Citation Nr: 1300366 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 09-16 060 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa THE ISSUE Entitlement to an increased disability rating for a left knee disability, rated as 20 percent disabling prior to June 2006, and as 30 percent disabling from August 2007, to include specific consideration of a total disability rating based upon individual unemployability, to be considered on an extra-schedular basis under the provisions of 38 C.F.R. § 4.16(b). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran served on active duty from November 1942 to November 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2006 and September 2007 RO decisions. The Veteran presented sworn hearing testimony during a May 2010 videoconference hearing before the undersigned Acting Veterans Law Judge. In a June 2010 decision, the Board denied increased ratings for a left knee disability, rated as 20 percent disabling prior to June 2006, and as 30 percent disabling effective in August 2007, after a period of a temporary total disability rating following total knee replacement surgery. In this same document, the Board also remanded appeals for an increased disability rating for the Veteran's service-connected right knee disability, special monthly compensation based upon housebound status, and a compensable disability rating for residuals of a right fourth finger. These active matters remain in remand status and have not yet been addressed by the RO. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2011 Order, the Court approved a joint motion for remand filed by both parties to the case, vacated the Board's June 2010 decision as to issue involving the Veteran's left knee disability rating, and remanded the matter to the Board for further development and review. After appropriate notification to the Veteran and his representative, the Board remanded the matter to the RO in December 2011. The requested evidentiary development having been completed, the matter has been returned to the Board for further appellate review. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2). FINDINGS OF FACT 1. Prior to June 13, 2006 the Veteran's left knee disability was manifested by pain, severe degenerative arthritis, some limited flexion, and complaints of stiffness. 2. From August 1, 2007, the Veteran's left knee disability is manifested by a total knee replacement, well-healed scar, pain after prolonged activity and some limited flexion. CONCLUSIONS OF LAW 1. Prior to June 13, 2006, the criteria for a rating greater than 20 percent for a left knee disability are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.14, 4.40, 4.45, 4.68, 4.69, 4.71a, Diagnostic Codes (DCs) 5258, 5260 and 5261 (2012). 2. From August 1, 2007, the criteria for a rating greater than 30 percent for a left knee disability, status-post a total knee replacement, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.14, 4.40, 4.45, 4.69, 4.71a, Diagnostic Code (DC) 5055 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to notify and assist When an application for benefits is received, VA has certain notice and assistance requirements under the law. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). First, proper notice must be provided to a claimant before the initial VA decision on a claim for benefits and must: (1) inform the claimant about the information and evidence not of record necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The VA is also required to inform the Veteran of how the VA assigns disability ratings and effective dates. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). This information was provided in an August 2008 letter. With regard to the VA examination reports which are of record, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations obtained in this case are adequate with regard to the issues decided herein. The examination reports relied upon herein were predicated on a review of the claims folder and the relevant medical records contained therein; contain a description of the history of the disability at issue; and document and consider the Veteran's complaints and symptoms. The examiners considered the available pertinent evidence of record, and provided a rationale for the opinions rendered, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). Service treatment records, VA medical records reflecting the entire time period at issue, and VA examination reports have been obtained and reviewed in support of the Veteran's claims. All relevant records and contentions have been carefully reviewed, including all records contained in the Veteran's physical paper file and in his virtual VA electronic file. The Board therefore concludes that the VA's duties to notify and assist have been met with regard to the matters decided herein. Standard of review Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C.A. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board must consider all the evidence of record and discuss in its decision all "potentially applicable" provisions of law and regulation. See 38 U.S.C. § 7104(a); Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). The Board is also required to provide a statement of reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for its decision, as well as to facilitate further appellate review. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert, 56 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Analysis Disability evaluations are assigned to reflect levels of current disability. The appropriate rating is determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating claims for increased ratings, the Board must evaluate the Veteran's condition with a critical eye toward the lack of usefulness of the body or system in question. 38 C.F.R. § 4.10. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. §§ 4.1, 4.41; Peyton v. Derwinski, 1 Vet. App. 282 (1991). However, where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, regulations do not give past medical reports precedence over current findings. 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55 (1994). Because the level of a veteran's disability may fluctuate over time, the VA is required to consider the level of the veteran's impairment throughout the entire period. In this respect, staged ratings are a sensible mechanism for allowing the assignment of the most precise disability rating-one that accounts for the possible dynamic nature of a disability while the claim works its way through the adjudication process. O'Connell v. Nicholson, 21 Vet. App. 89 (2007). In another relevant precedent, the Court noted that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the joints, including the spine, is measured by abnormalities of motion, such as limitation of motion or hypermobility, instability, pain on motion, or the inability to perform skilled motions smoothly. 38 C.F.R. § 4.45. Painful motion with joint or periarticular pathology and unstable joints due to healed injury are recognized as productive of disability entitled to at least a minimal compensable rating for the joint. 38 C.F.R. § 4.59. Under section 4.59, painful motion is considered limited motion even though a range of motion is possible beyond the point when pain sets in. Hicks v Brown, 8 Vet. App. 417, 421 (1995). In evaluating claims for increased ratings, we must evaluate the veteran's condition with a critical eye toward the lack of usefulness of the body or system in question. 38 C.F.R. § 4.10. A disability of the musculoskeletal system is measured by the effect on ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Weakness is as important as limitation of motion in assigning the most accurate disability rating. 38 C.F.R. § 4.40. Although § 4.40 does not require a separate rating for pain, it does provide guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. The Board has a special obligation to provide a statement of reasons or bases pertaining to § 4.40 in rating cases involving pain. Spurgeon v. Brown, 10 Vet. App. 194 (1997). Initially, the Veteran's left knee disability was rated 20 percent under Diagnostic Code (DC) 5258 for cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, DC 5258. The 20 percent disability rating is the only rating available under DC 5258. The Veteran underwent a total knee replacement in June 2006 and was awarded a temporary total rating for surgical convalescence until August 2007. Thus, from August 1, 2007, the Veteran's disability is rated under Diagnostic Code 5055 for knee replacements (prosthesis). 38 C.F.R. § 4.71a, DC 5055. DC 5055 allows for a rating of 100 percent for one year following implantation of prosthesis. Thereafter, the Code provides for a minimum rating of 30 percent. A 60 percent rating is warranted where there are chronic residuals consisting of severe painful motion or weakness in the affected extremity. The knee may also be rated by analogy using Diagnostic Codes 5256 (ankylosis of the knee), 5261 (limitation of extension) or 5262 (impairment of the tibia and fibula) if they provide for a rating greater than the 30 percent minimum. In regard to DC 5261 (limitation of extension), normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5261, a 30 percent disability rating is assigned for extension limited to 20 degrees. A 40 percent disability rating is assigned for extension limited to 30 degrees; and a 50 percent disability rating is assigned for extension limited to 45 degrees. 38 C.F.R. § 4.71a. Prior to June 13, 2006 The Veteran filed a claim seeking entitlement to an increased rating for his left knee disability in February 2006, indicating he was planning to undergo a total knee replacement in June 2006. There is very little medical evidence from February 2006 to June 2006 indicating the pre-surgical severity of the Veteran's left knee. The Board notes that VA must consider all the evidence of record to determine when an ascertainable increase occurred in the rated disability. See Hazan v. Gober, 10 Vet. App. 511 (1997). In this case, however, clearly evidence dated after June 2006 is irrelevant to the severity of the Veteran's disability prior to his June 2006 surgery. VA outpatient treatment records merely indicate that the Veteran complained of increased pain and limited motion leading up to his surgery. At that time, the Veteran's principal diagnosis was severe degenerative arthritis of the left knee. Prior to that time, the Veteran was afforded a VA examination in July 2003 during which the examiner noted the Veteran's complaints of chronic pain, swelling and stiffness. The examiner found no evidence of locking, instability, or redness. The examiner further noted no history of surgery and no use of assistive devices. Range of motion testing indicated flexion limited to 120 degrees with normal extension even on repetition. The examiner noted mild pain at the extreme levels of motion, but no further limitation on repetition or due to pain, weakness, fatigue or lack of coordination. The Veteran at that time indicated he had a hard time climbing ladders or gardening. He also indicated he quit farming in 1991 due to his knees, but still golfed occasionally. The primary diagnosis at that time was semilunar dislocation of cartilage of the left knee, symptomatic with well-healed scar and x-ray evidence of degenerative joint disease (DJD). As indicated above, 20 percent is the highest disability rating available under DC 5258. No other diagnostic code would provide a higher rating for this time period. The other principal diagnosis of the Veteran's left knee prior to June 2006 was DJD of the left knee. Degenerative arthritis is rated under DC 5003, but DC 5003 does not provide for a rating greater than 20 percent. Range of motion testing during this time period would not warrant a rating greater than 20 percent under DC 5260 or DC 5261. There is also no evidence during this time period that the Veteran's left knee disability includes ankylosis (i.e. frozen) of the knee joint, instability, or impairment of the tibia and fibula or ankylosis of the knee joint. Accordingly, DC 5256, DC 5257 and DC 5262 are inapplicable. Functional loss was also considered. During this time period, the Veteran clearly has complaints of chronic pain, decreased mobility, swelling, stiffness and difficulty performing some everyday tasks. Specifically, he alleges during this time period, he had trouble climbing ladders, gardening, and driving. The Veteran's current rating compensates for manifestations such as "locking," pain, and effusion into the joint. See generally 38 C.F.R. § 4.71a, DC 5258. Accordingly, although functional loss is apparent in the medical evidence, the Board finds the 20 percent rating currently assigned compensates for such loss as is contemplated by the rating criteria. From August 1, 2007 As indicated above, the Veteran underwent a total knee replacement in June 2006 and was awarded a temporary total rating until August 1, 2007 pursuant to DC 5055. 38 C.F.R. § 4.71a, DC 5055. Thereafter, the Veteran was awarded a 30 percent rating, which is the minimum rating provided under DC 5055. Under DC 5055, a 60 percent rating is warranted where there are chronic residuals consisting of severe painful motion or weakness in the affected extremity. The knee may also be rated by analogy using Diagnostic Codes 5256 (ankylosis of the knee), 5261 (limitation of extension) or 5262 (impairment of the tibia and fibula) if they provide for a rating greater than the 30 percent minimum. Again, VA must consider all the evidence of record to determine when an ascertainable increase occurred in the rated disability. Hazan v. Gober, 10 Vet. App. 511 (1997). Here, evidence related to the Veteran's June 2006 surgery and subsequent recovery, although prior to August 1, 2007, is relevant to the current severity of the Veteran's condition and has been considered here. Two months after surgery, the Veteran was afforded a VA examination in August 2006 where the examiner noted the recent total knee replacement. At that time, the examiner found a well-healing, asymptomatic superficial scar. The Veteran's left knee included moderate swelling with no tenderness. Range of motion testing revealed flexion limited to 90 degrees, extension limited to 10 degrees with pain at the extremes, but no additional loss on repetition. VA outpatient treatment records indicate a follow-up appointment in November 2006 reflecting left knee flexion limited to 90 degrees, with full extension. The Veteran was most recently afforded a VA examination in September 2009 where he complained of pain after prolonged walking or standing and difficulty with stairs, but indicated he was again able to drive with no problems. The examiner did not objectively observe any tenderness, swelling, catching or locking of the left knee and the Veteran denied the same. The examiner noted a well-healed scar that does not cause limitation of motion. Range of motion testing revealed flexion limited to 115 degrees with normal extension and no further limitations on repetition or due to pain, weakness, fatigue, or lack of coordination. The examiner further indicated normal ligaments. Recent VA outpatient treatment records in 2010 indicate the Veteran reported both knees are "doing great." Records obtained subsequent to the December 2011 remand reflect that the Veteran's left knee prosthesis continues to be well-seated and that he continues to have good range of motion. He uses a cane now, secondary to some instability unrelated to his knees. He reports that his legs get stiff with standing for long periods of time, or driving for long periods, and that he has limited some of his activities. In short, the Veteran's left knee disability from August 1, 2007 is primarily manifested by pain and limitation of motion. The medical findings, however, are not consistent with "severe" chronic residuals of painful motion or weakness. Rather, the most recent medical evidence describes the Veteran's disability as "moderate," which is not consistent with findings necessary to support a 60 percent rating under DC 5055. As noted, Diagnostic Code 5055 also provides for ratings greater than 30 percent if appropriate under diagnostic codes 5256 (ankylosis of the knee), 5261 (limitation of extension), or 5262 (impairment of the tibia and fibula) by analogy. Just as during the prior time period, the Veteran's left knee is not currently ankylosed, nor does it involve impairment of the tibia and fibula. Therefore DCs 5256 and 5262 are inapplicable. The Board further notes that the medical evidence indicates ligaments are within normal limits and, therefore, DC 5257, for recurrent subluxation or lateral instability is also not for application. The Veteran's range of motion testing during this time period, moreover, does not show flexion limitation worse than 90 degrees or extension limitation worse than 10 degrees. Accordingly, an increased rating under DC 5250 or DC 5261 is also not for application. The Board notes that functional loss was also considered for this time period. The Veteran again complained of some functional limitations, to include pain after prolonged walking or standing and difficulty with stairs. It appears the Veteran has improved functioning, though, to include regaining the ability to drive with no problems. The Veteran denied any swelling, catching or locking of his knees and the examiner found no further loss of motion of the left knee due to repetition, pain, weakness, fatigue or incoordination. It appears, in fact, that the Veteran had a good result from his left knee replacement surgery. The Board finds no evidence of functional loss above and beyond that which is contemplated by his current 30 percent rating. Extra-Schedular Rating under 38 C.F.R. § 3.321(b)(1) In denying the claim for a higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three- step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected left knee is inadequate. A comparison between the level of severity and symptomatology of the Veteran's left knee disability with the established criteria found in the rating schedule for knee disabilities shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology. The Board further observes that, even if the available schedular evaluation for the disabilities are inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." Prior to June 13, 2006, the Veteran's left knee did not require frequent hospitalizations or surgeries. Indeed, the Veteran did not even use any assistive devices for his left knee. After his total knee replacement in June 2006, the Veteran reports his knee is "doing great" and still does not require he use any assistive devices on a regular basis. Clearly his left knee impairs his ability to perform some physically laborious tasks, but this is already contemplated in the diagnostic criteria under which his disability is evaluated. There is no evidence in the medical records of an exceptional or unusual clinical picture. In short, there is nothing in the record to indicate that the Veteran's left knee causes impairment over and above that which is contemplated in the assigned schedular rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the disability rating itself is recognition that industrial capabilities are impaired]. The Board therefore has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. As shown above, and as required by Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991), the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran. In this case, the Board finds no provision upon which to assign a rating greater than 20 percent for the left knee prior to June 13, 2006 or a rating greater than 30 percent for the left knee from August 1, 2007. Extra-schedular TDIU rating under 38 C.F.R. § 4.16(b) The authors of the joint motion agreed that "remand is warranted for the Board to address whether Appellant's retirement from farming was due to service-connected left and right knee conditions." [Joint motion for partial remand, p. 3] Given that the issue of the disability rating to be assigned to the Veteran's right knee was not before the Court, and thus cannot, by definition, be the subject of the Court's Order approving the joint motion for remand, the Board has construed the joint motion for remand as involving the matter of the Veteran's left knee only. The authors of the joint motion, and by extension, the Court, agreed that in the June 2010 decision, the Board failed to develop or address whether the Veteran is rendered unable to secure and follow a substantially gainful occupation by reason of his service-connected left knee disability regardless of the fact that his overall combined disability ratings do not meet the percentage standards set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). Upon remand, therefore, the Board attempted to obtain further information as to when and why the Veteran retired from farming, and also a medical opinion as to the impact of his left knee function upon his chosen profession throughout the years. The effect of a service-connected disability is measured differently for purposes of extraschedular consideration under 38 C.F.R. § 3.321(b)(1), which provides for extraschedular consideration where there is marked interference with employment, than in cases of an unemployability claim under 38 C.F.R. § 4.16(b), which provides for extraschedular consideration when a Veteran is unemployable by reason of service-connected disabilities that do not meet certain percentage requirement but is unable to secure and follow a substantially gainful occupation by reason of such service-connected disabilities. Kellar v. Brown, 6 Vet. App. 157 (1994). In other words, 38 C.F.R. § 3.321(b)(1) and 4.16(b) contain independent and differently-measured evaluations involving employability. Subsequent Court precedent has clarified that an extra-schedular unemployability rating under the provisions of 38 C.F.R. § 4.16(b) requires establishing an inability to obtain or retain employment, as compared to the lower standard of showing marked interference with employment set forth for an extra-schedular rating under 38 C.F.R. § 3.321(b)(1). Additionally, a VA General Counsel Opinion explains that a claimant's assertion of unemployability does not inherently represent an assertion that schedular ratings are inadequate pursuant to 38 C.F.R. § 3.321(b)(1). G.C. Prec. 6-96, para. 9. When the facts of a case present both the question of entitlement to an extraschedular unemployability rating under 38 C.F.R. § 4.16(b) and entitlement to an extraschedular rating for a service-connected disability under 38 C.F.R. § 3.321(b)(1), the Board is required to discuss the applicability of both regulations. Kellar. In the instant case, however, the joint motion for remand focused upon the question of entitlement to an extraschedular unemployability rating under 38 C.F.R. § 4.16(b), and did not challenge the Board's treatment of the extra-schedular claim under 38 C.F.R. § 3.321(b)(1). The evidence of record is somewhat contradictory as to when and why the Veteran retired from farming. An April 2000 treatment note reflects that the Veteran retired from farming in 1985. The same treatment note reflects that the Veteran had been playing golf earlier that week, lending credence to a conclusion that he was at least semi-retired. A July 2003 VA examination report reflects the Veteran's report that he quit farming in 1991 on account of arthritis in both knees. A May 2003 treatment note identifies the Veteran as an "82-year-old semi-retired farmer." In response to the December 2011 remand, the Veteran submitted the following statement: "I partially retired from farming at the age of 62 and started drawing Social Security. I fully retired in 1991 at the age of 69 and moved off the farm to town. My knees were arthritic and it became difficult to climb in and out of farm equipment." A VA medical opinion based upon a complete records review was obtained in February 2012. The reviewing physician noted the above records and also noted a 2003 medical record in which the Veteran reported that he wanted to continue helping his son on the farm, especially during the growing season, although his knee pain was worsening. The physician reviewed the X-ray reports and the orthopedic records over the years, and provided the following pertinent discussion: From [the x-ray reports] we can see that [the Veteran] had mild arthritis of the right knee and more marked osteoarthritis of the left knee as of 1998. Prior to that the Veteran has stated having minimal knee problems. So we could opine that the more marked osteoarthritis findings on the left, that is would impair his ability to farm as of 1998. It would limit his walking and prolonged standing, and also ability to do anything more than light lifting. Also he would have problems with manual or labor intensive jobs on the farm, such as farm chores, feeding cattle, baling hay, carrying [pails] of feed or seed, scooping, leveling grain, walking or standing on uneven surfaces, etc. He would have been limited then to light to sedentary work at that time. By 10-21-99 his X-rays show advanced degenerative narrowing of the medial joint compartment on the left and this would have limited his activity to sedentary chores, and very light yard work, such as a riding lawn mower for short periods and very limited use of vehicles/tractors etc. He would have been limited by environmental factors then such as working out in the cold. The physician further offered the opinion that the Veteran would have been unable to farm after his knee replacement procedures in 2006. After reviewing the entire evidence of record, the Board concludes that the Veteran did not retire from farming on account of left knee impairment. The Veteran himself identifies his "semi-retirement" in 1983 when he began drawing Social Security retirement benefits, meaning that he no longer relied upon farming to be his substantially gainful occupation, as he had that alternative source of income. He also identifies his full retirement as occurring in 1991, when he moved away from the farm and into town. As late as 2003, however, his medical records show that he assisted his son in working on the farm. The Board recognizes the nature of a family farm as representing a way of life and more than simply an income. The comparison to the "substantially gainful occupation" described in 38 C.F.R. § 4.14 is thus somewhat indirect; nevertheless, 38 C.F.R. § 4.14 is the governing regulation which must be applied here. Furthermore, the VA is responsible for attempting to apply the governing laws and regulations equally and equitably so as to ensure fair treatment for all similarly-situated Veterans. 38 U.S.C.A. § 7104. Toward this end, the rating schedule is intended to measure the "average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations." 38 C.F.R. § 4.1. Thus, one particular occupation does not warrant special/additional compensation versus another occupation. The Veteran indicates he retired from farming in 1991 due to his knees, but there is no indication he was precluded from any other type of employment due to his knees. In this regard, we observe that the biggest difference between an extra-schedular disability rating under 38 C.F.R. § 3.321(b)(1) and 38 C.F.R. § 4.16(b) is that the first may be assigned in cases where a recipient is fully employed, but that his or her earning potential is reduced in some way or "markedly interfered" with due to a service-connected disability. The second, however, may only be assigned in cases where a recipient is not working at all-unable to secure and follow a substantially gainful occupation. In this case, the evidence indicates that his retirement from farming was timed on account of other factors, most importantly, his eligibility for Social Security retirement benefits. The medical evidence and the informed orthopedic opinion indicates that his left knee problems would have started to interfere with his ability to farm around 1998, after he had "fully retired" and moved away from the farm and into town. The fact that he assisted his son in running the farm would appear to the reasonable fact-finder, to represent the special nature of the family farm and all that way of life embodies, rather than a substantially gainful occupation on the part of the Veteran. The preponderance of the evidence is thus against the assignment of an extraschedular total disability rating under the provisions of 38 C.F.R. § 4.16(b) on account of impairment related to the Veteran's left knee at any point during the time frame that this appeal has been ongoing. The appeal must therefore be denied. ORDER For the period prior to June 13, 2006, entitlement to an evaluation in excess of 20 percent for left knee disability is denied. For the period from August 1, 2007, entitlement to an evaluation in excess of 30 percent for left knee disability status post total knee replacement is denied. ____________________________________________ J. K. Barone Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs