Citation Nr: 1301675 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 10-02 191 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to increased disability rating for osteoarthritis of the right knee, rated as 10 percent disabling prior to October 8, 2009, and as 20 percent disabling from that date. 2. Entitlement to a disability rating in excess of 10 percent for degenerative changes of the left knee. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A.G. Alderman, Counsel INTRODUCTION The Veteran served on active duty from July 1978 to September 1980. This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board remanded this case in August 2010 to enable the RO to schedule the Veteran for a videoconference hearing before a Member of the Board, as requested in the Veteran's substantive appeal. However, the Board was subsequently advised the Veteran has withdrawn his request for hearing and requested that adjudication of his appeal be expedited. In February 2011, the Board remanded the Veteran's case for further development, which was completed. The matter was again remanded in December 2011 for development, to include the scheduling of VA examinations. All development has been completed and the case has been returned to the Board for further appellate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Prior to October 8, 2009, the Veteran's right knee flexion was not limited to 30 degrees or less and his extension was not limited to 10 degrees or more. 2. As of October 8, 2009, the Veteran's right knee flexion has not been limited to 15 degrees or less and his extension has not been limited to 10 degrees or more. 3. The Veteran's left knee flexion has not been limited to 30 degrees or less and his extension has not been limited to 10 degrees or more. 4. The Veteran's service-connected disabilities do not prevent him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for disability rating in excess of 10 percent from October 8, 2009 and to a rating in excess of 20 percent from that date for osteoarthritis of the right knee have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5257, 5260, and 5261 (2012). 2. The criteria for disability rating in excess of 10 percent for degenerative changes of the left knee have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5257, 5260, and 5261 (2012). 3. The criteria for entitlement to TDIU have not been met on a schedular or extraschedular basis. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. VA must also notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Here, the duty to notify was satisfied by way of a letter sent to the Veteran in September 2008 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed the Veteran of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. The Board also finds the Veteran has been afforded adequate assistance in response to his claims. The RO has obtained VA treatment records and records from the Social Security Administration (SSA). The Board has reviewed the Veteran's physical claims file and file on the "Virtual VA" system to ensure a total review of the evidence. The Veteran was afforded several VA medical examinations which are addressed below. Some of the examination reports do not indicate that the claims file was reviewed in conjunction with performing the examination and drafting the examination report. However, because the examiners were to identify the presenting symptoms and address the severity of the disabilities at the time of the examination, and because the examiners provided detailed examination reports, the Board finds that the VA examination report are adequate for rating purposes. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Ratings 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. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). If two evaluations are potentially applicable, 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 (2012). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2012). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2012). Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). It is noted that, under the anti-pyramiding provision of 38 C.F.R. § 4.14, the evaluation of the "same disability" or, more appropriately in this case, the "same manifestation" under various diagnoses is to be avoided. In Esteban v. Brown, 6 Vet. App. 259 (1994), the Court held that, for purposes of determining whether the Veteran is entitled to separate ratings for different problems or residuals of an injury, such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of or overlapping with the symptomatology of the other two conditions. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). A. Knees The Veteran seeks a rating in excess of 10 percent prior to October 8, 2009 and a rating in excess of 20 percent from that date for his service-connected osteoarthritis of the right knee (right knee disability). He also seeks a rating in excess of 10 percent for degenerative changes of the left knee (left knee disability). Both knees have been rated under Diagnostic Code (DC) 5260, limitation of flexion. 38 C.F.R. § 4.71a (2012). Diagnostic Code 5260 provides for a 20 percent rating for flexion limited to 30 degrees and a 30 percent rating for flexion limited to 15 degrees. Diagnostic Code 5261 provides for a noncompensable rating for extension limited to 5 degrees, a 10 percent rating when there is evidence of extension limited to 10 degrees, a 20 percent rating for extension limited to 15 degrees, and higher evaluations for more severely limited extension. Separate ratings under DCs 5260 and 5261 may be assigned for disability of the same joint. See VAOPGCPREC 9-04. The Board has also considered DC 5257, which provides that recurrent subluxation or lateral instability warrants a 10 percent rating if slight, a 20 percent rating if moderate, and a 30 percent rating if severe. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2009); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). A review of the procedural history indicates that the Veteran withdrew an appeal for increased ratings of the bilateral knee disabilities and filed new claims for increased ratings in August 2008. A September 2007 MRI of the left knee revealed a posteromedial meniscal tear with small joint effusion. A VA examination was conducted in November 2007, during which the Veteran reported daily bilateral knee pain anteriorly. He stated that the pain was constantly at a 10 (scale of 1 to 10, with 10 being the worst). He denied radiation, weakness, stiffness, swelling, heat redness, instability, give way, locking, fatigability, or decrease in endurance. He indicated that he used both a brace and a cane. There were no episodes of either subluxation or dislocation. He used to work in maintenance, but was no longer able to due to knee, back and ankle pain. On examination, he complained of pain with range of motion, but there was no edema, effusion, instability, weakness, tenderness to palpation, redness, abnormal movement, or guarding. He had hypertrophy of both tibial tuberosities and significant decrease in quad tone, with hypermobile patellas, and positive patellar apprehension testing bilaterally. The left knee displayed active range of motion to 98 degrees and passive motion to 140 degrees. Repeated flexion was between 80 and 95 degrees, although this variable range was noted to be inconsistent. Extension was to 0 degrees actively and passively, with no pain and no change on repetition. The ligaments were intact. The right knee flexed to 25 degrees actively and to 140 degrees passively. Repeated movement was the same as that on the left. The ligaments were also intact and stable. He walked with a limp. The diagnosis was patellofemoral pain syndrome. Because of the variable range of motion on repeated testing, functional range of motion could not be reliably assessed. A May 2009 VA examination report shows complaint of constant severe and achy pain, bilaterally, and instability of the right knee. He used a neoprene sleeve on the right knee and a cane. He was unable to stand for more than a few minutes or walk more than a few yards. Gait was antalgic. Range of motion (ROM) measured from zero degrees extension to 45 degrees flexion, with pain starting at 20 degrees. ROM of the left knee measured zero degrees extension to 90 degrees flexion, with pain starting at 20 degrees. No additional loss of motion was observed after repetitive use. The Veteran said he stopped working due to a non-service connected back injury. The examiner found that the knee disabilities had no significant effects on employment or performance of activities of daily living. Unfortunately, the Veteran's ROM testing did not show flexion limited to 30 degrees or less or extension limited to 10 degrees or more for either knee. The examiner also did not observe recurrent subluxation or lateral instability; therefore, the examination report weighs against the claims. In July 2009, the Veteran had a VA examination for his right knee. The Veteran reported constant pain and instability. He used a neoprene sleeve on the right knee and a cane. He was unable to stand for more than a few minutes or walk more than a few yards. Gait was antalgic. Objective findings included pain. ROM of the right knee measured zero degrees extension to 45 degrees flexion with pain starting at 20 degrees. No additional loss of ROM was observed after repetitive use. The Veteran indicated that he stopped working due to a non-service connected back injury. The examiner found that the right knee had no significant effects on employment or performance of activities of daily living. Unfortunately, the Veteran's ROM testing did not show flexion limited to 30 degrees or less or extension limited to 10 degrees or more for either knee. The examiner also did not observe recurrent subluxation or lateral instability; therefore, the examination report weighs against the claims. The Veteran had a general VA examination in August 2009 for the left knee. The Veteran reported left knee giving way, stiffness and weakness but no flare-ups. He used a cane and had antalgic gait and had poor propulsion. The examiner observed pain with motion, bilaterally and noted ROM from zero degrees extension to 90 degrees flexion, bilaterally. No additional limitations were observed after repetitive motion. The examiner stated that the left knee condition prevents participation in sports, severely impacts exercising and performing chores, moderately interferes with recreation, and mildly impacts shopping. The examiner found that he was incapable of lifting more than 30 pounds and unable to climb ladders or bend his knees. He was not capable of performing most physical work or maintenance work. Sedentary employment was acceptable. Unfortunately, the Veteran's ROM testing did not show flexion limited to 30 degrees or less or extension limited to 10 degrees or more for either knee. The examiner also did not observe recurrent subluxation or lateral instability; therefore, the examination report weighs against the claims. The Veteran had a VA examination in November 2009. The report shows complaints of falling due to knees giving way, stiffness, constant pain, and flare-ups which interfere with standing. He could complete activities of daily living and light household chores. He used braces and a cane for ambulation. He was limited to 7 or 8 minutes standing and 8 or 9 minutes walking. Observed was antalgic gait and crepitation on the right. ROM measured to 125 degrees flexion, with pain starting at 30 degrees and extension to zero degrees, bilaterally. There was no additional loss of ROM with repetitive motion. Included with this examination were the results of a September 2008 X-ray of both knees, which showed mild osteoarthritis of both knees. However, the bony structures of both knees were intact, with no evidence of fracture or dislocation. There was also no evidence of effusion, or soft tissue abnormalities. Unfortunately, the Veteran's ROM testing did not show flexion limited to 30 degrees or less or extension limited to 10 degrees or more for either knee. The examiner also did not observe recurrent subluxation or lateral instability; therefore, the examination report weighs against the claims. The Veteran had a VA examination in February 2012. The report shows complaints of mid anterior knee pain, bilaterally, that is aggravated by cold wet weather and walking for more than a few minutes. He reported popping, clicking, and a feeling of giving way in the right knee. Pain was rated at an 8 to 10 on the pain scale. Flare-ups require him to sit and extend his knees as flare-ups prevent flexion. He feels unable to perform work involving lifting and standing due to decreased mobility and the sense of feeling unstable. ROM of the right knee measured to 50 degrees flexion, with pain and to zero degrees extension. ROM of the left knee measured to 50 degrees, with no evidence of pain, and to zero degrees extension. He had no additional limitation of ROM with repetitive use testing but exhibited less movement than normal, pain on movement, atrophy from disuse, and interference with sitting, standing, and weight-bearing. The examiner observed tenderness or pain on palpation of both knees. Strength was normal. Medial-lateral instability was normal, bilaterally and the examiner found no history of recurrent patellar subluxation or dislocation. Observed was a meniscal tear of the left knee; frequent episodes of pain, bilaterally; and frequent episodes of joint diffusion of the left knee. The examiner observed that the Veteran walks with a cane and uses braces. He had an antalgic gait. When sitting, he kept his legs in an extended position and when flexing his knees, he complained of immediate pain and guarded against flexion. Swelling was observed. He exhibited difficulty standing from a seated position. The examiner opined that the condition impacts employment as he is unable to stand or walk for long periods. He can no longer perform occupations requiring heavy lifting or bending, or prolonged walking, standing, sitting or driving. The examiner also found he would be unable to engage in employment requiring exposure to wet and cold climate as his conditions are aggravated in that climate. In the April 2012 addendum, the examiner said the Veteran can use his upper extremities without any difficulty. He has a problem with prolonged driving. Consequently, she found that he is unable to perform sedentary work that might require sitting for prolonged periods of time as sedentary work would lead to a worsening discomfort in his lower extremities. Unfortunately, the Veteran's ROM testing did not show flexion limited to 30 degrees or less or extension limited to 10 degrees or more for either knee. The examiner also did not observe recurrent subluxation or lateral instability; therefore, the examination report weighs against the claims. Review of the evidence shows that the Veteran does not meet the criteria for the next higher rating for either claim based on limitation of flexion and extension. 38 C.F.R. § 4.71a, DC 5260, 5261. Specifically, regarding the claim seeking a rating in excess of 10 percent for the left knee and for the right knee prior to October 8, 2009, the Board has considered DeLuca and 38 C.F.R. §§ 4.40, 4.45. 8 Vet. App. at 204-7. However, even considering the Veteran's complaints of pain, his ROM is far greater than the limitations provided for the next higher rating. Thus, ratings in excess of 10 percent for the left knee and for the right knee prior to October 8, 2009 are not warranted. Regarding ratings in excess of 20 percent for the right knee from October 8, 2009, the evidence shows ROM far greater than the limitation required for an increased rating. While the May and July 2009 VA examination showed flexion limited to 45 degrees with pain at 20 degrees, his August 2009 examination shows limitation of flexion at 90 degrees and at 125 degrees in November 2009 with pain starting at 30 degrees. In February 2012, limitation was limited to 50 degrees, with pain. The Board has considered the DeLuca criteria and finds that only with consideration of the Veteran's subjective complaints can the current assignment of a 20 percent rating for the right knee be justified as his flexion has never been limited to 30 degrees or less. Thus, a rating in excess of 20 percent for the right knee disability is not warranted. Finally, the objective evidence does not show subluxation or lateral instability, thus separate ratings are not warranted for either knee under DC 5257. 38 C.F.R. § 4.71a. To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2012). The provisions of 38 C.F.R. § 3.321(b) state as follows: Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service- connected disability or disabilities. The governing norm in these exceptional cases is: 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 as to render impractical the application of the regular schedular standards. In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. VA's General Counsel has stated that consideration of an extra-schedular rating under 3.321(b)(1) is only warranted where there is evidence that the disability picture presented by the Veteran would, in that average case, produce impairment of earning capacity beyond that reflected in the rating schedule or where evidence shows that the Veteran's service-connected disability affects employability in ways not contemplated by the rating schedule. See VAOPGCPREC 6-96 (Aug. 16, 1996). In Thun, the Court further explained that the actual wages earned by a particular veteran are not considered relevant in the calculation of the average impairment of earning capacity for a disability, and contemplate that veterans receiving benefits may experience a greater or lesser impairment of earning capacity than average for their disability. The Thun Court indicated that extraschedular consideration cannot be used to undo the approximate nature of the rating system created by Congress. The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. However, the Board is not precluded from raising this question, see Floyd v. Brown, 9 Vet. App. 88 (1996), and addressing referral where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Here, the Board finds that the schedular criteria adequately compensate the Veteran for his disabilities. The Veteran has submitted no evidence showing that his disorders have markedly interfered with his employment status beyond that interference contemplated by the assigned evaluation. Specifically, he told VA examiners that he stopped working due to non-service-connected back pain. While the knee disabilities interfere with his ability to perform physical labor, per the April 2012 addendum, he can use his upper extremities without any difficulty as long as he is not working a sedentary job that requires prolonged periods of sitting. Additionally, there is also no indication that his disabilities have necessitated frequent, or indeed any, periods of hospitalization during the pendency of this appeal. As such, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1), which concern the assignment of extra-schedular evaluations in "exceptional" cases. See Thun v. Peake, 22 Vet. App. 111 (2008). In summary, the Board finds that the preponderance of the evidence weighs against the assignment of a rating in excess of 10 percent for the Veteran's service-connected left knee disability, a rating in excess of 10 percent for his service-connected right knee disability prior to October 8, 2009, and a rating in excess of 20 percent for his service-connected right knee disability from October 8, 2009. The evidence in this case is not so evenly balanced to allow application of the benefit-of- the-doubt rule. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The appeal is denied. B. TDIU The Veteran seeks a TDIU rating. Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided, that if there is only one such disability, this disability shall be ratable as 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2012). Factors to be considered will include employment history, educational attainment and vocational experience, but marginal employment is not to be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Unemployability associated with advancing age or intercurrent disability may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19 (2012). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Rating boards should submit to the Director, Compensation and Pension Service (Director), for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). Id. Where a claimant does not meet the schedular requirements of 4.16(a), the Board has no authority to assign a TDIU rating under 4.16(b) and may only refer the claim to the Director for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). An assessment for extra-schedular referral requires consideration of the veteran's service-connected disability, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). The issue at hand involves a determination as to whether there are circumstances in this case, apart from the non-service-connected conditions and advancing age, that would justify a total disability rating based on unemployability. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The fact that the veteran is unemployed or has difficulty obtaining employment is not enough as a schedular rating provides recognition of such. Id. Rather, the veteran need only be capable of performing the physical and mental acts required by employment. Id. The schedular criteria contemplate compensating a veteran for considerable loss of working time from exacerbations proportionate to the severity of the disability. See 38 C.F.R. § 4.1. Importantly, TDIU is predicated upon an inability to secure and follow "substantially gainful employment." 38 C.F.R. § 4.16(a). For purposes of 38 C.F.R. § 4.16(a), marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id. Marginal employment may be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Id. Consideration shall be given in all claims to the nature of the employment and the reasons for termination. Id. In Faust v. West, 13 Vet. App. 342, 355-56 (2000), the United States Court of Appeals for Veterans Claims (Court) held that "substantially gainful employment" for TDIU purposes is met where the annual earned income exceeds the poverty threshold for "one person," irrespective of the number of hours or days actually worked and without regard to any prior income history. The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C.A. § 5107(a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id. Another way stated, VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner." Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Notably, the benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility. See 38 C.F.R. § 3.102. In this case, the Veteran's service connected disabilities include only his bilateral knee disabilities, rated 20 percent disabling on the right and 10 percent disabling on the left. His combined disability rating is 30 percent. 38 C.F.R. § 4.16(a). Therefore, the Board finds that the Veteran does not meet the schedular criteria for consideration of TDIU. The AMC sent the Veteran's case to the Director for extraschedular consideration of TDIU. In November 2012, the Director indicated review of the claims file and determined that the Veteran's condition was not of the severity to warrant entitlement to TDIU on an extraschedular basis. The Director pointed out that the medical evidence does not indicate that the Veteran is unemployable due to service-connected disabilities, and while he is in receipt of SSA benefits, SSA decisions regarding unemployability are not controlling for VA purposes. Further, the SSA records and determination address service and non-service connected disabilities. The Director found no evidence that the Veteran had been hospitalized for significant periods due to service-connected disabilities and said the Veteran has functional ROM in his knees and is able to ambulate with a cane. The Director concluded that the totality of the evidence does not show the Veteran is unemployable in all environments, including sedentary ones, solely due to service-connected disabilities. He denied entitlement on an extraschedular basis. Accordingly, because the Veteran does not meet the criteria for entitlement to TDIU on a schedular basis, and because the Director has denied entitlement on an extraschedular basis, the Board finds that entitlement to TDIU must be denied. ORDER Entitlement to increased disability rating for osteoarthritis of the right knee, rated as 10 percent disabling prior to October 8, 2009, and as 20 percent disabling from that date is denied. Entitlement to a disability rating in excess of 10 percent for degenerative changes of the left knee is denied. Entitlement to TDIU is denied. ______________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs