Citation Nr: 1311396 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 06-13 266 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to a total disability evaluation based on unemployability (TDIU) due to service connected disabilities. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran served on active duty from September 1991 to June 1993. This matter comes before the Board of Veterans' Appeals (Board) from a June 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this issue in January 2010 for additional development. Subsequently during the pendency of the appeal the Appeals Management Center (AMC) in a February 2011 rating decision, granted service connection for a right knee disorder and in a June 2011 rating decision, granted service connection for a right ankle scar. Thus these matters are no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The Board in a June 2011 decision, adjudicated the right ankle increased rating claim on a schedular basis, confirming the 30 percent adjudication that was in effect, and remanded this matter again in June 2011 for the purpose of affording proper development and adjudication of a claim for TDIU pursuant to a decision of the Court of Appeals for Veterans Claims in Rice v Derwinski Vet. App. 22 Vet. App. 447, 452 (2009). Such has been completed and this matter is returned to the Board for further consideration. FINDINGS OF FACT 1. Service connection is currently in effect for the following conditions, residuals of a right ankle sprain rated as 30 percent disabling; a right knee disorder rated as 10 percent disabling and a right ankle scar rated as 10 percent disabling. The combined disability rating is 40 percent. 2. The Veteran's service-connected disabilities are not of such severity as to render him unable to obtain or maintain substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU due to service-connected disability are not met. 38 U.S.C.A. §§ 1155 , 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159 , 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Duty to Notify The United States Court of Appeals for Veterans Claims' decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. Further, the notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, there is no predjudice to the Veteran in the notice failing to advise of the degree of disability and effective date given that this claim is being denied. In the present case, the Veteran was provided a letter in February 2005 that informed him of the need to demonstrate a worsening in his disability, limited at that time to his left ankle, (and from which the TDIU claim is derived). This letter was sent prior to the initial June 2005 RO decision in this matter. The Veteran was subsequently notified of how effective dates are assigned in a March 2010 letter. While this letter was not sent until after the initial RO decision in this case, the claim was subsequently readjudicated, no prejudice has been alleged, and none is apparent from the record. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). The most recent supplemental statement of the case was issued in September 2012. During the pendency of this appeal the Court's decision of Vasquez-Flores v. Peake 22 Vet App. 37 (2008) had been issued. Subsequently the Court of Appeals for the Federal Circuit vacated the Vasquez-Flores decision to the extent that the notice had required the VA to notify the Veteran of alternative diagnostic codes or potential daily life evidence and held that the duty to assist notice need not be Veteran specific. See Vasquez-Flores v. Shinseki No 08-7150 (Fed Cir. Sep 4, 2009). Thus it is no longer necessary to provide such notice for an increased rating, and it was noted to not be applicable to an increased initial rating, TDIU or extraschedular claims such as in this case. Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) . In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 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.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 Fed. Cir. 2006). Duty to Assist Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. The record in this case includes service treatment records, VA treatment records, private treatment records, and VA examination reports. The electronic folder has also been reviewed. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). No additional pertinent evidence has been identified by the claimant. The Veteran was afforded VA examinations in July 2011. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Board notes that the VA examination reports contain sufficiently specific clinical findings and informed discussion of the Veteran's disabilities in regards to their impact on his occupational function. The reports, prepared by competent medical experts and informed by direct inspection and interview of the Veteran, provide probative medical evidence concerning the features of disability applicable to the rating criteria in this case. The examination reports obtained contains sufficient information to decide the issue on appeal. See Massey v. Brown, 7 Vet.App. 204 (1994). Thus, the Board finds that a further examination is not necessary. Additionally, this matter was referred to the Director of Compensation and Pension for an extraschedular opinion which was obtained in September 2011. For all the foregoing reasons, the Board concludes that VA's duties to the claimant have been fulfilled with respect to the issue on appeal decided at this time. Analysis-TDIU The Veteran contends that entitlement to TDIU is warranted due to his service connected disabilities. In order to establish a total disability rating based on individual unemployability, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. In reaching such a determination, the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). 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; provided that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 4.15. The law provides that a total disability rating 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, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the above purpose of one 60 percent disability or one 40 percent disability, in the combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor (2) disabilities resulting from common etiology or a single accident (3) multiple injuries affecting a single body system, e.g. orthopedic, digestive, etc. (4) multiple injuries incurred in action or (5) multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability are met and in the judgment of the rating authority, such service-connected disabilities render the Veteran unemployable. 38 C.F.R. § 4.16 (a) . A total disability rating may also be assigned on an extraschedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). In this case, the Veteran does not meet the percentage requirements set forth in 38 C.F.R. § 4.16(a) for consideration of a TDIU. Service connection is currently in effect for the following conditions, residuals of a right ankle sprain rated as 30 percent disabling; a right knee disorder rated as 10 percent disabling and a right ankle scar rated as 10 percent disabling. The combined disability rating is 40 percent. If the Veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director of Compensation and Pension Service for extra-schedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). See also Fanning v. Brown, 4 Vet. App. 225 (1993). The RO determined that referral to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for an extraschedular rating was warranted in this case and obtained such an opinion in September 2011. This opinion determined that an extraschedular rating was not warranted. The Board must evaluate whether there are circumstances in the Veteran's case, which would justify a TDIU. 38 C.F.R. §§ 3.341(a) , 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). Among the evidence pertinent to this matter is the report of a September 2004 VA examination limited to the left ankle which noted the Veteran's difficulty maintaining his current job. He was getting ready to switch to a driving job because of the increased pain and his inability to stand for more than 30 to 40 minutes. He had episodes of falls in the past when his ankle popped out. He tried using an ankle brace in the past without any improvement in symptoms. He currently worked as an auto mechanic. However his work was limited due to pain in the right ankle. The examiner described the Veteran's ankle pain as worsening and he could no longer run very much. The Veteran said he had to watch how he walked to prevent the ankle from popping out. Examination of the right ankle revealed he was unable to completely dorsiflex or plantar flex his right ankle. There was increased protrusion of the lateral malleolus of the right ankle. Range of motion showed negative 10 degrees dorsiflexion and 10 degrees plantar flexion. Repetitive motion further decreased dorsiflexion to negative 10 degrees but plantar flexion was unchanged. X-ray revealed no acute fractures. There were calcified densities at the medial malleolus suggestive of old trauma or unfused secondary ossification centers. A diagnosis of status post right ankle fracture with impaired function, chronic pain and impaired mobility was given. No opinion as to his employability was given. A December 2004 note revealed complaints of the ankle giving him problems since 1992, and his knee was starting to crack. He could not exercise. He could not keep his job because of it. He denied taking any medications, stating he did not believe in doing so. However another December 2004 outpatient treatment note indicated that the Veteran was self employed delivering horse trailers. A March 2005 VA examination for right knee and ankle conditions addressed both conditions in pertinent part. Regarding the right ankle he reported chronic pain and swelling. He had frequent falls due to the ankle giving out and he constantly wore a brace on it. The examiner indicated that the Veteran was limited to standing 15 to 30 minutes and could walk between a quarter of a mile and one mile. The Veteran also reported severe weekly flare-ups of his ankle symptoms once a week requiring complete rest for 1 or 2 days and he was unable to work or do household chores. He was noted to have a statement from an employer saying he would miss 1-2 days a week due to recurrent pain and swelling of the right ankle. Examination of the right ankle showed objective evidence of pain with dorsiflexion and plantar flexions limited to 10 degrees, with pain beginning at 0 degrees. The examiner concluded there was no additional limitation of motion on repetition. There was no right ankle ankylosis but there was instability. X-ray revealed no definitive fractures and the ankle mortise was intact. Regarding the right knee, he reported swelling once a week, taking a couple days to subside. He had difficulty walking very far due to the right knee. He could only walk a half mile. Joint symptoms included deformity, pain and effusion. Flare-ups took place weekly, during which he had to rest 1 or 2 days and was unable to work or do household chores. Examination of the right knee was from 0-110 degrees without pain. He had no additional loss of motion on repetitive use. The diagnosis was limited motion of the ankle and chronic arthralgia right ankle with limited motion. Also diagnosed was chronic right knee strain, deformity of tibial tuberosity. In regards to occupational effects, the examiner commented that the Veteran was currently unemployed and had not been able to work since he reinjured his right ankle in December due to recurrent swelling and pain. The effects of the right ankle and knee conditions on activities of daily living were that they prevented exercise, sports and recreation. There was no affect on any other activities. A March 2005 VA outpatient record addressing the right ankle revealed full dorsiflexion and plantar flexion with tenderness. Chronic right ankle strain was diagnosed. An April 2005 MRI of the right ankle showed findings which most likely represented an old injury versus post surgical changes. An April 2005 outpatient treatment record indicated that the Veteran was unable to work since September 2004 due to his right ankle disability. However he was noted to have full range of motion of the right ankle at this time. He only had tenderness at the posterior of the distal fibula over the peroneal tendon, with minimal if any, swelling. No crepitus or instability was found at this time. According to a November 2005 VA orthopedic clinic note, the Veteran's right ankle pain was worsening. He used a cane to assist with ambulation and he had a guarded gait. He had effusion and increased inversion mobility with lateral joint laxity. Drawer signs were positive. He could dorisflex to 10 degrees and there was no peroneal tendon subluxation on resisted motion. VA treatment records revealed that in August 2006, the Veteran reported having received a scholarship from an engineering school. He was noted to have chronic right ankle pain and walked with a limp. He underwent a right ankle ligament reconstruction in December 2006, with the preoperative and postoperative diagnoses both of chronic right ankle lateral instability. Subsequent follow-up treatment of the right ankle included an April 2007 note revealing the Veteran was ambulating with a short leg cast. His wound along the lateral portion of the foot was well healed with no sign of infection or erythema. His scar was tender to massage. Swelling was significantly decreased. He had stiffness on dorsiflexion to 0 degrees and plantar flexion to 30 degrees. He was assessed with status post right ankle lateral collateral ligament reconstruction. He subsequently was to undergo physical therapy including swimming therapy and aggressive ASTIM therapy of the ankle scar. On follow-up in May 2007 his ankle dorsiflexion was to 0 degrees and plantar flexion was to 45 degrees. A June 2007 prosthetics consult revealed he was requesting a right ankle brace, as he was getting custom foot orthotics and would be more comfortable getting a brace. He complained that his right ankle gave way while walking, especially for long periods of time. He had decent range of motion at his ankle and needed an afternoon appointment as he was attending school in the morning. He was noted to drive about an hour to school. In December 2007 he was noted to be attending the engineering school but was on Christmas break. A February 2008 primary care note indicated that he was attending the school 5 days a week and would be graduating in one year and one semester. He was also noted to be obtaining a personal computer tablet through Vocational Rehab. He was having problems carrying his book sack to engineering classes. The school was about 70 miles away. His ankle complaints in February 2008 included increased sensation around the lateral plantar aspect of the foot and ankle and decreased sensation around the surgical site. He had some pain on motion but no longer suffered instability of the right ankle that he had prior to surgery. On examination, his range of motion was from 0 to 40 degrees. X-rays showed minimal degenerative changes. He was diagnosed with status post right ankle lateral ligament reconstruction times 14 months and mild right ankle DJD. In an August 2008 patient education record he was noted to read at a college level. He walked with a limp and using a cane. An April 2009 routine follow up visit he reported a return of pain to the ankle with increased instability. He was still attending engineering college, but did not have much physical activity due to ankle pain. Another April 2009 note described reports of falls from instability getting in and out of the shower area. In June 2009 he was seen for his ankle and was noted to wear a hinged brace intermittently. His foot was more stable than prior to surgery. His range of motion was from 0 to 40 degrees. Drawer sign was negative and there was no erythema or swelling about the ankle joint. The report of a June 2010 VA examination addressed the right ankle and knee disabilities. In regards to the right ankle, he reported pain, stiffness, weakness, giving way and deformity. He described being limited in his ability to stand 10 minutes and walking 10 yards. Examination revealed an antalgic gait with no evidence of abnormal weight bearing. He had pain at rest, instability, weakness and abnormal motion. He had dorsiflexion to 10 degrees and plantar flexion to 25 degrees. He had objective evidence of pain following repetitive motion, but no additional limitation of motion. X-rays taken showed the ankle to be stable with no acute changes. The diagnosis (mistakenly attributed to the left ankle) was sprain, status post surgery and limitation of movement of flexion. In regards to the right knee the Veteran reported pain in the right knee of 4/10 intensity, with symptoms including giving way and stiffness in addition to the pain. Examination revealed an antalgic gait with crepitations, clicks and snaps. There was no grinding, instability, patellar or meniscus abnormality. He had no other knee abnormality. His motion was 0-110 degrees with pain. He had no additional limits after 3 repetitions. X-ray of the knee diagnosed probable residuals from Osgood-Schlatter's disease otherwise negative. The diagnosis was Osgood-Schlatter's disease right knee with limited flexion. Also diagnosed was service connected ankle sprain status post surgery with loss of motion. The effects of the right ankle and knee disability on his usual occupation were problems lifting, carrying, weakness or fatigue and pain. The effects of such disability on activities of daily living were moderate on chores, shopping, travel and dining. It prevented sports and recreating. There was no effect on feeding, dressing, toileting or grooming. He was described as unemployed. A December 2010 VA treatment note assessed his pain at a 5/10 level. He persisted in using a cane and walked with a limp for chronic right ankle pain. VA primary care records from April 29, 2011 revealed that the Veteran reported a college level education. He indicated he had not been in primary care for 2 years, stating he had been busy with work. His history was said to include working as an engineer. His physical complaints were about pain in the right foot, extending from the heel to the outer ankle as the day progressed. He reported general arthritis pain on review of systems, and the examination itself revealed full range of right ankle motion which was non tender and without edema. Generally the VA treatment notes disclosed no significant findings or complaints pertaining to the right knee or right ankle scarring, except as noted above in the records from December 2004, April 2007 and February 2008. The report of a July 2011 VA examination for TDIU purposes noted the Veteran's usual occupation had been as an automobile mechanic until about 2005. The Veteran stated that he had been unable to work since that time due to right ankle and right knee problems. A review of CPRS notes from April 29, 2011 referenced the Veteran's completion of schooling, and also referenced the Veteran as having worked for the past year, with an occupation as an engineer reported. Other records reviewed included records from an orthopedic visit in 2008 wherein he was advised not to wear an ankle brace except when running or playing sports. His last orthopedic visit in 2009 was noted to describe a stable ankle examination without indication of right knee problems at that time. Regarding his current right ankle problems, he was noted to report that the right ankle turned very easily which made him susceptible to falls. His history of ankle reconstruction in 2006 was noted. He indicated that ankle fusion was the next option. He reported constant pain, limited motion and difficulty with standing and walking. In addition to pain and limited motion, the joint symptoms included giving way and weakness. He was noted to wear an ankle brace and used a cane. He had no acute flare-ups. Physical examination of the right ankle revealed pain at rest and guarding of movement. He had no signs of instability or tendon abnormality. Range of motion revealed 0-5 degrees dorsiflexion and 0-35 degrees plantar flexion. He had no additional loss of motion after 3 repetitions and no ankylosis. X-ray was stable with no acute changes but probable accessory ossicles noted. The diagnosis was chronic right ankle sprain. There were significant affects of occupational activities such as decreased mobility, problems lifting and carrying and decreased strength of the lower extremity. He also had pain. The affects on activities of daily living included moderate effects on chores, shopping, exercise and recreation. He had mild affects on bathing and dressing. He had severe affects on sports and driving. No affects were on grooming and toileting. In regards to the right knee disorder pertaining to TDIU, he had Osgood Schlatter's (O-S) condition likely aggravated by falls. He took Tramadol twice a day for knee pain. He guarded his knee when walking. He reported an achy throbbing pain in the knee on weight bearing. Weight bearing and bending the knee also caused sharp shooting pains of the anterior knee. He had no acute flare-ups. He indicated he was not able to drive due to a difficulty working the foot pedals. He was not able to tolerate prolonged standing or walking. He was not able to kneel or squat. He had limited lifting and carrying ability. His current treatment was medicine and activity limitation. He had fair response to treatment. His joint symptoms included stiffness, weakness, and pain. There was no deformity, giving way, instability, incoordination, episodes of dislocation/subluxation, locking symptoms of inflammation or flare-ups of joint disease. Examination of the right knee included general joint findings of crepitus/crepitation, and severe guarding of movement (flexion) when sitting on examination. No significant findings such as grinding, instability, nor abnormalities of the patella, meniscus, tendons or bursae were shown. His range of motion was 0-90 degrees flexion, with normal extension at 0 degrees. There was some pain on repetitive motion, but no additional limits after 3 repetitions. X rays showed probable residual O-S disease, but was otherwise negative. The diagnosis for the right knee was residuals O-S disease with significant affect on his occupation shown to be decreased mobility, problems with lifting and pain. It had moderate effects on chores, exercise, sports and driving. It had mild effects on shopping, recreation, travel, bathing and dressing. There was none on toileting or grooming. The Veteran's standing limitations from his knee and ankle were of being able to stand 15 minutes and unable to walk more than yards. He used a brace with a hinged ankle brace to the right ankle/shoe. His gait was antalgic and he walked with a cane. He held his right leg stiff with tense muscles from maintained knee extension. He avoided bending due to the knee/ankle. The examiner's opinion on the service connected right ankle and knee conditions on employability was that they prevent his sustained participation in physical occupations that require prolonged standing or walking. Also prevented were occupations requiring squatting, lifting, or frequent climbing of stairs or ladders. His right ankle and right knee conditions would not prevent his sustained participation in sedentary employment. A July 2011 VA examination of the right ankle scar revealed a linear surgical scar of the lateral right ankle of the right foot. This was L-shaped around the lateral malleolus. It was smooth, well healed, without redness, skin breakdown, swelling, keloids, tissue loss or adherence. The scar did not affect his ankle motion or function. It measured 0.5 inches wide and maximum length of 17 inches. The total area of the scar was less than 6 inches. It was painful, but again had no signs of breakdown, edema, keloid or other disabling affects. The diagnosis was right ankle scar. The scar did not significantly affect the Veteran's ability to work in either sedentary or physical occupations. In September 2011 an extraschedular opinion was obtained by the Director of Compensation and Pension. The opinion addressed the affects of the service connected disorders of the right ankle sprain, the right knee disorder and the right ankle scar on the Veteran's employability. The available records were reviewed, and were said to indicate that the Veteran was not gainfully employed since 2005. Findings from the prior VA examinations of July 2010 and 2011 were addressed with the opinion from the July 2011 VA examination noted to indicate that the Veteran's physical disabilities would preclude a physical occupation, but not a sedentary one. The extraschedular opinion was that the evidentiary record when considering the totality of the evidence does not support the notion that the Veteran is unemployable under any circumstances. The above noted medical opinion from the July 2011 VA examination indicated that sedentary work is a viable option. The medical evidence did not show an extreme loss of motion or ankylosis. The evidence supported a finding that the Veteran was not able to maintain employment that would entail heavy labor or lifting, but it did not support overall unemployability. Thus entitlement to TDIU on an extraschedular basis was found not to be warranted. The Veteran in a written statement dated in August 2011 contended that the VA examination was inadequate and wanted another. He argued that he was pushed beyond his range of motion for the knee and ankle. He said he can no longer drive due to his joints. He reported the scar of the right ankle was tender and painful and argued that it was more than 6 square inches in size. Taking into account all relevant evidence, which has included consideration of the decision made by the Director of Compensation and Pension on the requests for extraschedular consideration, in September 2011, the Board finds that entitlement to TDIU on an extraschedular rating is not warranted under 38 C.F.R. § 4.16(a). In this regard, the Board notes that the evidence of record does indicate that the Veteran's right ankle and right knee disabilities have resulted in his being precluded from certain types of job that require physical activity or heavy labor, including jobs that require prolonged standing or walking. Also prevented are occupations requiring squatting, lifting, or frequent climbing of stairs or ladders. In regards to the service connected scarring of the right ankle, this is not shown to preclude any type of work activity. There is no indication that the Veteran is precluded from any form of employment due to his service connected disabilities. To the contrary, the evidence suggests that the Veteran engaged in full time education after having received a scholarship from an engineering school, as reported in a August 2006 VA treatment record. Subsequent VA treatment records from 2007 through 2009, as discussed above, suggest full time attendance at the engineering school, which required him to drive one hour to attend. There is subsequent evidence that suggests not only has the Veteran obtained a college level education, but that he is currently working as an engineer. This is shown in the records from April 29, 2011, which revealed that the Veteran reported a college level education he had been busy with work for the past 2 years, and he worked as an engineer. While the Board agrees that the Veteran's right ankle and right knee disabilities have some impact on his employability, the Board is of the opinion that this impact is accurately reflected in the level of disability the Veteran is currently receiving for his right ankle, right knee and residual scarring of the right knee. The extraschedular opinion from the Director of Compensation and Pension in September 2011 took into account the medical and lay evidence including the VA examinations up July 2011 and provided the opinion that the Veteran is not rendered unemployable due to his service-connected disabilities. The opinions did note, and the evidence does show that the Veteran is precluded from heavy labor occupations, such as the evidence shows he has previously done. However it was pointed out that the opinion from the July 2011 VA examination indicated that sedentary work was a viable option. While the extraschedular opinion did not specifically cite to the evidence showing the Veteran's participation in full time education, such evidence further supports the premise that the Veteran is capable of sedentary employment. To the extent that the Veteran continues to argue that his service connected disabilities render him unemployable, his credibility is adversely affected by the evidence that suggests he attended engineering school on a full time basis during the pendency of this appeal, and that he apparently is currently working as an engineer. In summary, the objective medical evidence does not support the proposition that the Veteran's service-connected disabilities present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards so as to warrant the assignment of an extraschedular rating under 38 C.F.R. § 4.16(b) (2012). Accordingly, an extraschedular evaluation is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim for the benefits must be denied. 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990). ORDER Entitlement to TDIU is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs