Citation Nr: 1316948 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 07-20 852 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial disability rating higher than 20 percent for diabetes mellitus. 2. Entitlement to an initial disability rating higher than 10 percent for chondromalacia patella of the left knee. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran served on active duty from January 1979 to January 1991. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions by Regional Offices (RO) of the United States Department of Veterans Affairs (VA). In a March 2006 rating decision, an RO granted service connection for diabetes mellitus and assigned a 20 percent disability rating effective July 12, 2002. In a March 2007 rating decision, an RO denied entitlement to a TDIU. In a May 2007 rating decision, an RO granted service connection for chondromalacia patella of the left knee, and assigned a 10 percent rating effective June 1, 2006. The Veteran testified in November 2010 before the undersigned Veterans Law Judge at a Travel Board hearing at the RO; a transcript of this hearing is of record. This claim was previously before the Board in February 2011, at which time the Board remanded it for additional development. The requested development has been completed, and the claim is properly before the Board for appellate consideration. FINDINGS OF FACT 1. The Veteran's diabetes mellitus does not require regulation of activities for control. 2. The Veteran's chondromalacia patella of the left knee is not characterized by flexion limited to 45 degrees or extension limited to 10 degrees. 3. The evidence of record does not demonstrate that the Veteran's service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2012). 2. The criteria for an initial disability rating in excess of 10 percent for chondromalacia patella of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261, 5024 (2012). 3. The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in November 2002, July 2006, and June 2010 letters, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The July 2006 and June 2010 letters and an April 2006 letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The case was last readjudicated in May 2012. However, the appeal arises from the initial award of service connection. In Dingess, the Court held that in cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490-91; see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (section 5103(a) notice is no longer required after service-connection is awarded); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Thus, VA's duty to notify in this case has been satisfied. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA treatment records and examination reports, private treatment records, records from the Social Security Administration (SSA) and hearing testimony. The Board also notes that actions requested in the prior remand have been undertaken. Updated VA treatment records have been obtained and the Veteran had VA examinations in April 2011. Following the May 2012 supplemental statement of the case, the Veteran's responded that there was no additional evidence to submit and requested that the case be returned to the Board immediately. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The Veteran has been afforded a hearing before a VLJ in which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the CAVC held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the VLJ who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, the VLJ asked specific questions directed at identifying whether the Veteran had symptoms meeting the criteria for a higher rating. The VLJ also sought to identify any pertinent evidence not currently associated with the claims file. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim. As such, the Board finds that no further action pursuant to Bryant is necessary and the Veteran is not prejudiced by a decision being rendered at this time. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all of the evidence in the Veteran's claims file and electronic Virtual VA file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history; reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2012); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2012); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2012); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2012). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Increased Initial Rating for Diabetes Mellitus Diabetes is rated pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7913. Under this code, diabetes mellitus requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet, is rated 20 percent disabling. Diabetes mellitus requiring insulin, restricted diet, and regulation of activities is rated 40 percent disabling. Diabetes mellitus requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately rated, is rated 60 percent disabling. Diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately rated, is rated 100 percent disabling. Note (1) to Diagnostic Code 7913 provides that compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating (under Diagnostic Code 7913). Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. Note (2) provides that, when diabetes mellitus has been conclusively diagnosed, the adjudicator is not to request a glucose tolerance test solely for rating purposes. 38 C.F.R. § 4.119 (2012). As noted above, the RO assigned a 10 percent rating for diabetes mellitus effective July 12, 2002. The Board notes that the Veteran is separately rated for bilateral diabetic retinopathy with cataracts, peripheral neuropathy of both lower extremities, and coronary artery disease. Thus, symptomatology related to these conditions cannot be considered when evaluating the Veteran's diabetes as such would constitute impermissible pyramiding. 38 C.F.R. § 4.14 (the evaluation of the same manifestation or disability under different diagnoses is to be avoided). Private treatment records dating since 1994 were submitted. Records from 2003 note the Veteran's diabetes was not well controlled. It was noted he was working 40 hours a week as a nurse. He denied hypoglycemic episodes. His medication was adjusted and he was encouraged to exercise and follow his diet. The Veteran had a VA examination in May 2005 for diabetes mellitus at which he reported using Metformin and insulin for glucose control. He denied episodes of ketoacidosis and reported a few occasions of hypoglycemia that resolved with eating. He was on a diabetic diet and denied any restriction in activities due to diabetes. Private primary care treatment records from November 2005 to April 2006 that included treatment for diabetes did not indicate any regulation of activities due to diabetes. It was noted in November 2005 that his new medication regimen was improving diabetes control. In March 2009 the Veteran had a VA examination for diabetes mellitus. He was using oral medication and insulin more than once daily. There were no side effects from treatment. The Veteran noted he had difficulty controlling his diabetes because he liked to eat bread to fill him up. The examiner noted the Veteran was not restricted in the ability to perform strenuous activities. At August 2010 VA diabetes treatment it was noted that the Veteran has worsened a slight bit. The treating physician felt that the Veteran was unable to exercise due to a heart condition, chronic obstructive pulmonary disease, and joint problems, including the left knee. At the November 2010 hearing the Veteran testified that he had been hospitalized earlier in the year due to diabetes and that his insulin was changed. The Veteran said that he did not have ketoacidosis or other complications of diabetes. VA treatment records reveal the Veteran was hospitalized from December 7-8, 2009 to change insulin due to poor control of diabetes. This hospitalization was a planned admission and was not the result of ketoacidosis or hypoglycemic reaction requiring emergent treatment. The records also noted the Veteran reported hypoglycemia when he skipped meals, but no hypoglycaemic reactions or ketoacidosis that required hospitalization. The records also note the Veteran was counselled on the importance of maintaining an active life style. It was noted he had purchased a stationary bike. The Veteran had a VA examination for diabetes in April 2011. The examiner felt that the diabetes alone, with proper management and lifestyle choices, would not require activity regulation. The record did not show hypoglycemic blood sugar levels since the last VA examination except for when the Veteran forgot to eat. The Board finds that the Veteran is not entitled to a rating greater than 20 percent for diabetes mellitus because the record does not show regulation of activities is required to control his diabetes. The April 2011 VA examiner felt that with proper management and lifestyle choices, the Veteran's diabetes would not require regulation of activity. Furthermore, VA treatment records consistently show that the Veteran was encouraged to maintain his diet and to exercise. When the August 2010 treating provider noted limits to the Veteran's ability to exercise, it was due to a heart condition, chronic obstructive pulmonary disease, and joint problems. Thus, in the absence of evidence showing his diabetes requires regulation of activities, the criteria for a 40 percent rating for that disability have not been met. 38 C.F.R. § 4.119. The 20 percent rating presently assigned most closely approximates the severity of the Veteran's diabetes mellitus as evidenced by the clinical records and VA examination reports. Finally, in light of the holding in Fenderson, supra, the Board has considered whether the Veteran is entitled to "staged" ratings for his service-connected diabetes mellitus as the Court indicated can be done in this type of case. Based upon the record, the Board finds that at no time during the claims period has the disability on appeal been more disabling than as currently rated under the present decision of the Board. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. However, since the preponderance of the evidence is against the claim for a higher rating for the Veteran's diabetes mellitus, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Increased Rating for Chondromalacia Patella of the Left Knee The Veteran is seeking an initial evaluation greater than 10 percent for chondromalacia patella of the left knee. Service connection for this disability was granted effective June 1, 2006. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2012); see also 38 C.F.R. §§ 4.45, 4.59 (2012). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. The Veteran's chondromalacia patella of the left knee has been rated under Diagnostic Code 5099-5024, 38 C.F.R. § 4.71a (2012), and is thus rated on the basis of residuals under Diagnostic Code 5024 for tenosynovitis. See 38 C.F.R. § 4.27 (2012). Diagnostic Code 5024 provides that the disability will be rated on limitation of motion of affected parts, as degenerative arthritis. 38 C.F.R. § 4.71a (2012). Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II (2012). Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. 38 C.F.R. § 4.71a. Precedent opinions of the VA's General Counsel have held that dual ratings may be given for a knee disorder, with one rating for instability (Diagnostic Code 5257) and one rating for arthritis with limitation of motion (Diagnostic Codes 5003 and 5010). VAOPGCPREC 9-98 (63 Fed. Reg. 56,704 (1998)) and 23-97 (62 Fed. Reg. 63,604 (1997)). Another such opinion held that separate ratings under Diagnostic Code 5260 (leg, limitation of flexion) and Diagnostic Code 5261 (leg, limitation of extension) may be assigned for disability of the same joint. VAOPGCPREC 9-2004 (69 FR 59988 (2004)). A June 2005 MRI of the left knee from private treatment showed no evidence of meniscal or ligamentous damage but did show patellar chondromalacia. The Veteran had a VA examination in May 2007 at which he reported the knee getting progressively worse. A cane was needed for walking. The Veteran could stand for up to an hour and could walk for up to a quarter of a mile. On examination there was no deformity, giving way, instability, episodes of dislocation or subluxation, locking episodes, effusion, flare ups, or inflammation. There was pain, stiffness, weakness, and tenderness. Range of motion was flexion to 90 degrees and extension to 0 degrees. X-rays showed no acute fractures or dislocations, patella baja, or enchondroma versus bony infarct of the proximal tibial diaphysis. The diagnosis was chondromalacia patella. November 2007 VA orthopedic surgery treatment notes indicate that the left knee had patella facet tenderness on the lateral aspect. McMurray's and reverse McMurray's tests were painful. The diagnosis of the left knee was chondromalacia and a question of internal derangement of the left knee. The Veteran wrote in a March 2008 statement that he had continuous pain in his left knee and that he wore a brace. There was often increased swelling and pain, and his knee often buckled, causing him to lose his balance. He therefore had to use a cane. March 2008 VA orthopedic surgery treatment records indicate that conservative treatment had not been helpful for the Veteran's chondromalacia and he wanted to discuss surgery. VA treatment records show that treatment had included physical therapy. September 2009 VA primary care treatment notes indicate that the Veteran needed a new knee brace. The Veteran testified at the November 2010 VA hearing that he was wearing a knee brace because his knee popped out. He had to walk sideways because if he walked straight it popped out. The Veteran could hold his leg straight out and bend it all the way back but there was severe pain. He had to go up stairs one step at a time because of his left knee. The Veteran took Tylenol and codeine for the severe pain in his back and knee. The Veteran had a VA examination for his left knee in April 2011 at which he reported having constant left knee pain that was at its worst with any weight bearing activity. He reported giving way, instability, pain, stiffness, weakness, incoordination, and decreased speed of joint motion. It did not have deformity, locking episodes, effusions, or symptoms of inflammation. There were no constitutional or incapacitating episodes of arthritis. The Veteran could stand for 5 to 15 minutes but could not walk more than 8 to 25 feet. He always used a cane and/or brace for ambulation. On physical examination there was mild crepitus on flexion and extension motion with generalized knee tenderness. There was no instability, patellar abnormality, meniscus abnormality, or abnormal tendons or bursae. Range of motion was flexion to 120 degrees and extension to 0 degrees. There was objective evidence of pain with active motion and with repetitive motion. The examiner noted that there was no objective evidence of instability or subluxation of the left knee. The impact of the left knee on occupational activities was that the Veteran had decreased mobility and pain. The examiner also felt that there was mild to moderate effect on the Veteran's usual daily activities. The preponderance of the evidence is against the claim of entitlement to an initial rating greater than 10 percent for chondromalacia patella of the left knee. At no time during the course of the claim has compensable limitation of motion been shown. At the May 2007 VA examination flexion was to 90 degrees and extension to 0 degrees, and at the April 2011 VA examination flexion was to 120 degrees and extension to 0 degrees. In this regard, the Veteran's flexion and extension during the course of the appeal were not limited to the degrees required for even a compensable rating for either flexion or extension. Indeed, his extension has been normal at 0 degrees, and his flexion has not been limited to 45 degrees or less at any time during the course of the claim, even considering his subjective complaints. Thus, the evidence does not reflect functional impairment warranting a higher rating or separate rating for limitation of flexion and extension. See VAOPGCPREC 09-04. The Veteran's complaints of pain and functional impairment are adequately contemplated in the 10 percent ratings assigned for the knee. See DeLuca, supra; 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. The Board has also considered other potentially applicable diagnostic codes. However, the Board finds the Veteran is not entitled to a higher or separate 10 percent evaluation for recurrent subluxation or lateral instability under Diagnostic Code 5257. 38 C.F.R. § 4.71a. While there have been subjective complaints of instability, the May 2007 VA examination noted that there was no giving way, instability, episodes of dislocation or subluxation, locking episodes, or effusion. Similarly, the April 2011 VA examination found no objective evidence of instability or subluxation of the left knee. Moreover, as there is no evidence of ankylosis, dislocated semilunar cartilage or malunion of the tibia or fibula in either knee, Diagnostic Codes 5257 (ankylosis), 5258 (dislocated semilunar cartilage) and 5262 (impairment of the tibia and fibula) are not inapplicable. See 38 C.F.R. § 4.71a. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. However, since the preponderance of the evidence is against the claim for a higher rating for the Veteran's chondromalacia patella of the left knee, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Extraschedular Evaluations The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). 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. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology related to his diabetes mellitus and chondromalacia patella of the left knee and provide higher evaluations for additional or more severe symptoms. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. Entitlement to a TDIU Under the applicable criteria, total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012). For the above purpose of one 60 percent disability, or one 40 percent disability in 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, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, in the case of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet these schedular percentage standards, the case should be submitted to the Director, Compensation and Pension Service, for extra-schedular consideration. The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. See 38 C.F.R. § 4.16(b) (2012). In this case, the Veteran does not meet the minimum percentage requirements, set forth in 38 C.F.R. § 4.16(a), for award of a schedular TDIU prior to March 11, 2008, but does meet these requirements from that date. The Veteran is presently service connected for coronary artery disease, (rated as 30 percent disabling); diabetes mellitus (rated as 20 percent disabling); hypertension (rated as 10 percent disabling); chondromalacia patella of the left knee (rated as 10 percent disabling); status post cholecystectomy (rated as 10 percent disabling); bilateral retinopathy with cataracts associated with diabetes mellitus, type II (rated as 10 percent disabling); peripheral neuropathy, left lower extremity, associated with diabetes mellitus, type II (rated as 10 percent disabling); peripheral neuropathy, right lower extremity, associated with diabetes mellitus, type II (rated as 10 percent disabling); and gastroesophageal reflux disease (GERD) (rated noncompensably). The combined rating for all of these service-connected disabilities is 70 percent. The Board notes that the Veteran's diabetes, retinopathy, and peripheral neuropathy are all from a common etiology and combined to a 40 percent rating for purposes of the "single disability rated at 40 percent" requirement. While the Veteran did not meet the criteria for a TDIU prior to March 11, 2008, a total rating, may nonetheless be granted in exceptional cases (and pursuant to specifically prescribed procedures) when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, pursuant to 38 C.F.R. § 4.16(b). Hence, consideration of whether the Veteran is, in fact, unemployable, is still necessary in this case. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In addition to the factual background discussed above relating to the Veteran's service connected diabetes mellitus and his chondromalacia patella of the left knee, the Veteran had a VA general medicine examination in March 2006. The examiner noted that in regards to employability, coronary artery disease would preclude the Veteran from physical labor but not from sedentary employment. Hypertension and diabetes mellitus did not preclude the Veteran from either physical or sedentary employment. The Veteran had a psychiatric examination for a Social Security claim in June 2006 at which he reported attempting to go back to work from September 2005 to October 2005 but being unable to continue. A July 2006 VA examiner felt that the Veteran's GERD and cholecystectomy did not have significant effects on his usual occupation. However, the same examiner noted that the coronary artery disease did not have an occupational effect because the Veteran was not employed, but it did prevent the Veteran from playing sports, and had a severe effect on exercise, a moderate effect on chores, and a mild effect on shopping and traveling. The Veteran reported having to stop and rest after walking up a flight of stairs. At the May 2007 VA examination for the left knee it was noted that the Veteran was a nurse who had retired in March 2005. The examiner felt that there were significant effects on the Veteran's occupation due to his left knee because of decreased mobility. At a March 2009 VA eye examination the Veteran reported some fluctuation in his vision associated with his blood sugar. The symptom was blurred vision. The uncorrected and corrected vision was 20/60 distance vision and 20/50 near vision in the right eye and 20/20 uncorrected and corrected distance vision and 20/30 uncorrected and corrected near vision in the left eye. The Veteran was diagnosed with bilateral advanced nonproliferative diabetic retinopathy, bilateral mild nuclear sclerosis and cataracts, and unrelated left eye pterygium. The examiner did not feel that there was any effect on the Veteran's usual daily activities, and no opinion was given on the effect on occupation because the Veteran was not working. At the March 2009 VA examination for diabetes it was noted that the Veteran had loss of feeling and paresthesia of both feet. On neurological examination there was no motor loss, cranial nerves were normal, deep tendon reflexes were normal, and Babinski sign was negative. The Veteran stated at the examination that he was not working because he had been fired due to his low back. On a separate peripheral nerve examination, the examiner noted that there was neuralgia and that there were no significant occupational effects. There were mild effects on chores, exercise, and sports. At a May 2009 VA examination for GERD the Veteran stated that Protonix worked fairly well at controlling GERD but that he was woken up nightly by reflux episodes. The examiner felt that there were no significant effects on the Veteran's usual occupation or on usual daily activities. The Veteran testified at the November 2010 hearing that he last worked full time in December 2005. He had been working privately as a nurse for a quadriplegic man and was fired because he could not move him between a bed and a chair. He lost the job before that after two weeks because a patient was found on the floor and the Veteran could not get her up. At December 2010 VA ophthalmology treatment it was noted that the Veteran's vision had improved since his last visit. The Veteran had a VA eye examination in April 2011 at which he reported that his symptoms had worsened since his last VA examination. The examiner felt that the Veteran's vision did not affect employability because he had a full field of vision in confrontation testing and visual acuity was 20/20 bilaterally. The Veteran had a peripheral nerve and genitourinary examinations in April 2011 with the same examiner who examined him for diabetes. The examiner noted the Veteran's service connected disabilities and felt that combined they should not prevent him from obtaining and maintaining a light duty and sedentary occupation. However, the Veteran should avoid prolonged weight bearing and any lifting or physically strenuous work due to his coronary artery disease and left knee chondromalacia. The Veteran would also benefit from frequent breaks for diabetes management. The hypertension, cholecystectomy, and GERD were stable. Records from the Social Security Administration reveal that he filed his claim for benefits based on a back injury, lower leg pain, diabetes, heart disease and depression. His claim for SSA benefits was denied in 2006, as that agency found that while he was unable to do his past job, his disabilities do not prevent him from doing other work. The Board notes the Veteran's contentions that he is not able to work. However, it is noted that he has not been entirely consistent about whether he is unable to do so due solely due to service-connected disabilities or because of his non-service-connected back disability. However, his statements are outweighed by the opinion of the April 2011 VA examiner. The Board also notes that in order for a TDIU to be granted, the service-connected disabilities must render the Veteran unable to secure or follow any substantial gainful occupation consistent with his history, education and training, regardless of whether he can perform his former work as a nurse. See 38 C.F.R. § 4.16. The opinions from the VA examiners agree that his service connected disabilities would not prevent the Veteran from performing sedentary work. The preponderance of the evidence is against the Veteran's claim of entitlement to a TDIU. The Board acknowledges the Veteran's testimony regarding being unable to lift patients and notes that the April 2011 examiner felt he would have to avoid prolonged weight bearing and any lifting or physically strenuous work due to his coronary artery disease and left knee chondromalacia. However, the examiner felt that the Veteran could maintain a light duty and sedentary occupation. Thus, in reviewing the record there is no evidence that the Veteran is unemployable due solely to service-connected disabilities, and his claim for a TDIU is denied. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. However, since the preponderance of the evidence is against the claim for entitlement to a TDIU, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER An initial rating greater than 20 percent for diabetes mellitus is denied. An initial rating greater than 10 percent for chondromalacia patella of the left knee is denied. Entitlement to a TDIU is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs