Citation Nr: 1301247 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 06-21 501 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for service-connected chondromalacia of the patella with anterior cruciate ligament injury and patellar tendinopathy of the left knee. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran had active service from September 1978 to October 1986. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2003 rating decision of the Cleveland, Ohio, Department of Veterans Affairs (VA) Regional Office (RO), that granted service connection for a left knee disability and assigned a noncompensable rating effective March 27, 2003. The Veteran appealed for a higher rating. In a March 2005 rating decision, the RO increased the rating for the left knee disability to 10 percent, effective November 19, 2004. The Veteran appealed for an earlier effective date for the assignment of the 10 percent rating. Further, as this increase did not represent the maximum rating available, that issue remained in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). In an April 2006 rating decision, the RO granted an earlier effective date of August 19, 2002, for the award of service connection for the left knee disability and for the assignment of the 10 percent rating. Because that decision represented a full grant of benefits sought with respect to the effective date, that matter was no longer before the Board. In July 2010, the Board remanded the appeal, to include the raised issue of entitlement to total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, for further development. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). As the appeal involved a request for a higher initial rating following the grant of service connection, the Board characterized the rating issue in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran relocated several times during the pendency of the appeal. Jurisdiction over the case now resides at the RO in Wichita, Kansas. FINDINGS OF FACT 1. Since the August 19, 2002, date of service connection, the Veteran's service-connected chondromalacia of the patella with anterior cruciate ligament injury and patellar tendinopathy of the left knee has been manifested by flexion limited to at most 60 degrees and extension limited to at most 5 degrees. 2. The Veteran is service-connected for a left knee disability (rated at 10 percent), tinnitus (rated at 10 percent), and hearing loss (rated at 0 percent), for a combined evaluation of 20 percent. 3. The Veteran's service-connected disabilities, alone, do not preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 10 percent for chondromalacia of the patella with anterior cruciate ligament injury and patellar tendinopathy of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.3, 4.71a, Diagnostic Codes 5024, 5260, 5261 (2012). 2. The criteria for a TDIU, to include submission for extra-schedular consideration under 38 C.F.R. § 4.16(b), have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. § 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act (VCAA) Before addressing the merits of the issues of entitlement to an increased rating for a left knee disability and a TDIU, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) 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); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. With respect to the evaluation of the left knee disability, the claim arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. With respect to the TDIU claim, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. The Veteran was notified via letter dated in August 2010 of the criteria for establishing a TDIU, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates. This letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in April 2012. Next, VA has a duty to assist the veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, all necessary development has been accomplished and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. The Veteran's statements in support of the claims are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the claims. VA has provided the Veteran with examinations in September 2003, January 2005, January 2007, November and December 2010, and January 2012 to determine the nature and severity of his disabilities. 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to provide an examination or obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds the examination reports to be thorough and adequate upon which to base a decision with regard to the Veteran's claims. VA examiners personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to evaluate the disabilities at issue under the applicable rating criteria and to decide the TDIU claim. In the July 2010 remand, the Board requested that the RO obtain the Veteran's Social Security Administration (SSA) records, issue a VCAA notice letter on the issue of entitlement to a TDIU, and schedule the Veteran for a VA examination to determine whether his service-connected disabilities alone prevent him from securing and following a substantially gainful occupation. Accordingly, the RO obtained the Veteran's SSA records, issued the VCAA notice letter, and afforded him VA examinations in November and December 2010, and January 2012. The Board notes that records obtained from the SSA indicate the processing of a new claim in 2010. However, during the January 2012 VA examination, the Veteran stated that he had been found disabled by the SSA due to his bipolar disorder, which is neither service-connected nor on appeal. Accordingly, the Board finds that no further duty to assist in obtaining any additional SSA records is required to comply with the July 2010 remand. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Given the above, no further notice or assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Initial Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). However, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. See 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in Fenderson, 12 Vet. App. at 126, the Court noted an important distinction between an appeal involving a veteran's disagreement with the initial rating assigned at the time a disability is service connected. Where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required. Id. The analysis below is therefore undertaken with consideration of the possibility that different "staged" ratings may be warranted for different time periods. In this case, since the August 19, 2002, date of service connection, the Veteran's chondromalacia of the patella with anterior cruciate ligament injury and patellar tendinopathy of the left knee has been rated at 10 percent under Diagnostic Code 5024, which provides that the disability will be rated on limitation of motion of affected parts, as degenerative arthritis. 38 C.F.R. § 4.71a (2012). The Board notes that the RO granted the current 10 percent rating for painful or limited motion of a major joint, under Diagnostic Code 5003, 38 C.F.R. § 4.71. However, that code section requires x-ray evidence of arthritis, which as will be seen below is not the case here. Under Diagnostic Code 5260, a 10 percent rating requires limitation of flexion to 45 degrees, a 20 percent rating requires limitation of flexion to 30 degrees, and a 30 percent rating requires limitation of flexion to 15 degrees. Id. Under Diagnostic Code 5261, a 10 percent rating requires limitation of extension to 10 degrees, a 20 percent rating requires limitation of extension to 15 degrees, a 30 percent rating requires limitation of extension to 20 degrees, a 40 percent rating requires limitation of extension to 30 degrees, and a 50 percent rating requires limitation of extension to 45 degrees. Id. For VA purposes, normal extension and flexion of the knee is from 0 to 140 degrees. Plate II, 38 C.F.R. § 4.71 (2012). Separate ratings may be assigned based on limitation of flexion and limitation of extension of the same knee joint under Diagnostic Code 5260 and Diagnostic Code 5261, respectively. VAOPGCPREC 09-04 (September 17, 2004). Separate ratings may be assigned under Diagnostic Code 5257 for other knee impairment or 5258/5259 for cartilage impairment, and Diagnostic Code 5010, where there is x-ray evidence of arthritis in addition to recurrent subluxation, lateral instability, or symptoms of locking, pain, and effusion related to the removal or dislocation of semilunar knee cartilage, but only if there is additional disability due to limitation of motion. See VAOPGCPREC 23-97 (July 1, 1997) and VAOPGCREC 9-98 (August 14, 1998). When evaluating a loss of a range of motion, consideration is given to the degree of functional loss caused by pain. DeLuca v. Brown, 8 Vet. App. 202 (1995) (evaluation of musculoskeletal disorders rated on the basis of limitation of motion requires consideration of functional losses due to pain). In DeLuca, the Court explained that, when the pertinent diagnostic criteria provide for a rating on the basis of loss of range of motion, determinations regarding functional losses are to be "'portray[ed]' (38 C.F.R. § 4.40) in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Id. at 206. After a careful review of the record, the Board finds that a higher initial rating is not warranted for the Veteran's left knee disability. A September 2003 VA examination report reflects complaints of pain, crepitus, swelling, and giving way of the left knee. Range of motion of the left knee was from 0 to 150 degrees. There was no instability. A January 2005 VA examination report reflects complaints of pain and instability. Range of motion was from 0 to 60 degrees, with pain at 60 degrees. Drawer test showed slight to mild laxity. McMurray test was normal. X-rays were normal. A January 2007 VA examination report reflects complaints of pain, giving way, instability, stiffness, weakness, locking, and effusion as well as weekly flare-ups. Range of motion was from 0 to 120 degrees with no objective evidence of pain. Range of motion remained the same after repetitive use testing. An MRI was normal except for minimal prepatellar subcutaneous edema. A December 2010 VA examination report reflects complaints of pain, instability, weakness, giving way, locking, and fatigability as well as often daily flare-ups. Active range of motion was from 5 to 120 degrees and passive range of motion was from 0 to 120 degrees, with complaints of mild pain. Range of motion remained the same after repetitive use testing. The knee was stable. X-rays were normal. A January 2012 VA examination report reflects complaints of pain, crepitus, and giving way as well as flare-ups that require rest. Range of motion was from 0 to 135 degrees, with no objective evidence of painful motion. Range of motion remained the same after repetitive use testing, and the examiner indicated that there was no additional limitation in range of motion or functional loss/impairment following repetitive-use testing. Tests for instability were normal. The examiner indicated that x-rays do not show degenerative or traumatic arthritis. VA medical records essentially mirror the above. An August 2002 treatment note reflects complaints of left knee pain and giving way, and findings of full range of motion and no laxity. A July 2003 note reflects full range of motion and no laxity. A June 2004 note reflects range of motion from 0 to 110 degrees and no laxity, and that x-rays were normal. A May 2005 note reflects full range of motion, minimal crepitation, and no swelling, clicking, popping, or instability. X-rays were normal. An August 2005 MRI showed small joint effusion and mild chondromalacia but no evidence of ligament, tendon, or meniscus injury. A July 2006 note reflects good range of motion, and that x-rays were normal. An August 2006 note includes an assessment of degenerative joint disease of the left knee and subsequent notes carry a past medical history of same. Given the above, the Board finds that the objective clinical evidence demonstrates that the Veteran's left knee disability has been manifested by flexion limited to at most 60 degrees and extension limited to at most 5 degrees. Therefore, even considering the principles set forth in 38 C.F.R. §§ 4.40, 4.45 and 4.59, and DeLuca, supra, these findings do not support a compensable rating under either Diagnostic Code 5260 or 5261. As they do not even meet the criteria for a 0 percent rating under either code, neither a higher rating nor separate compensable ratings under Diagnostic Code 5260 or 5261 is warranted. See VAOPGCPREC 09-04. The Board has also considered whether any other applicable rating criteria may enable a higher and/or separate evaluation. However, after review, the Board finds the Veteran's disability is not manifested by symptoms required for higher and/or separate ratings under other diagnostic codes. The Board points out that the most probative evidence indicates that there is no x-ray evidence of arthritis. As detailed above, repeated x-ray studies have shown that the Veteran does not have arthritis in his knee joint despite clinical diagnoses to the contrary; and the Board finds the x-ray evidence to be more probative on the matter, particularly in light of the fact that the diagnostic code pertaining to arthritis specifically requires x-ray evidence to establish the presence of the disability. Moreover, the Board also finds that a separate rating based on recurrent subluxation or lateral instability of the knee is not warranted because such symptomatology has not been clinically demonstrated. Although one VA examination in January 2005 noted mild laxity based on the Veteran's complaints of giving way, ligament testing has been consistently within normal limits with no evidence of recurrent subluxation or lateral instability. Accordingly, a separate rating under Diagnostic Code 5257 may not be assigned. Finally, there is no evidence that the Veteran's disability is manifest by malunion or nonunion of the tibia and fibula. Hence, a separate or higher rating under Diagnostic Code 5262 is also not warranted. In reaching its decision, the Board has considered the Veteran's statements and the medical evidence in his file. The Board finds that the Veteran is competent to report that he has pain and to observe and report any functional limitations. However, here, the clinical evidence pertaining to the Veteran's knee disability is more probative for the purposes of assigning a current rating for the disability at issue in conjunction with the relevant rating criteria - and the Board finds that the pain and functional impairment reported has been appropriately considered in assigning the current rating consistent with the documented symptoms. In this regard, the Board observes that the relevant VA examination reports were specifically tailored to address the symptoms pertaining to the knee disability, in contrast to any other disabilities that the Veteran may have. In conclusion, an initial rating in excess of 10 percent for chondromalacia of the patella with anterior cruciate ligament injury and patellar tendinopathy of the left knee is not warranted at any time during the rating period. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extra-Schedular The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2012). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is adequate. An evaluation in excess of that assigned is provided for certain manifestations of a service-connected left knee disability, but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder. As the rating schedule is adequate to evaluate the disability, referral for extra-schedular consideration is not in order. TDIU A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012). In this case, the Veteran is service-connected for a left knee disability (rated at 10 percent), tinnitus (rated at 10 percent), and hearing loss (rated at 0 percent), for a combined evaluation of 20 percent. Thus, he does not meet the above percentage standards of 38 C.F.R. § 4.16(a). Pursuant to 38 C.F.R. § 4.16(b), veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Such cases should be submitted to VA's Director of the Compensation and Pension Service for extra-schedular consideration when a veteran is unemployable by reason of service-connected disabilities, but fails to meet the percentage standards of 38 C.F.R. § 4.16(a). In such a submission, there should be a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. While the Board does not have the authority to grant a TDIU on an extra-schedular basis in the first instance, it may decide whether the claim should be referred to VA's Director of the Compensation and Pension Service for consideration of an extra-schedular rating. 38 C.F.R. § 4.16(b). In this case, while the Veteran may not have worked full-time since May 2003, the record fails to show that his service-connected disabilities have been the cause of his inability to secure and follow a substantially gainful employment. A July 2003 VA treatment note reflects that the Veteran was unable to work due to a work-related injury and that he was receiving workers' compensation benefits as a result. A November 2006 VA treatment note reflects that the Veteran has been unemployed since May 2003, at which time he suffered a work-related accident involving his right foot and ankle. He reported having a left knee disability, a right shoulder disability, posttraumatic stress disorder (PTSD), bipolar affective disorder, and hearing loss. He stated that his medical and mental health conditions precluded his ability to obtain and maintain full-time employment. Records from the SSA show that the Veteran most recently stopped working in March 2009 due to his service-connected left knee disability, right ankle disorder, PTSD, bipolar disorder, depression, bladder disorder, and service-connected hearing loss. They also show that he has been unsuccessfully applying for SSA benefits and was recently denied in June 2009. As indicated earlier, the Veteran has since been granted SSA disability benefits due to his bipolar disorder, a nonservice-connected disability. A November 2010 VA audio examination report reflects the examiner's opinion that the Veteran's hearing loss alone should not be a barrier to a wide range of employment settings, noting that many individuals with the Veteran's degree of hearing loss, or worse, function well in many occupational settings. The examiner added that the Veteran may have trouble working well in very noisy environments and in environments that require him to often use non face-to-face communications equipment or in jobs that require a great deal of attention to high-pitched sounds. A December 2010 VA general medical examination report reflects that the Veteran's work history was interrupted in 2003 by a right ankle injury that required surgery but that he later worked in construction until 2005 when he was found to be too slow for the job. Other disabilities noted included migraine headaches, bipolar disorder, PTSD, a shoulder disorder and gastroesophageal reflux disease. Active range of motion of the left knee was from 5 to 120 degrees, passive range of motion was from 0 to 120 degrees, range of motion remained the same after repetitive use testing, and the knee was stable. Drawer sign, McMurray's test were negative and there was no obvious tenderness. The knee was stable to ligamentous testing. The examiner stated that there appears to be increased disability with repetitive action. The examiner noted that the Veteran's subjective symptoms regarding the left knee are at a higher level than the objective findings, but that there is unsteadiness, reduction in range of motion, and reduction in functional capabilities. The examiner opined that "for the reasons cited above," it was unlikely that the Veteran would be able to obtain or maintain gainful employment. A January 2012 VA examination report reflects that the Veteran was found disabled by the SSA due to his bipolar disorder. The Veteran reported that he can walk one quarter mile, stand for one hour, sit for 30 to 60 minutes, and navigate stairs with pain and sporadic giving way. He denied any problems with his activities of daily living, except for one incident of almost falling in the shower when the left knee gave way. He added that he takes aspirin for knee pain twice per week. After examining the Veteran, the examiner indicated that the Veteran's left knee disability impacts his ability to work, citing the above limitations. However, the examiner opined that the left knee pain would not interfere with occupational tasks for a sedentary job. The examiner noted that the Veteran walked down the hallway about 100 feet with a steady and even gait, walked around in the examination room, and sat on the examination table and flexed and extended his knee repeatedly and in various stressor positions without pain or positive findings. The examiner noted that, upon asking the Veteran whether he would be able to have a sedentary job considering just the left knee pain, the Veteran replied that he cannot work at all because he can only sit for 30 minutes before having to get up and walk around. The examiner also noted that the Veteran's subjective complaints were more severe than the objective findings, resulting in symptom magnification. In considering the evidence of record, the Board finds that the most probative evidence (the November 2010 and January 2012 VA examination reports) concluded that although the Veteran's left knee disability impacts his ability to work, citing various limitations, the clinician opined that the disability would not interfere with occupational tasks for a sedentary job, noting the Veteran's various capabilities during the examination. The examiner also noted that the Veteran's subjective complaints were more severe than the objective findings (similar to the assessment made in December 2010). Thus, this opinion is well supported by examination findings and the examiner's observation regarding symptom magnification. As such, the Board has accorded this opinion considerable probative value. See Hayes, 5 Vet. App. at 69-70. Additionally, the November 2010 VA examiner acknowledged that the Veteran may have trouble in certain work environments but opined that the hearing loss alone should not be a barrier to a wide range of employment settings, noting that many individuals with the Veteran's degree of hearing loss, or worse, function well in many occupational settings. Although the tinnitus was not specifically addressed, the Veteran has not indicated that it prevents him from securing or following substantially gainful employment, and the record does not otherwise show that it has had such effect. The December 2010 VA examiner opined that the Veteran would not be able to obtain or maintain gainful employment for "the reasons cited above," which included a discussion of numerous non service-connected disabilities, such as bipolar disorder, PTSD, and a work-related ankle injury. The examiner also noted that the Veteran's subjective symptoms were at a higher level than the objective findings demonstrated upon clinical evaluation. Thus, the Board finds that this opinion is of limited probative value. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). In conclusion, the Board finds that the most probative medical evidence shows that the Veteran's service-connected left knee disability, tinnitus, and hearing loss do not prevent him from securing or following a substantially gainful occupation. Moreover, based on records contemporaneous to the time he initially stopped working, he was unable to work due to a work-related right foot and ankle injury, and his current ability to secure and follow employment appears to be most impacted by his nonservice-connected bipolar disorder. For these reasons, the Board concludes that the record evidence establishes that the Veteran's service-connected disabilities, alone, do not prevent him from securing or following a substantially gainful occupation, and as such he does not meet the criteria for a TDIU. Moreover, there is no basis for referral of this case for extra-schedular consideration. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). ORDER An initial evaluation in excess of 10 percent for service-connected chondromalacia of the patella with anterior cruciate ligament injury and patellar tendinopathy of the left knee is denied. A TDIU is denied. ____________________________________________ SUSAN J. JANEC Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs