July 1951 injury he sustained therein. A February 2008 MRI of the right shoulder revealed, among other things, marked atrophy of the rotator cuff, severe degenerative glenohumeral joint disease, and severe degenerative AC joint disease. In an October 2008 treatment report Dr. H. R. W. noted that there were significant degenerative findings on the Veteran's cervical x-rays, his lumbar MRI scan, and his right knee MRI scan, which contributed to his overall disability/impairment. Dr. H.R.W. also opined that the Veteran's injury in May 2007 was related to his lower back injury which caused his right leg to give out, and thereby caused worsening of his right shoulder and right hand. Due to his right upper extremity disability, the Veteran was deemed precluded from repetitive work at, above, or below shoulder level. And for his right lower extremity, the Veteran was instructed to be non-weight bearing for 4 hours in an 8 hour workday, and precluded from repetitious kneeling, squatting, and climbing. On August 2009 VA examination, after reviewing the Veteran's claims file, the examiner noted that there was no indication of [postservice] symptoms, complaint, or treatment for the Veteran's shoulders until possibly in 1981. The examiner opined that the condition of the Veteran's shoulders is more likely not related to his reported service-connected injuries. However, the examiner (who was also the March 2008 VA examiner) further stated that his conclusions from the March 2008 VA examination remained unchanged. He opined, as on the March 2008 examination, that the Veteran's right and left shoulder abnormalities are more likely than not related to the Veteran's service, specifically the July 1951 injury he sustained therein. The examiner further opined that it was beyond medical probability that a Veteran can develop significant symptoms after at least 40 years, almost 50 years, after the nature of the injury he sustained in 1951. In April 2010, because of the noted inconsistencies/contradictions in the VA examiner's opinions, the Board again remanded the matters for clarification of the opinions. In a May 2010 VA examination addendum opinion, the examiner, after review of the Veteran's claims file, opined that the Veteran's current shoulder disability "is less likely as not (less [than] 50/50 probability) caused by or related to his service, and specifically the July 1951 injuries he sustained therein." (emphasis added). It was noted that the opinion was based on the Veteran's history and the lack of treatment through the 1950s, 1960s, and early to mid-1970s regarding his shoulder disability. In addition, there are multiple entries at the time of discharge that indicate there were no shoulder abnormalities. C. Legal Criteria and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Bilateral Shoulder Disability Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. Certain chronic diseases (including arthritis) may be presumptively service connected if manifested to a compensable degree in a specified period of time postservice (one year for arthritis). 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In order to establish service connection for a claimed disability, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. 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 an evaluation of its credibility and probative value. 38 C.F.R. § 3.303(a); Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination in the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA 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 the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The record shows that the Veteran's bilateral shoulder injury in service was acute, superficial in nature, and resolved. After his initial treatment following the injury, he was not seen again for follow-up for shoulder injury, and there was no mention of shoulder complaints/findings in later STRs or on service separation examination. While he reported on September 1955 examination in service that he had bone, joint or other deformity, it was noted that his complaints pertained to his lower extremities, namely his left knee and foot. Notably, he denied painful or "trick" shoulder or elbow. Moreover, on January 1956 service separation examination, the upper extremities were normal on clinical evaluation. As there is also no evidence that arthritis of the shoulders was manifest in the first postservice year, service connection for a bilateral shoulder disability on the basis that such disability became manifest in service and persisted (see 38 C.F.R. § 3.303) or on a presumptive basis (for arthritis of the shoulders as a chronic disease under 38 U.S.C.A. §§ 1112, 1137) is not warranted. To the extent that the attempts to substantiate his claim for service connection for shoulder disability by his more recent accounts of continuity of symptoms since service, the Board finds those accounts not credible. They are contradicted by the more contemporaneous (and more probative) clinical data of record. Specifically, in August 1990 private chiropractic records noted that the Veteran's shoulder problems were "new"; in a September 1993 letter Dr. L.C. noted that he first saw the Veteran in 1991 (with the Veteran reporting onset of intermittent shoulder pain in 1983 and continuous pain since 1988); and on October 1993 VA examination it was noted that the Veteran's problems began in 1993 (involving primarily the right shoulder). The Board notes that the credibility of these accounts is not enhanced by virtue of their repetition by the private medical provider who has submitted statements on the Veteran's behalf; the provider does not cite to any evidence of continuity of shoulder symptoms after service/prior to the 1980's other than the Veteran's accounts. The Veteran may still establish service connection for his bilateral shoulder disability if there is affirmative evidence that relates it to an event or injury in service. There are conflicting medical opinions in the matter of a nexus between the Veteran's bilateral shoulder disability and his service. In evaluating medical opinions, the Board may place greater weight on one medical professional's opinion over another's depending on factors such as reasoning employed by the medical professionals, and whether or not and to what extent they review prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 336 (1994). In weighing the respective medical opinions, the Board concludes that the February 2002 and May 2010 VA examiner's opinions, together, merit the greater probative weight. These opinions describe the Veteran's disability in sufficient detail, provide rationale for the conclusions reached, and the opinions are based on a familiarity with the Veteran's accurate medical history along with examination findings and interviews of the Veteran. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Board notes that the May 2010 VA opinion-provider had previously examined and interviewed the Veteran in March 2008 and August 2009. However, as was noted above, the examination reports were internally inconsistent, and therefore inadequate. The February 2002 examiner observed that if the Veteran had sustained significant injuries to his shoulders as a result of the July 1951 accident, it would have been expected that he would have had significant symptomatology prior to 1981. The examiner also observed that repeat cortisone shots, which the Veteran had received for his shoulders, can hasten onset or progression of degenerative changes and tears, especially involving rotator cuffs. Based on this reasoning, the February 2002 examiner concluded that the Veteran's bilateral shoulder disability was more likely not related to his service-connected injuries. The May 2010 examiner, also noting the lack of treatment for the Veteran's bilateral shoulder disability for several years after service, and that there was no finding of shoulder abnormality at discharge from service, opined that the Veteran's bilateral shoulder disability was less likely as not caused by or related to his service, specifically including as due to the injuries he sustained in July 1951. The Board places little probative value on the October 2003 private opinions (by Drs. R. L. P. and W. C. H.); as they are merely conclusions without explanation of rationale. See Stefl, 21 Vet. App. at 123 (finding that "a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor's opinion"); see also Miller v. West, 11 Vet. App. 345, 348 (1998). While the private opinions conclude that the Veteran's bilateral shoulder disability is related to his service, they do not explain why they believe this to be so. Unlike the February 2002 and May 2010 VA opinions, the private opinions do not provide any explanation for their conclusions that the Board could weigh against the contrary opinions of record. They do not provide sufficient detail and rationale to allow the Board to make a fully informed decision as to whether the Veteran's bilateral shoulder disability is related to his service. See Stefl, 21 Vet. App. at 123. Accordingly, the Board finds that the October 2003 private nexus opinions are of lesser probative value than the February 2002 and May 2010 VA opinions. The Board finds that the February 2002 and May 2010 VA opinions have greater probative weight than the August 2001 and April 2004 private opinions by Dr. W. C. H.. As was noted above, both of these VA examiners expressed familiarity with the Veteran's complete/accurate medical history. In contrast, the August 2001 and April 2004 private opinions do not reflect such familiarity with accurate clinical data; Dr. W.C.H. noted in this later opinion that he viewed a service record noting the Veteran was involved in an accident (and appears to have accepted at face value the Veteran's accounts of continuing shoulder symptomatology ever since). As was noted above, those accounts are not credible. Significantly, Dr. W.C.H. does not account for/discuss the significance of such factors as the absence of shoulder complaints (and normal upper extremities on clinical evaluation) at separation; the lengthy postservice interval prior to the initial clinical notation of shoulder complaints (beginning no earlier than the early 1980's); or that steroid injections provided in treatment may have aggravated the disability. Also, the February 2002/May 2010 VA opinion- providers offered their opinions that the Veteran's bilateral shoulder disabilities are unrelated to his service in less equivocal terms than in the August 2001 private opinion (which is phrased in terms that are speculative, i.e., "[I]t is entirely within the realm of medical probability that his shoulder complaints were caused by the original injury sustained in 1951."). (emphasis added). See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical evidence that is speculative, general, or inconclusive cannot be used to support a claim). The Veteran is competent to provide lay evidence as to his observation of bilateral shoulder symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, he is not competent to establish by his own statements that his bilateral shoulder disability is related to his service/injuries therein, as nexus between a current disability and a remote injury (in the absence of demonstrated continuity of symptoms) is a medical question beyond the realm of lay observation. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); Jandreau v. Nicholson, 492 F.3d 1372, 1374 (Fed. Cir. 2007). In light of the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim. Therefore, the benefit of the doubt rule does not apply, and service connection for a bilateral shoulder disability must be denied. TDIU VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). For those Veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), total disability ratings for compensation may nevertheless be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability; such cases should be referred to the Director, Compensation and Pension Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). For a Veteran to prevail on a total rating claim, the record must reflect some factor which takes the claimant's case outside the norm. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1996); 38 C.F.R. §§ 4.1, 4.15. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. . . . The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See 38 U.S.C.A. § 4.16(a); Van Hoose, 4 Vet App. at 363. Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose, 4 Vet. App. at 363. Thus, the Board may not consider the effects of the Veteran's nonservice-connected disabilities on his ability to function. The Veteran's service-connected disabilities are osteochondritis right knee, rated 10 percent; residual fracture left knee, rated 10 percent; tinnitus, rated 10 percent; residual fracture left ankle, rated 10 percent; right leg scar, rated 0 percent; and hearing loss, rated 0 percent, for a combined rating of 40 percent. Accordingly, the above-outlined schedular criteria for TDIU under 38 C.F.R. § 4.16(a) are not met. Hence, the analysis progresses to consideration of 38 C.F.R. § 4.16(b), and a determination as to whether referral for extraschedular consideration is warranted, i.e., the Board must determine whether the Veteran is unemployable due to his service-connected disabilities regardless of their rating. 38 C.F.R. § 4.16(b) provides that it is established VA policy that "all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled." However, in these cases, in order for the Veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some circumstance which places the claimant in a different position from other veterans with the same rating. Here, the RO has determined that the factors warranting referral for extraschedular consideration are not shown. The Board agrees that the evidence fails to show that the service-connected disabilities are exceptional or unusual. The record does not show frequent periods of hospitalizations for his service- connected disabilities; furthermore, the factual evidence does not support a finding that the Veteran is demonstrably unable to obtain or maintain employment due to his service-connected disabilities. The evidence does show that the Veteran's service- connected bilateral knee disabilities, along with his service- connected left ankle disability, cause difficulties with employment that requires repetitive or prolonged kneeling, squatting, and/or climbing, and impact on his previous occupation as a truck driver. However, the evidence does not show that his service-connected disabilities, alone, render him incapable of obtaining/maintaining any regular employment, including of a sedentary nature. Significantly, treatment records show that the Veteran is able to perform sedentary employment, albeit with some restrictions (due largely to nonservice-connected disabilities, particularly a bilateral shoulder disability and a back disability). See, e.g., Dr. H. R. W. October 2008 treatment report (finding that for his right upper extremity, the Veteran was deemed precluded from repetitive work at, above, or below shoulder level). For the reasons noted above, the Board finds that the preponderance of the evidence is against a finding that the Veteran is unemployable due to his service-connected disabilities. Accordingly, his claim for TDIU must be denied. ORDER Service connection for a bilateral shoulder disability is denied. A TDIU rating is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs