Citation Nr: 1306580 Decision Date: 02/26/13 Archive Date: 03/01/13 DOCKET NO. 00-03 785 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia THE ISSUES 1. Entitlement to a rating in excess of 20 percent for a right knee disability. 2. Entitlement to a rating in excess of 20 percent for a left knee disability. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Sean A. Ravin, ESQ WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran had active military service from May 1980 to May 1981. This appeal initially came to the Board of Veterans' Appeals (Board) from April 2001 and February 2004 rating decisions. In August 2007, the Board denied the Veteran's claim and he then appealed the denial to the Court of Appeals for Veterans Claims (Court), who vacated the Board decision and remanded the Veteran's claim for additional development consistent with a joint motion for remand (JMR). In December 2009, the Board remanded the Veteran's claim to comply with the directives of the JMR. The directed development has been completed, and because the Board's order was fully complied with, there is no prejudice for the Board to proceed. See Stegall v. West, 11 Vet. App. 268 (1998). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran's right knee disability is manifested by limitation of extension to at most 15 degrees when accounting for functional limitation from symptoms such as pain; but compensable limitation of flexion is not shown, nor is ankylosis, lateral instability or recurrent subluxation, removal of semilunar cartilage, frequent effusion, or impairment of the tibia and fibula. 2. The Veteran's left knee disability is manifested by limitation of extension to at most 15 degrees when accounting for functional limitation from symptoms such as pain; but compensable limitation of flexion is not shown, nor is ankylosis, lateral instability or recurrent subluxation, removal of semilunar cartilage, frequent effusion, or impairment of the tibia and fibula. 3. The Veteran's service-connected disabilities include his right knee disability, evaluated as 20 percent disabling, and his left knee disability, also evaluated as 20 percent disabling. A combined disability rating of 40 percent is in effect. 4. The medical and other evidence of record does not demonstrate that the Veteran's service-connected disabilities, alone, render him unable to secure or follow a substantially gainful occupation, so as to render impractical the application of the regular schedular standards. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for a right knee disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5256-5261 (2012). 2. The criteria for a rating in excess of 20 percent for a left knee disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5256-5261 (2012). 3. The criteria for TDIU have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In January 2001, the Veteran filed a claim seeking an increased rating for his service connected bilateral knee disabilities. He stated that his knees had deteriorated since his last examination. The Veteran was provided with a VA examination in February 2001 at which he described weakness, stiffness, and swelling of the knees, but denied any heat or redness. The Veteran also reported instability with giving way, locking, and fatigability with lack of endurance. The Veteran stated that flare-ups occurred with weather changes, with overactivity, and with under activity. The Veteran was noted to work for the Postal Service as a custodian, but his work duties were limited due to his degenerative joint disease in his knees. It was noted that the Veteran was on disability full time. The Veteran demonstrated range of motion in his right knee from 12 degrees to 100 degrees and in his left knee from 4 degrees to 92 degrees. The examiner stated this appeared to represent a slight decrease from what had been seen in 1999. X-rays showed osteoarthritic changes with narrowing of the medial compartments bilaterally. The examiner stated that the Veteran could flex his knees to approximately 100 degrees and could complete 10 repetitions with each knee with no fatigue or incoordination. There was no laxity in either knee, although some crepitus was noted with the exercise. Varus valgus was in neutral position. The examiner stated that the degenerative changes in the Veteran's knees was progressing quite rapidly and was causing a loss of function from pain, weakness, and limited motion. The RO denied the Veteran's claim, and he wrote in May 2001 that he was losing his job because his knees would no longer hold up. The Veteran stated that his knees were getting worse and were increasingly painful. In February 2001, Dr. C.V. wrote that the Veteran did not have loss of sensation from his knees down. It was noted that because of the Veteran's "medication condition" it was recommended that he have the following limitations: no squatting or climbing, alternating between standing and sitting as tolerated, no lifting more than 20 pounds, no walking long distances, avoid uneven surfaces due to degenerative arthritis, no night work because of diabetes, and no more than 30 minutes outside when the temperature was below freezing. In April 2001, Dr. B.R. stated that the Veteran had come to see him to get a disability note. The doctor noted that the Veteran had a history of cardiac valve replacement, as well as degenerative joint disease with chondromalacia of both knees, morbid obesity, diabetes mellitus, peripheral neuropathy in the feet and hands, and hyperlipidemia. The doctor stated that the Veteran's medical conditions were stable, but that as he aged, the degenerative changes in his knees and the neuropathy would not improve, such that he did not expect a recovery. In June 2001, the Veteran testified at a hearing before the RO, indicating that he had seen doctors for his knees on numbers of occasions. He stated that he had been told that his knees were shot and that he had to lose weight. He stated that he had been with the Postal Service for 17 years in maintenance, which he reported required a lot of walking and heavy lifting. The Veteran stated that he was no longer able to complete a number of things. He had a hard time walking a big area as a security guard, and had to sit down and rest his knees. He also asserted being unable to mow the lawn or work outside in the winter. He also reported having stopped golfing. At a June 2001 VA treatment session, it was noted that the Veteran had some pain in both knees and ankles, but that range of motion was intact and only mild pain was seen on external rotation, providing evidence against this claim. X-rays of both knees were interpreted as showing that the degenerative joint disease was well-controlled, providing more evidence against this claim. In March 2002, the Veteran underwent a second VA examination at which he reported losing approximately a month of work time in the past year on account of his knees. On physical examination, no effusion or ligamental laxity was noted in either knee, providing evidence against this claim. McMurray's and anterior drawer sign testing were both negative. The Veteran was able to flex his right knee to 105 degrees and his left knee to 106 with pain throughout range of motion on both sides. There was no give away noted secondary to the pain. The Veteran was diagnosed with degenerative joint disease in both knees and the examiner estimated that the Veteran would experience an additional 20 percent functional loss during flare-ups and repetitive use. X-rays showed no progression of osteoarthritis since 2001. In October 2002, the Veteran was seen by an occupational and environmental medicine specialist contracted by the Iowa disability determination section. It was noted that his current therapy consisted of walking, medication and exercise. The Veteran reported knee pains of 4-9/10 and asserted that he was never pain free. He stated that his son did the housework, as he was able to do very little. He acknowledged that he did some walking, but stopped when it hurt. The specialist noted that his doctor had restricted him to working only on flat surfaces, lifting only medium weights, and not working outside when the temperature was below 32 degrees. Importantly, the doctor observed that the Veteran moved about the room with an easy gait. No knee effusion was seen, the patellae were nonballottable, and the bursae were not tender. The anterior and posterior cruciate ligaments were intact, as were the medial and lateral collateral ligaments. No joint line tenderness was noted in either knee. On range of motion testing, the Veteran demonstrated 120 degrees of motion in both knees, and reports providing highly probative evidence against these claims. At a treatment session in September 2002, the Veteran stated that his knees hurt all the time and he continued to take over the counter medication for them. In June 2003, the Veteran was seen for a VA examination. He reported that for the past few months, the pain in his knees had been unbearable and had forced him to quit his job. He stated that he could work for 15 minutes and then had to rest for 5 minutes. On examination, no swelling or effusion was present. McMurray's and anterior drawer sign testing were both negative and there was no subluxation present. No soft tissue swelling or crepitus was present. There was no ligamental laxity on either side. Range of motion was from 0-100 degrees on the right and 0-90 on the left. Range of motion was accompanied by pain. The examiner suggested that the Veteran lost an addition 10 percent of function in his knees due to pain, but the pain was exacerbated by his morbid obesity. No subluxation or lateral instability was present on examination. X-rays of the knees in August 2005 again confirmed degenerative changes. MRIs of both knees showed complex tears involving the middle and posterior thirds of the medial meniscus on both sides. Additionally, small amounts of joint effusion were seen in the left knee. In January 2007, a traditionally cold weather month in Iowa, the Veteran underwent a VA examination. The Veteran reported that the winter months were tough on his knees. He stated that the flare-ups of his knees involved increased pain, swelling and locking. However, the Veteran added that he did not notice much swelling unless he stood on his feet for a long time. The Veteran complained of lack of endurance and described some weakness and stiffness in both knees. He also complained of both knees giving way, indicating that the right knee gave out approximately once or twice a month, while the left knee was much less frequent. He stated that he was usually able to catch himself without falling. No canes, braces or crutches were used. On examination, there was moderate tenderness along the joint line in both knees. Valgus stress testing elicited pain in the right medial collateral ligament. McMurray's and anterior drawer sign testing were both negative. No swelling or effusion was noted. Range of motion in the right knee showed extension to -10 degrees and flexion to 90 degrees with pain starting at 80 degrees. There was also objective evidence of pain at the extreme of extension. No additional loss of motion was seen on repetitive motion. On the left, the Veteran had extension to -10 degrees and flexion to 80 degrees with objective evidence of pain at the extremes. Again no additional limitation of motion was seen on repetitive motion. The Veteran was in mild to moderate discomfort after the examination of his knees. The examiner found that the Veteran's bilateral knee disability and his diabetic nephropathy both had a moderate effect on his activities of daily living and his ability to work as a maintenance person. The knee condition affected his ability to kneel down, climb ladders or stand for more than 30 minutes. The Board finds that these results provide yet more negative evidence overall against this claim, indicating "mild to moderate discomfort" notwithstanding the fact that the Veteran is indicating severe problems. In September 2008, the Veteran underwent a VA examination, reporting some weakness and stiffness, but denying any locking, swelling, heat or redness. He stated that sometimes his knees seemed to give way. He was taking over the counter Aleve for the pain. Weather changes reportedly aggravated his knees. The Veteran reported being able to walk approximately one block and stand for five minutes. He denied any treatment or evaluation of his knees for a number of years. The only affect on his activities of daily living he reported was that it was difficult to change his shoes because he had trouble bending. The Veteran was noted to be morbidly obese, weighing 391 pounds. He walked with a slight limp, but there was no gross deformity. There was no effusion or focalized tenderness. McMurray's, anterior drawer sign, and Lachman's testing were all negative. There was also no sign of lateral or medial collateral instability. The Veteran had active and passive range of motion from 0-115 degrees in the right knee and 0-110 degrees in the left knee. After three repetitive motions there was no further loss of motion or objective evidence of pain in either knee. The Veteran complained of pain at the terminal end of motion. The Veteran was diagnosed with a mild meniscal tear and mild degenerative arthritic changes in the left knee and with osteoarthritis in the right knee. In May 2012, the Veteran underwent a VA examination. He reported that over the previous 8-9 months he felt that he knees wanted to give out, especially when he was out shopping. The Veteran stated that his pain came and went during the summer, but the he rated his pain as a constant 8/10. He stated that he walked as much as he could, but he had been taking the bus to the mall to walk. The Veteran reported walking approximately three blocks total each day. When asked about flare-ups, the Veteran stated that doing anything excessively could trigger them and that shopping for example bothered him and caused his knees to swell. The Veteran demonstrated 130 degrees of motion bilaterally with no objective evidence of painful motion. There was no limitation of extension. The examiner noted that the Veteran did increase breathing with any movements, and he did have to rest with the last repetition of his left knee. However, the Veteran was able to do repetitive motion testing with 3 repetitions without any additional loss of motion. The examiner did not several functional limitations including incoordination, with impaired ability to execute skilled movements smoothly. Importantly, there Veteran also had pain on movement. Anterior and posterior instability were both normal bilaterally. There was no medial-lateral instability. There was no history of patellar subluxation and no x-ray evidence of patellar subluxation, all facts providing more highly probative evidence against these claims. Diagnostic Codes relevant to knee disabilities include 5003, 5010 and 5256 through 5261. Under Diagnostic Codes 5003 and 5010, arthritis established by x-ray findings is rated on the basis of limitation of motion of the affected joints. When however, the limited motion of the specific joint or joints involved would be noncompensable under the appropriate diagnostic codes, a 10 percent rating is assigned for each involved major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. 38 C.F.R. § 4.71a. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Diagnostic Code 5256, which evaluates ankylosis of the knee, assigns a 30 percent rating for favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees. A 40 percent rating is assigned when there is ankylosis of the knee in flexion between 10 and 20 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5256. Diagnostic Code 5257 evaluates recurrent subluxation or lateral instability of a knee, and assigns a 10 percent disabling for a slight impairment, 20 percent disabling for a moderate impairment, and 30 percent disabling for a severe impairment. Diagnostic Code 5257 is not predicated on loss of range of motion. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). When semilunar cartilage is dislocated with frequent episodes of locking, pain and effusion into the joint a 20 percent rating is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5258. When semilunar cartilage has been removed, but remains symptomatic, a 10 percent rating is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Additionally, General Counsel Opinion 9-98 directs that with respect to Diagnostic Code 5259, limitation of motion is a relevant consideration and the provisions of 38 C.F.R. § 4.40 and 4.45 therefore must be considered. Under Diagnostic Code 5260, a 10 percent rating is assigned when flexion is limited to 45 degrees; a 20 percent rating is assigned when flexion is limited to 30 degrees; and a 30 percent rating is assigned when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261 (limitation of extension of the leg), a zero percent rating is assigned when extension is limited to 5 degrees; a 10 percent rating is assigned when extension is limited to 10 degrees; a 20 percent rating is assigned when extension is limited to 15 degrees; a 30 percent rating is assigned when extension is limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is assigned when extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The Board notes that separate ratings under Diagnostic Code 5260 and Diagnostic Code 5261 may be assigned for disability of the same knee joint. See VAOPGCPREC 9-2004. Additionally, VAOPGCPREC 23-97 held that a claimant who has both arthritis and instability of the knee may receive two separate disability ratings under Diagnostic Codes 5003-5010 and Diagnostic Code 5257 (or under Diagnostic Codes 5258-9) without violating the prohibition of pyramiding of ratings. It was specified that, for a knee disorder already rated under Diagnostic Code 5257, a claimant would have additional disability justifying a separate rating if there is limitation of motion under Diagnostic Code 5260 or Diagnostic Code 5261. At the outset, the Board notes that the Veteran's claim has been on appeal for more than a decade. It has been the subject of multiple Board decisions, and the Court of Appeals for Veterans Claims (Court) has vacated the Board's decisions on two occasions (in April 2005 and in January 2008). However, what should be noted is that the most recent JMR, which provided the basis for vacating the Board decision, was not predicated on an improper evaluation of the evidence. Rather, it was based on VA's failure to obtain updated Social Security Administration (SSA) records. In response to the JMR, SSA records were sought, but as discussed below, VA was notified that no additional SSA records were available (based on a detailed review of the evidence and history of this case, this result was not unexpected - if the evidence had been available, there would be no reason the Veteran himself would not have submitted this evidence). In any event, the requirements of the JMR have been fulfilled. On remand, to avoid any additional delay in the full adjudication of his case, an additional VA examination was obtained. Importantly, since the Veteran's claim was returned to the Board, his representative has not advanced any additional arguments with regard to the ratings for his knees. The representative has advanced extensive argument with regard to the TDIU claim, but did not voice any disagreement as to the conducting of or results of the recent VA examination or with the findings therein as related to the actual knee impairment. There was also no allegation that the Veteran was not appropriately examined for his flare-ups. The Board would presume that if the Veteran or his representative had any additional argument or evidence to submit with regard to his knees that it would have come forth by now during the more than a decade that this claims adjudication has spanned. Turning to the evidence of record, the Veteran's bilateral knee disabilities are each rated at 20 percent under Diagnostic Code 5261, which is premised on limitation of extension. However, to warrant a 30 percent rating, extension must be limited to 20 degrees or more, which as described above has not been shown during the course of his appeal. In fact, range of motion tests have consistently failed to show limitation of extension to even 15 degrees (as is required for a 20 percent rating). Simply stated, the best evidence in this case does not support the current evaluation, let alone a higher evaluation. The most restricted extension the Veteran ever demonstrated was at his January 2007 VA examination, where it was found that extension was -10 in both knees. However, at subsequent examinations in 2008 and 2012, the Veteran demonstrated full extension to 0 degrees. As such, a higher rating is clearly not warranted based on extension, even with consideration of pain. As noted, a separate rating, in addition to the rating based on limitation of extension, may be assigned if there is sufficient limitation of flexion. However, to warrant a compensable rating flexion must be limited to 45 degrees or less per Diagnostic Code 5260. Here, the Veteran demonstrated flexion to 130 degrees at his most recent VA examination, and range of motion testing from throughout the Veteran's appeal has never shown flexion to be less than 80 degrees in either knee. As such, the flexion has consistently greatly exceeded the limitation necessary for a compensable rating. The Board has considered whether a higher disability evaluation was warranted at any time during the course of the Veteran's appeal on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Veteran's main complaint throughout the course of his appeal is pain, and there is no question that the Veteran experiences bilateral knee pain. However, knee pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. at 43; see 38 C.F.R. § 4.40. As an initial point, it appears that the Veteran's bilateral knee pain is at least partially attributable to his morbid obesity. As the examiner noted in June 2003, the Veteran lost an addition 10 percent of function in his knees due to pain, but the pain was exacerbated by his morbid obesity. The Board has considered whether this statement would suggest a higher rating is warranted, but even if the full 10 percent were deducted from the Veteran's range of motion, he still would not reach a compensable level. At the examination the Veteran demonstrated range of motion from 0-100 degrees on the right and 0-90 on the left. Thus, even taking away 10 percent of the motion would leave more than 80 degrees of flexion. As similar result is seen using the results of the March 2002 VA examination which suggested an additional 20 percent functional loss during flare-ups and repetitive use. Yet, here, the Veteran demonstrated more than 100 degrees of motion in both knees, meaning that even if 20 degrees were effectively lost to pain, the Veteran's knee flexion would greatly exceed the limitation of motion necessary for a compensable rating. The Veteran and his representative have at times suggested that a higher rating is warranted based on flare-ups and functional limitation from pain. For example, the representative argued in the 2005 JMR that the Board had not properly taken into accounts the Veteran's flare-ups, which were the worst during the winter months. In response, the Veteran was provided with a VA examination in January, a traditionally cold weather month in Iowa. It is noted that the representative has not raised this issue since. Moreover, that examination, even though conducted in a time of cold weather, showed range of motion findings that were comparable to the range of motion findings from throughout the course of the Veteran's appeal. In fact, regardless of when range of motion testing was conducted throughout the course of the Veteran's appeal, it has routinely shown range of motion in both of his knees greatly exceeds what is required for even a 10 percent rating based on either limitation of flexion or limitation of extension. To this end, it is clear that the ratings the Veteran currently receives based on limitation of extension were assigned in recognition of functional limitation resulting from factors such as "pain". Without taking into consideration the Veteran's complaints of pain, there would be no rational basis for the current evaluations. Accordingly, the Board finds that a rating in excess of 20 percent is not warranted for either knee based on limitation of motion and pain. Other Diagnostic Codes may also be assigned in the context of a knee disability. Here, there has been no suggestion of ankylosis in either knee and Diagnostic Code 5256 is therefore inapplicable. The Board has also considered the application of Diagnostic Code 5257, which provides for a higher rating for the knee involving recurrent subluxation and lateral instability. However, the objective medical evidence does not show that the Veteran's service-connected knee disabilities are manifested by even slight recurrent subluxation or lateral instability. For example, at the VA examination in February 2001, there was no laxity found in either knee. At a VA examination in March 2002, no ligamental laxity was noted in either knee; and McMurray's and anterior drawer sign testing were both negative. No subluxation or lateral instability was present on examination was seen on examination in June 2003. At a VA examination in January 2007, McMurray's and anterior drawer sign testing were both negative. On examination in September 2008, McMurray's testing, anterior drawer sign, and Lachman's testing were all negative; and there was no sign of lateral or medial collateral instability. Finally at the VA examination in May 2012, anterior and posterior instability were both found to be normal bilaterally; there was no medial-lateral instability seen; and there was no history of patellar subluxation and no x-ray evidence of patellar subluxation. As such, the physical examinations conducted throughout the course of the Veteran's appeal have failed to document any objective evidence of either lateral instability or recurrent subluxation. VA and private treatment records were reviewed, but they too fail to show any indication that the Veteran has experienced knee instability or subluxation. The Board has reviewed the Veteran's statements to the effect that he feels that his knees give way, and notes that indeed the Veteran was told not to work on uneven surfaces, but the fact remains that the stability of his knees has been repeatedly tested throughout the course of his appeal, and the tests have consistently been negative and have therefore failed to demonstrate either lateral instability or recurrent subluxation. As such, the Board concludes that a compensable rating is simply not warranted under Diagnostic Code 5257. The Board has alternatively considered the application of Diagnostic Code 5258, which provides solely for the assignment of a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking", pain, and effusion into the joint. Semilunar cartilage is synonymous with the meniscus. An MRI in August 2005 showed complex tears involving the middle and posterior thirds of the medial meniscus on both sides. Additionally, small amounts of joint effusion were seen in the left knee at that time. This was the first suggestion of a meniscus problem, and it is noted that no treatment, surgical or otherwise, appears to have been given to any meniscus injury. Moreover, to warrant a compensable rating under 5258, a Veteran must experience frequent episodes of "locking", pain, and effusion into the joint. Here, the only time there is any suggestion of effusion was on the MRI. On physical examinations in March 2002, October 2002, June 2003, January 2007, and September 2008 the examiners consistently found no effusion to be present in either knee. Treatment records similarly fail to show effusion of either knee. As such, the evidence of record does not establish the presence of frequent effusion into either knee joint as would be required to meet the criteria of this Diagnostic Code. Therefore, a compensable rating is not warranted under Diagnostic Code 5258. Diagnostic Code 5259 was considered, but the meniscus has not been removed from either of the Veteran's knees. As such, a separate 10 percent rating is not warranted pursuant to Diagnostic Code 5259. There has also not been any indication of impairment of the tibula and fibula so as to warrant a rating under Diagnostic Code 5262. As described, the evidence of record fails to support a schedular rating in excess of 20 percent for either knee, and to that extent, the Veteran's claim is denied. The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. This means that initially there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. However, in this case, the medical evidence fails to show anything unique or unusual about the Veteran's bilateral knee disabilities that would render the schedular criteria inadequate. The Veteran's main symptom in both knees is pain which as explained above has been specifically contemplated in the assigned ratings. Accordingly, referral for consideration of an extraschedular rating is not warranted. For the foregoing reasons, the Board finds that the preponderance of the evidence is against finding that a higher disability rating is warranted for the Veteran's service-connected knee disabilities. Consequently, the Veteran's claim must is denied. II. TDIU A TDIU may be assigned where the schedular rating is less than total when the disabled Veteran is, in the judgment of the Board, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this shall be ratable at 60 percent or more, and 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 disability or more. 38 C.F.R. § 4.16(a). When, as here, a partial disability results from disease or injury of both arms, or of both legs, or of paired skeletal muscles, the ratings for the disabilities of the right and left sides will be combined as usual, and 10 percent of this value will be added (i.e., not combined) before proceeding with further combinations, or converting to degree of disability. The bilateral factor will be applied to such bilateral disabilities before other combinations are carried out and the rating for such disabilities including the bilateral factor in this section will be treated as 1 disability for the purpose of arranging in order of severity and for all further combinations. 38 C.F.R. § 4.26. The Veteran asserts that he is unable to work on account of his service connected bilateral knee disabilities. Each knee is rated at 20 percent, and when factoring in the bilateral factor, the Veteran's combined rating is 40 percent. As such, he fails to meet the schedular criteria for a TDIU. Nevertheless, a TDIU may still be available if the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The Veteran and his representative have continually argued that his service connected bilateral knee disabilities prevent him from obtaining or maintaining substantially gainful employment. For example, in December 2012, the Veteran's representative wrote a letter citing to a number of medical statements from throughout the course of the Veteran's appeal as evidence. The letter referenced the following evidence (phrased as it was by the representative in his letter): a) The Veteran's testimony in June 2001 that his knee disabilities forced him to leave his job as a custodian at the post office, and that he was unable to walk long distances, could not mow the grass and was restricted from working outside in winter for fear of hurting himself on the incapacitating episodes of intervertebral disc syndrome. b) The February 2001 letter from Dr. C.V. who noted that the Veteran's work restrictions were no squatting or climbing, alternate between standing and sitting as tolerated, lifting restrictions, no walking long distances, no working outdoors when temperature was below 32 degrees, and avoiding working on uneven surfaces due to his arthritis and no night work due to his diabetes. c) An April 2001 letter from Dr. B.R. which reportedly acknowledged the Veteran's belief that his disabilities precluded substantially gainful employment, and agreed that the Veteran was experiencing the limitations noted in Dr. C.V.'s letter. d) A March 2001 note from Dr. B.R. suggesting that the degenerative joint disease was probably enough to have him disabled from his job. e) A February 2001 examination from Dr. P.L. noting that the Veteran had limitations on his work duties due to his knees. The representative cited to a part of the record in which the doctor found that the degenerative changes in the Veteran's knees were progressing quite rapidly and were causing an increased loss of functional impairment due to pain, weakness, and limited motion. The doctor opined that the condition would continue to incapacitate the Veteran's ability to ambulate without fatigability, incoordination and a level of comfort. f) A January 2007 letter from Dr. H.H in which the doctor wrote that the Veteran's service connected bilateral knee conditions had a moderate effect on his activities of daily living and his ability to work as a maintenance person. The bilateral knee condition was also found to affect the Veteran's ability to kneel down, climb ladders, or stand for more than 30 minutes. g) A November 2002 SSA medical statement which found that the Veteran was limited to sedentary work and that his past work as a janitor was precluded. It was allowed that the SSA had found that while his condition prevented him from returning to his past work, considering his age and education as well as his overall conditions he would be capable of performing less strenuous types of work. h) A letter from OPM to the Veteran noting that his disability retirement had been approved. It was noted that the Veteran was disabled and could not perform his job as a custodian with or without restrictions. i) The May 2012 VA examiner's opinion. The representative felt that the claim should be referred to the Director of Compensation and Pension for extraschedular TDIU consideration. Having reviewed the evidence, the Board ultimately disagrees with the contentions of the Veteran and his representative. While the representative's letter did cite to a number of medical records, the representative often blurred the lines as to what actually rendered the Veteran "unemployable" at this time. As noted, the evaluation of whether a TDIU is warranted is limited to the impairment caused by service connected disabilities alone. That is, the impact of non-service connected disabilities is not to be considered. In this case, the Veteran has numerous non-service connected disabilities, including poorly controlled diabetes mellitus, morbid obesity, hypertension, hyperlipidemia, peripheral neuropathy of the feet, and probable carpal tunnel syndrome (per a 2008 VA examination). From a review of many of the pieces of evidence above, it is clear that the medical opinions were based on consideration of all of the Veteran's service connected and non-service connected disabilities, not just his service connected knee disabilities, which are only a small part of the Veteran's overall disability picture. In January 2001, the Veteran was seen by a VA doctor who was consulting with the Veteran about job limitations. The doctor stated that while the Veteran's job at the post office might not have been suitable for him, he did not believe the Veteran was eligible for total disability. The doctor recommended that the Veteran would be eligible for many other jobs, and should apply for them if his post office job could not accept him with all his limitations. This same opinion was reiterated to the Veteran again in June 2001. In February 2001, Dr. C.V. did provide a list of job limitations, but he did not specifically assert that the Veteran was unemployable as a result of them; and in March 2001, Dr. B.R. signed a letter indicating that the Veteran was allowed to return to work with the provided restrictions. In an April 2001 letter, Dr. B.R. stated that the Veteran had come to see him to get a disability note. The doctor noted that the Veteran had a history of cardiac valve replacement, as well as degenerative joint disease with chondromalacia of both knees, morbid obesity, diabetes mellitus, peripheral neuropathy in the feet and hands, and hyperlipidemia. The doctor stated that the Veteran's medical conditions were stable, but that as he aged, the degenerative changes in his knees and the neuropathy would not improve, such that he did not expect a recovery. As such, this opinion groups the Veteran's service connected disabilities and non-service connected disabilities together, citing two service connected problems and multiple nonservice connected problems. In many ways, providing evidence against this claim as it clearly indicates multiple nonservice connected problems. Moreover, the letter does not show that the Veteran's knee disabilities alone rendered him unemployable, only that they impaired his ability to work. However, that the Veteran's knee disabilities impair his ability to work issue is not under debate, as the very purpose of VA disability ratings is an acknowledgement that a disability causes some occupational impairment. If the Veteran had no occupational impairment associated with his knees, there would be no basis for the current evaluation. In June 2001, the Veteran was evaluated in conjunction with an application to OPM for disability retirement. N.J.P, DO, wrote that the Veteran was disabled and could not perform his job as a custodian with or without restrictions. However, once again, at no time did the doctor distinguish between service connected disabilities and non-service connected disabilities, nor did he find the Veteran's service connected knee disabilities precluded employment. In November 2001, the Veteran was seen by a medical consultant at the Iowa Disability Determination service. The Veteran alleged that his knees were shot. The consultant stated that while the combination of the Veteran's degenerative joint disease of the knees and obesity would be expected to limit him exertionally, his activities of daily living were consistent with the ability to walk/stand for at least 2 hours in an 8 hour day, and his ability to sit would not be limited. In February 2004, Dr. B.R. wrote a letter indicating that the Veteran had insulin dependent diabetes and severe peripheral neuropathy in the feet and hands which had been progressively worsening. It was also noted that the Veteran had degenerative arthritis in both knees which made movement fairly limited. However, Dr. B.R. concluded that the peripheral neuropathy had become more of a problem for the Veteran in that even sedentary jobs might be difficult for him. Thus, the doctor did not preclude sedentary jobs based on the Veteran's service connected disabilities, only based on non-service connected disabilities, providing limited evidence against this claim. In September 2008, the Veteran underwent a VA examination. The examiner evaluated the Veteran's bilateral knee disability and was fully apprised as to the Veteran's employment history. The Veteran asserted that he was precluded from all substantially gainful employment, stating that he could not stand or sit for any period of time. The examiner stated that the Veteran had obvious deconditioning on account of his morbid obesity; and acknowledged that the Veteran's knees might cause a problem performing heavy labor, climbing ladders, and going up and down stairs, but the examiner nevertheless found that a sedentary job would be acceptable. Thus, the examiner concluded that the Veteran did not have any medical issue that would preclude him from a substantially gainful employment, providing more highly probative evidence against this claim. The Veteran was provided with a second VA opinion in May 2012. The examiner accurately recorded the Veteran's education and work experience, and was well versed in the employment restrictions which had previously been prescribed. The examiner noted that the Veteran could stand for 5-10 minutes, walked 3 blocks daily, and took the bus. The examiner found that the Veteran would need to avoid uneven surfaces, ladders, and excessive lifting. However, she found that he was able to sit without problems, such that sedentary activities should be possible. Reasoning that driving and sedentary activities were possible, the examiner concluded that the Veteran would not be precluded from all types of substantially gainful employment. The Veteran's representative has argued that the examiner's 2012 opinion was contradictory and therefore inadequate, asserting that the examiner had opined that the Veteran's knee disabilities did not affect his ability to work, but also concluded that the knee disabilities caused him to avoid uneven surfaces, ladders, and excessive lifting. The Board understands the thrust of the representative's argument, and it is acknowledged that the opinion could have been worded better. However, when the opinion is read as a whole, there is no question that the examiner is of the opinion that the Veteran was not precluded from sedentary employment by his service connected disabilities, which is the deciding question in this case. The representative in his arguments has attempted to distract from this fact, but has not offered an alternative medical opinion which actually shows that the Veteran's service connected disabilities, alone, have be precluded him from all types of substantially gainful employment. The representative has also argued that the examiner's opinion failed to take into account the Veteran's educational and occupational history, noting that the Veteran had only worked at a Hy-Vee grocery store and at the post office in labor intensive positions. The representative felt that with the Veteran's high school only education, he lacked the requisite educational or occupational experience to qualify for any sedentary employment. However, while the Veteran's education and work experience may limit his employment opportunities, it does not seem that the lack of a college degree would preclude the Veteran from all sedentary employment. The Board acknowledges that the Veteran has been unemployed for a number of years. However, the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Here, the medical professionals who have specifically reviewed the issue of whether the Veteran's service connected disabilities alone preclude him from substantially gainful employment have unanimously concluded that he is not precluded from performing the physical and mental acts required by employment by his service connected disabilities. In an October 2008 brief, the Veteran's representative argued that VA had failed the duty to assist by not providing that Veteran with a social and industrial examination. However, the Federal Circuit has recognized that it is within VA's discretion to determine whether a vocational assessment is required based on the facts of a particular case. See Smith v. Shinseki, 647 F.3d 1380, 1386 (Fed. Cir. 2011). The Federal Circuit explained that assessment might be required "if, for example, the veteran were found medically qualified for a particular type of job, but there was an unusually difficult question as to whether the veteran had the educational or vocational skills for that position." Id. Accordingly, Smith does not require VA to provide a vocational assessment in every instance where a claimant is seeking a total disability rating based on individual unemployability. Smith does require the Board to at least consider whether a vocational assessment is required and to support its determination that one is not required with an adequate statement of reasons or bases. Here, the two medical opinions which address the question of employment and service connected disabilities both found that the Veteran was not precluded from substantially gainful employment based on his service connected knee disabilities. While the Veteran's representative cited to a number of letters from a variety of medical professionals, aside from the opinions of the VA examiners, none of the letters actually addressed the seminal question in this case which is whether the Veteran's service connected disabilities precluded him from obtaining or maintaining substantially gainful employment. There is no dispute that the Veteran's disabilities limit his ability to work, but it is clear from the medical evidence of record that the Veteran's knees do not preclude all forms of sedentary employment. It is unclear what benefit a vocational survey would provide, given that sedentary employment has been found to be possible despite the Veteran's knee disabilities. Here, the Board does not find that the evidence of record mandates that such an opinion be obtained. Accordingly, the Veteran's claim for TDIU is denied. II. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in February 2006, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The Board finds that any defect concerning the timing of the notice requirement was harmless error. Although the notice provided to the Veteran was not given prior to the first adjudication of the claim, the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and ample time to respond to VA notices. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Additionally, the Veteran's claim was readjudicated following completion of the notice requirements. The Board finds that the Veteran has not been prejudiced by any failure of VA in its duties to notify and assist him, and that any such violations could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has neither alleged, nor demonstrated, any prejudice with regard to the content or timing of VA's notices, despite the fact that his claim has been before the Court on two separate occasion. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Thus, adjudication of his claim at this time is clearly warranted. As to VA's duty to assist, 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). VA and private treatment records have been obtained. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. In the most recent JMR, it was noted that VA should obtain any missing SSA records. VA will make as many requests as are necessary to obtain relevant records from a Federal Department or agency and will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile. 38 C.F.R. § 3.159(c)(2). Accordingly, VA sought the SSA records; but a response was received from SSA indicating that no additional records existed. The Veteran was notified of the inability to locate the records in a February 2010 letter and given the opportunity to obtain the letters himself. See 38 C.F.R. § 3.159(e). However, no additional records have been forthcoming. The Board therefore concludes any additional search would be futile and a remand is not necessary to seek any treatment records. See 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). The Veteran was also provided with a number of VA examinations (the reports of which have been associated with the claims file). As discussed above, the Veteran's representative has argued that the most recent examiner's opinion was inadequate. However, this argument appears to mostly be a disagreement with the examiner's ultimate conclusion. A plain reading of the examination report shows that the examiner was fully apprised of the critical aspects of the Veteran's case, and both personally interviewed and examined the Veteran. Moreover, her opinion was supported by the evidence of record. As such, the Board considers this opinion to be fully adequate. It is important to note that the evidence, overall, provides particularly clear highly probative evidence against the Veteran's central claims, notwithstanding an defect in any one piece of evidence. There is substantial evidence in this case, over the decade that his case had been adjudicated and repeated returned to the Board, that objective testing does not support the current evaluations, let alone higher evaluations, that the Veteran has severe nonservice related disabilities, that his service connected disabilities are not the cause of his unemployment, and the he could work, notwithstanding his disabilities. While it could be argued that there may be a flaw in a particular piece of evidence, such as a particular point (of multiple points) made within one doctor's statement (of many doctor's statements) obtained by VA over the course of a decade, the mound of medical evidence in this case provides, overall, highly probative evidence against the Veteran's central claim that he cannot work as the result of his bilateral knee disability. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In light of the denial of the Veteran's claim, no disability rating or effective date will be assigned, so there can be no possibility of any prejudice to the Veteran under the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER A rating in excess of 20 percent for a right knee disability is denied. A rating in excess of 20 percent for a right knee disability is denied. A TDIU is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs