Citation Nr: 1306103 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 09-10 279 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to a rating in excess of 10 percent for retropatellar pain in the left knee. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from June 1995 to September 1996. This matter is on appeal from a July 2007 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. However, jurisdiction of the appeal is currently with the RO in Salt Lake City, Utah. The Veteran appealed, and in July 2011, and June 2012, the Board remanded the claim for additional development. The Veteran testified before the undersigned Veterans Law Judge in March 2011. A transcript of the hearing is of record. FINDINGS OF FACT 1. Considering his pain, fatigue and weakness, the Veteran's service-connected left knee retropatellar pain is not shown to have resulted in flexion limited to 30 degrees or extension limited to 15 degrees; and, the evidence of record does not support a diagnosis of left knee arthritis or instability. 2. The Veteran's service-connected disability is: left knee retropatellar pain, evaluated as 10 percent disabling; his combined rating is 10 percent. 3. Factors warranting a referral for TDIU on an extraschedular basis are not present. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for service-connected left knee retropatellar pain have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.40, 4.45, Diagnostic Codes 5256, 5257, 5258, 5260, 5261, 5262 (2012). 2. The criteria for establishing entitlement to TDIU are not met; referral for TDIU on an extraschedular basis is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.321(b)(1), 4.16(a), (b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist 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; 38 C.F.R. §§ 3.159, 3.326(a). 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. 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). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in February 2007 for how VA determines disability ratings and effective dates, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. This letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in July 2007. Nothing more was required. The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. After a careful review of the file, the Board finds that 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 Veteran's service treatment reports, and VA and non-VA medical records, have been obtained, as well as SSA records. The appellant and his representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and they have not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of his appeal. Mayfield. The Veteran has been afforded three examinations. To that end, 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 are more than adequate, as they are predicated on a review of the pertinent evidence, consideration of the Veteran's lay statements, and an examination of the Veteran. The examinations include findings that are necessary to rate the Veteran's left knee disability under the relevant criteria. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board notes that the Veteran's last orthopedic examination is over one (1) year old. The mere passage of time since that examination is not reason enough, alone, to require reexamination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Here, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's left knee disability since it was last examined in February 2012. The Veteran has not argued the contrary. As regards the hearing testimony, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the hearing officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, the undersigned explained the issue of entitlement to an increased rating and solicited the Veteran to identify evidence relevant to the claim, to include his employment status. The Veteran did so and further described the impact of the disability on his activities of daily living. His testimony triggered the Board's decision to Remand the matter for a more recent VA examination. The matter was Remanded in June 2012. The Board directed that the following development be undertaken: the Veteran's treatment records, dated since December 2011, should be obtained from the VA Medical Centers in Minneapolis, Minnesota, White City, Oregon, Portland Oregon and Salt Lake City, Utah, if found. This has been done. The RO should acquire any documents and reports related to the MRI (magnetic resonance imaging) that was performed on the Veteran's left knee between December 2007 and March 2008. This also has been done. The Veteran's SSA records, including the medical evidence used to determine disability eligibility, should be obtained. This has been done. Finally, the Board directed that the Veteran be contacted in order to determine if he is asserting that he is unemployable due to his service connected disability, and that as part of this communication, the Veteran should be informed of the evidence necessary to support a claim for TDIU, as established in 38 C.F.R. § 4.16. This has been done. See duty-to-assist letter, dated in August 2012. Under the circumstances, the Board finds that there has been substantial compliance with its remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Hence, no further notice or assistance 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). II. Increased Rating The Veteran asserts that he is entitled to higher rating for his service-connected left knee retropatellar pain. He argues that he has such symptoms as knee pain, difficulty using stairs, giving out three to four times a month, instability, and a limited range of motion. See March 2011 Hearing Transcript. He further testified that he uses an elastic sleeve for his knee, and that although a doctor had asked him to use a cane, he did not currently do so. He stated that he was not currently working, and that he was a full-time student. Disability ratings are assigned under the criteria set forth in Diagnostic Codes (DCs) in VA's Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Disabilities must be viewed historically and the disability must be described in terms of the person's function under the ordinary conditions of daily life including employment. 38 C.F.R. §§ 4.1, 4.2, 4.10. Higher ratings are assigned if the disability more nearly approximates the criteria for that rating; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence the benefit of the doubt is to be resolved in the veteran's favor. 38 U.S.C.A. § 5107(b). The words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2012). It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2012). In December 1996, the RO granted service connection for left knee retropatellar pain syndrome, evaluated as 10 percent disabling. There was no appeal, and the RO's decision became final. See 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2011). In December 2006, the Veteran filed a claim for an increased rating. In July 2007, the RO denied the claim. The Veteran has appealed. With regard to the history of the disability in issue, see 38 C.F.R. § 4.1 (2012), the Veteran's service treatment reports show that the Veteran received a number of treatments for left knee pain, with several notations of RPPS (retropatellar pain syndrome), with no evidence of instability, as well as a notation of possible MMT (medial meniscal tear). A medical evaluation board (MEB) report, dated in June 1996, shows that the Veteran was noted to have left knee retropatellar pain syndrome. There is no history of surgery. The Veteran's service-connected left knee retropatellar pain has been rated under 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5099-5260. See 38 C.F.R. § 4.27 (2012) (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen; disabilities requiring rating by analogy will be coded first the numbers of the most closely related body part and "99"). This hyphenated diagnostic code may be read to indicate that an unlisted orthopedic disorder is the service-connected disorder, and it is rated as if the residual condition is limitation of knee flexion under DC 5260. Under DC 5260, a 10 percent evaluation is warranted where knee flexion is limited to 45 degrees. A 20 percent evaluation is warranted where knee flexion is limited to 30 degrees. The following diagnostic codes are also relevant to the claim: Under 38 C.F.R. § 4.71a, DC 5261, a 20 percent evaluation is warranted where knee extension is limited to 15 degrees. Under 38 C.F.R. § 4.71a, DC 5256, a 30 percent rating is warranted for ankylosis of the knee with favorable angle in full extension or slight flexion between 0 degrees and 10 degrees. Under 38 C.F.R. § 4.71a, DC 5258, dislocated semilunar cartilage, with frequent episodes of "locking," pain, and effusion into the joint, is rated as 20 percent disabling. The relevant time period is from December 2005 (i.e., one year prior to the date of receipt of the claim) to the present. See 38 C.F.R. § 3.400(o)(2) (2012). The relevant post-service medical evidence consists of VA and non-VA reports, and reports from the Social Security Administration (SSA). The only recorded ranges of motion during the time period in issue are as follows: a VA examination report, dated in March 2007, shows that the Veteran's left knee had extension to 0 degrees, and flexion to 140 degrees. A VA examination report, dated in December 2008, shows that the Veteran's left knee had extension to 0 degrees, and flexion to 125 degrees. A VA examination report, dated in February 2012, shows that the Veteran's left knee had extension to 0 degrees, and flexion to 130 degrees. VA progress notes show the following ranges of motion for the left knee: extension to 0 degrees, and flexion to 100 degrees (October 2007); extension to 0 degrees, and flexion to 115 degrees (December 2007). VA progress notes, dated in March 2008, and May 2010, note that he had a "normal" ROM (range of motion). A VA progress note, dated in November 2011, notes that his musculoskeletal system had FROM (a full range of motion) (in each case, specific degrees of motion were not provided). The Board finds that a rating in excess of 10 percent under DC 5260 is not warranted. There is no evidence to show that the Veteran's left knee flexion is limited to 30 degrees. The criteria for even a compensable rating under DC 5260 are not shown to have been met. Accordingly, the Board finds that the criteria for a rating in excess of 10 percent under DC 5260 have not been met. As for the possibility of a higher rating under another diagnostic code, Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991), a rating in excess of 10 percent is not warranted under DC 5261, as the evidence does not show that during the time period in issue, the Veteran had left knee extension is limited to 15 degrees. There is no evidence of left knee ankylosis for a higher rating under DC 5256. To the contrary, an active range of motion of the left knee has been documented throughout the appeal period. Similarly, as there is no evidence of a dislocated left semilunar cartilage, a higher rating under DC 5258 is not applicable. With regard to DC's 5260 and 5261, a higher evaluation is not warranted for functional loss. See 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995); VAGCOPPREC 9-98, 63 Fed. Reg. 56,704 (1998). In this case, the Veteran is not shown to have a limitation of motion for even a compensable rating under either DC 5260 or DC 5261, and it therefore appears that the basis of the RO's 10 percent rating is functional loss. The medical evidence does not contain evidence of such symptoms as neurological impairment, incoordination, loss of strength, or any other findings that would support a higher rating on the basis of functional loss due to pain. In this regard, a March 2007 VA X-ray report was negative. An October 2007 VA X-ray report notes that there was no fracture or dislocation. A December 2007 VA X-ray report notes that there was no significant renographic abnormality identified with possible trace joint effusion. A February 2008 VA magnetic resonance imaging (MRI) study was negative. The March 2007 VA examination report shows that the Veteran complained of constant left knee pain, although he was able to occasionally play sports including basketball. He reported having four to six flare-ups over the last ten years during which he had knee swelling. He reported using a brace for a month or two before he could return to normal activities. He stated that he could eat, bathe, groom, toilet and dress without any problems, and do light repairs around the house. He stated that he used a walking stick. He reported having popping and clicking when he walked, used stairs, or went up or down hills. On examination, there was no swelling, deformity, or discoloration. There was tenderness. Sensation was normal. Strength was 5/5 on extension and flexion. Range of motion was from 0 to 140 degrees, passively, measured three times without change. There was no instability. The assessment was patellofemoral pain syndrome. The examiner stated that it was reasonable to anticipate that the Veteran would lose "between ten and fifteen degrees of his range of motion. strength, coordination, and fatigability associated with repetitive movement flares." Such would equate to a limitation of flexion to 125 degrees, which is still well-beyond the criteria needed to event assign a compensable rating under Diagnostic Code 5260. The examiner further stated that he did not believe that the Veteran would do a physically laborious job well, but this would not prevent him from any sedentary employment. X-rays were noted to be negative. The December 2008 VA examination report shows that the Veteran complained of left knee pain that prevented him from driving more than two hours, or walking more than 15 minutes. He also complained of left knee symptoms that included partial locking, feeling unstable and weak, a collapsing tendency, fatigue, and incoordination. On examination, muscle condition was average. He was able to rise on his toes and heels. There was "rather bothersome" pain on motion. There was moderate patellar pain and crepitation. The quadriceps muscle development was satisfactory and equal. The ligaments were normal. The knee was tender. There was no lateral instability or subluxation. The assessment notes chronic synovitis and symptomatic patellar chondromalacia, and that there was a possible derangement or tear of the meniscus. Range of motion was from zero to 125 degrees with pain demonstrated throughout the range of motion. The Veteran endorsed a decrease in flexion by 40 degrees during periods of flare up. However, repeat movement did not cause flare-up or loss of motion. Shoe wear was equal. The examiner further noted that the Veteran was limited to "lighter types of work," which needs to be mostly sitting, and that previous security work had become difficult. The Court clarified that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Court specifically discounted the notion that the highest disability ratings are warranted where pain is merely evident as it would lead to potentially "absurd results." Id. at 43 (limiting the scope and application of its prior holding in Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991)). It was stated that 38 C.F.R. § 4.40 provides that joint pain alone, and even pain throughout the entire range of motion, but without evidence of decreased functional ability, does not warrant the minimum compensable rating. Here, like in Mitchell, the examiner indicated that the Veteran had pain throughout his range of motion, but that there was no quantifiable loss due to actual pain. He specifically stated that repeat motion did not cause flare up or loss of motion. Indeed, even if one were to accept the Board's claim of experiencing a loss of 40 degrees of flexion during a flare up, which is not necessarily competent to report, his loss of flexion would only equate 85 degrees. Such is still well-in-excess of the 30 degrees loss of flexion, which is required for a 20 percent rating under Diagnostic Code 5260. In short, the Veteran is already being adequately compensated for pain and any perceived loss of function. The February 2012 VA examination report shows that the Veteran complained of flare-ups on prolonged walking, running, and cold weather. The report notes the following: there was no history of surgery. There was no objective evidence of painful motion. The Veteran was able to perform repetitive use testing with three repetitions. There was no additional limitation of motion following repetitive use testing. There was no functional loss or functional impairment of the knee and lower leg. There was tenderness or pain to palpation. Strength on flexion and extension was 5/5. There was no instability. The Veteran did not use any assistive devices as a normal mode of locomotion. The examiner noted that he was wearing a knee brace, and stated, "I don't understand why because all of his left knee imaging has been normal and his left knee is stable. He certainly does not need the brace in order to make locomotion possible." There was no degenerative or traumatic arthritis. The Veteran's knee and leg condition did not impact his ability to work. The diagnosis was PFPS (patellofemoral pain syndrome). The examiner concluded that the Veteran's flare-ups of pain would not significantly reduce the functional ability of the left knee joint given the normal imaging findings. The Veteran's joint space was noted to be normal and there was no instability or problems with the ligaments or the meniscus. There was no pathology of the joint itself to explain any reduction in range of motion or functional limitations. VA progress notes show the following: the Veteran had 5/5 strength in the lower extremities (September 2007); he reported that he had recently played basketball (June and October of 2006, and September 2007); he stated that he had hurt his foot while jogging (August 2010). A decision of the SSA, dated in December 2010, shows that the Veteran claimed that he was disabled due to psychiatric, ankle, and knee symptoms. However, it was determined that the Veteran was not disabled. In summary, even taking into account the Veteran's complaints, the medical evidence is insufficient to show that the Veteran has such symptoms as atrophy, loss of strength, neurological impairment or incoordination, and the Board finds that, when the ranges of motion in the left knee are considered together with the evidence of functional loss due to left knee pathology, the evidence does not support a conclusion that the loss of motion in the left knee more nearly approximates the criteria for a rating in excess of 10 percent under either DC 5260 or DC 5261, even with consideration of 38 C.F.R. §§ 4.40 and 4.45. With regard to the entire time period in issue on appeal, the Board notes the following: separate ratings under 38 C.F.R. § 4.71a, DC Code 5260 and DC 5261 may be assigned for disability of the same joint, if none of the symptomatology on which each rating is based is duplicative or overlapping. See VAOPGCPREC 9-04, 69 Fed. Reg. 59990 (2005). In this case, however, as set forth above, none of the medical evidence shows that the Veteran's left knee extension, or flexion, is limited to the extent necessary to meet the criteria for a separate compensable rating. 38 C.F.R. § 4.71, Plate II, DCs 5260, 5261. Additionally, to assign two, separate compensable ratings solely based on painful motion under two separate diagnostic codes (i.e., under Diagnostic Codes 5260 and 5261) would be in violation of the rule of pyramiding. See 38 C.F.R. § 4.14; VAOPGCPREC 9-04, 69 Fed. Reg. 59990 (2005). Accordingly, the claim must be denied. Also with regard to the entire time period in issue on appeal, the VA General Counsel has held that a veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, provided that a separate rating must be based upon additional disability. VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). However, the medical evidence shows that the Veteran has been found not to have either arthritis, or instability. See e.g., VA examination reports. As the medical evidence shows that the Veteran does not have any left knee instability, or arthritis, the Board has determined that the evidence is insufficient to show that a separate rating is warranted for instability of the left knee. Given the foregoing, the Board finds that the evidence is insufficient to show recurrent subluxation or lateral instability of the left knee under DC 5257. In making this determination, the Board finds that since DC 5257 is not predicated on loss of range of motion, 38 C.F.R. §§ 4.40 and 4.45, as interpreted in DeLuca v. Brown, 8 Vet. App. 202, 204-206 (1995); do not apply. Johnson v. Brown, 9 Vet. App. 7, 9 (1996). In deciding the Veteran's increased rating claim, the Board has considered the determination in Hart v Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. The evidence of record supports the conclusion that the Veteran is not entitled to additional increased compensation at any time within the appeal period. The Board therefore finds that the evidence is insufficient to show that the Veteran had a worsening of the disability in issue, such that an increased evaluation is warranted. (CONTINUED NEXT PAGE) III. TDIU A request for a total disability rating based on individual unemployability due to service-connected disability (TDIU), whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation. There must be cogent evidence of unemployability in the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran asserts that he is entitled to TDIU. He has asserted in various records that he cannot work due to his left knee symptoms. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is 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, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). An extraschedular total rating based on individual unemployability may be assigned in the case of a veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. § 4.16(b). The Veteran's service-connected disabilities are: left knee retropatellar pain, evaluated as 10 percent disabling. His combined rating is 10 percent. Given the foregoing, at no time has the Veteran met the minimum schedular requirements for TDIU, see 38 C.F.R. § 4.16(a) (2011), and the only basis for the assignment of a TDIU is on an extraschedular basis. Ordinarily, the VA Schedule for Rating Disabilities 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 total rating based on individual unemployability may be assigned in the case of a veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. §§ 3.321, 4.16(b). 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. For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2317 (1992). Factors such as employment history, as well as educational and vocational attainments, are for consideration. Assignment of a TDIU evaluation requires that the record reflect some factor that "takes the claimant's case outside the norm" of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Id. Additionally, the Court has recognized that, "the effect of a service-connected disability appears to be measured differently for purposes of extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) ... [than] for purposes of a TDIU claim under 38 C.F.R. § 4.16 ." Kellar v. Brown, 6 Vet. App. 157, 162 (1994). While the former regulatory provision requires marked interference with employment, the latter requires evidence of unemployability. Id. The medical evidence, discussed in Part I of this decision, is incorporated herein. Briefly stated, it shows that the Veteran has received numerous treatments for left knee symptoms. His MRI and X-rays are essentially normal. The March 2007 VA examiner stated that he did not believe that the Veteran would do a physically laborious job well, but that it would not prevent him from any sedentary employment. The December 2008 VA examiner stated that the Veteran was limited to "lighter types of work," which needs to be mostly sitting, and that previous security work had become difficult. In addition, VA progress notes show the following: the Veteran reported that he was working in a warehouse (June 2006); working as a janitor (March 2009); gave a history of working for a employment agencies between 2005 and 2007 (mostly in warehousing and labor), and from Spring to Autumn in 2009, with a more distant history of work in security, and in technical support (October 2009); part-time work at a sandwich shop (November 2009); he was looking for work, and was close to getting a security guard certification (May 2010); he complained that despite some recent work in labor-ready jobs, he really hadn't worked in the last two years, and that he could not work due to his left knee symptoms (June 2010); he was taking college classes (August 2010). Documentation associated with the SSA's decision, dated in December 2010, indicates that the Veteran reported that he had worked as a cashier in a restaurant, and as a waiter, in 2005, as a laborer for a temporary agency in 2006, and as a sandwich maker and a janitor in 2009. The Board finds that the claim must be denied. At no time has the Veteran met the minimum schedular requirements for TDIU. See 38 C.F.R. § 4.16(a). Therefore, the only basis for the assignment of a TDIU is on an extraschedular basis. The Board finds that the evidence of record is insufficient to show that the Veteran is unable to secure or follow a substantially gainful occupation because of his service-connected disability. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose. In this case, although he may not be able to perform employment as a janitor or laborer (involving physically laborious work), the issue is not whether he is able to perform any specific job. See 38 C.F.R. § 4.16(b). Here, two VA examiners have indicated that he is not unemployable due to his left knee symptoms. The SSA has also determined that he is not disabled. There Veteran has worked in several different jobs during the appeal period. There is no history of hospitalization or surgery for his service-connected left knee disability. Given the foregoing, the Board finds that the Veteran does not meet the requirements for a TDIU on an extra-schedular basis. In reaching this decision, the Board considered the benefit-of-the-doubt rule; however, as the preponderance of the evidence is against the appellant's claim, such rule is not for application in this case. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a rating in excess of 10 percent for retropatellar pain in the left knee is denied. Entitlement to a TDIU . ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs