Citation Nr: 1319996 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 08-02 149 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an increased evaluation for status post medial meniscal repair of the left knee, currently evaluated as 10 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty in the Army from November 1964 to March 1965, from April 1968 to February 1970, and from September 1970 to December 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In January and December of 2012, the Board remanded the claims for additional development. In November 2008, the Veteran had a hearing before a Decision Review Officer (DRO), and the transcript is of record. There is no indication in the record that the RO has developed and adjudicated the Veteran's informal claim of entitlement to service connection for a left hip disability. This claim is again referred to the RO for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Even considering his complaints of pain, stiffness, and swelling, the Veteran's service-connected status post medial meniscal repair of the left knee is not shown to result in flexion limited to 30 degrees, or extension limited to 15 degrees; and, there is no evidence that he has ankylosis, recurrent subluxation or lateral instability, malunion of the tibia and fibula, or dislocation of the semilunar cartilage. 2. The Veteran's service-connected disabilities are: a lumbar spine disability, evaluated as 20 percent disabling, bilateral hearing loss, evaluated as 20 percent disabling, a right knee disability, evaluated as 10 percent disabling, a left knee disability, evaluated as 10 percent disabling, tinnitus, evaluated as 10 percent disabling, and residuals of shell fragment wounds to the body, evaluated as noncompensable (0 percent disabling). His combined rating is 60 percent. 3. Factors warranting a referral for TDIU on an extraschedular basis are not present. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for service-connected status post medial meniscal repair of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5256, 5257, 5258, 5260, 5261, 5262 (2012). 2. The criteria for establishing entitlement to TDIU are not met; referral for TDIU on an extraschedular basis is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.16(a), (b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased Rating The Veteran asserts that an increased rating is warranted for his service-connected status post medial meniscal repair of the left knee. He argues that he has symptoms that include pain and swelling after prolonged standing. He has testified that he uses a cane, and wears a knee brace. See transcript of Veteran's hearing, held in November 2008. With regard to the history of the Veteran's left knee disability, the Veteran's service treatment reports (STRs) show that in November 1972, he was treated for left knee symptoms after he was kicked in the knee while playing basketball. An X-ray noted a possible avulsion of the anterior cruciate ligament. As for the post-service medical evidence, a March 1973 VA examination report notes a torn knee ligament, and shows that the Veteran reported a history of shrapnel wounds to areas that include the bilateral knees during service in Vietnam (not shown in STRs). Reports from the Methodist Hospital, dated in October 1988, show that the Veteran underwent a left knee meniscectomy and plica resection. The postoperative diagnoses were tear of medial meniscus, left knee, and large medial synovial shelf. He injured his left knee while moving furniture in 1997, and underwent an arthroscopy. In June 1989, the RO granted service connection for status post medial meniscal repair, left knee, evaluated as 10 percent disabling as of December 1988 (earlier 20 percent and 100 percent ratings were also assigned). The Veteran did not appeal that decision nor did he submit new and material evidence within one year. The RO's decision thereby became final. See 38 U.S.C.A. § 7105(c). In August 2006, the Veteran filed his claim for an increased rating. The RO denied the claim in March 2007. The Veteran has appealed. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. Part 4 (2012). When a question arises as to which of two evaluations shall be assigned, the higher evaluation will be assigned of the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Under 38 C.F.R. § 4.71a , Diagnostic Code (DC) 5010, traumatic arthritis is rated as for degenerative arthritis under DC 5003. Under 38 C.F.R. § 4.71a, DC 5003, degenerative arthritis will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Under 38 C.F.R. § 4.71a, DC's 5260 and 5261, which address limitation of motion of the knee, a 20 percent rating will be assigned for flexion limited to 30 degrees or extension limited to 15 degrees. The standardized description of joint measurements is provided in Plate II under 38 C.F.R. § 4.71. Normal extension and flexion of the knee is from 0 to 140 degrees. As an initial matter, the in June 1989, the RO granted service connection for a left knee disability, and rated the Veteran's left knee disability under DC 5257. In the March 2007 rating decision currently on appeal, the RO also rated the Veteran's left knee under DC 5257. However, in March 2013, the RO indicated that it had evaluated the Veteran's left knee disability under DCs 5010-5260. See 38 C.F.R. § 4.27 (2012) (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen; the additional code is shown after the hyphen). This hyphenated code indicates that the service-connected disability is traumatic arthritis, and it is rated as if the residual condition is a limitation of knee flexion under DC 5260. For the below reasons, the Board agrees with this designation and finds that the Veteran's left knee disability is more appropriately rated under Diagnostic Code 5260-5003 as per 38 C.F.R. § 4.59. Specifically, Diagnostic Code 5257 contemplates recurrent subluxation or lateral instability. The probative evidence of record fails to demonstrate the presence of such symptoms. In this regard, while the Veteran has complained of occasional giving away/instability of the left knee, he, as a layperson is not competent to diagnose internal instability or subluxation. The Board emphasizes that he is competent to report that his knee feels unstable or gives way. However, there is no indication that he possesses the requisite knowledge to administer or interpret specialized testing that would reveal instability or subluxation. King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Rather, medical professionals have consistently found no instability of the left knee. VA examinations dated in January 2007, February 2012, and April 2013 were each negative for any objective evidence of instability. The private treatment records also silent in this regard. Indeed, even the April 1989 rating decision, which had used to assign the original 10 percent rating under DC 5257, showed the knee to be stable. In other words, the competent medical evidence shows that the Veteran's left knee is stable, without instability or subluxation. Use of Diagnostic Code 5257 is not appropriate. Instead, as will be discussed in further detail below, the Veteran's left knee disability is manifested by painful and limited motion (specifically, flexion). When applying the tenets of 38 C.F.R. § 4.59, such disability is more appropriately evaluated under Diagnostic Code 5260, pertinent to the evaluation of limitation of flexion. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board is cognizant of the Federal Circuit's holding in Read v. Shinseki, 651 F.3d 1296 (Fed. Cir. 2011), which pertains to a claim involving muscle groups, the Federal Circuit held that a change in determination of situs of Veteran's disability from one muscle group to another, for purposes of determining the correct diagnostic code, did not sever service connection of the disability, as such would violate the statute protecting service connection of disabilities. The Federal Circuit noted that the specific situs of disability was identified for the first time, that the disability was not tied to a particular muscle group but to Veteran's inability to perform certain acts, and that the determination that his wound was incurred in connection with military service was not changed. See also 38 U.S.C.A. §§ 101(16), 1159; VAOPGCPREC 50-91 (Mar. 29, 1991) (holding that 38 U.S.C. § 359 (the previous codification of 38 U.S.C. § 1159 ) does "not prohibit the redesignation of an existing service connected rating to accurately reflect the actual anatomical location of the injury or disease resulting in the Veteran's disability, provided the redesignation does not result in the severance of service connection for the disability in question"). Therefore, as the change in the diagnostic codes pertaining to the evaluation of the Veteran's service-connected left knee disability did not sever service connection and, rather, more appropriately captured the nature of his disability, the Board finds that it was proper. The characterization of his left knee disability remains status post medial meniscal repair of the left knee. Pursuant to Diagnostic Codes 5003, and 5010, arthritis (traumatic or otherwise) is to be rated on limitation of motion. Diagnostic Code 5260 pertains to limitation of flexion, and Diagnostic Code 5261 pertains to limitation of extension. As discussed above, a 20 percent disability rating for limitation of motion (flexion) may to be applied pursuant to 38 C.F.R. §§ 4.59 and 4.71a. However, to warrant a schedular evaluation in excess of 10 percent for the Veteran's left knee disability under Diagnostic Codes 5260 and 5261, there would need to be evidence of limitation of flexion and extension limited to 30 and 15 degrees, respectively. The recorded ranges of motion for the left knee do not show that the Veteran has ever been found to have flexion limited to 30 degrees or extension limited to 15 degrees. In this regard, the only recorded ranges of motion are as follows: extension to 0 degrees, and flexion to 100 degrees (January 2007 VA examination report); a "normal" passive range of motion (February 2007 report from M.R.S., M.D., and September 2007 report from Putnam Surgical Specialties) (in each case, specific degrees of motion were not provided); extension to 0 degrees, and flexion to 120 degrees (January 2008 report from Orthoindy - Northwest); extension to 0 degrees, and flexion to 95 degrees (August 2009 QTC examination report); extension to 0 degrees, and flexion to 120 degrees (February 2012 VA Disability Benefits Questionnaire) (DBQ); extension to 0 degrees, and flexion to 110 degrees (April 2013 VA DBQ). Thus, as flexion and extension of the left knee have not been limited to 30 and 15 degrees or less, respectively, a 20 percent evaluation, or higher, is not warranted under Diagnostic Codes 5260 and 5261, respectively. The Board has considered the possibility of a higher rating under another diagnostic code. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Under 38 C.F.R. § 4.71a, DC 5256, a 30 percent rating is warranted for ankylosis of the knee with favorable angle in full extension or slight flexion between 0 degrees and 10 degrees. Under 38 C.F.R. § 4.71a, DC 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. Under 38 C.F.R. § 4.71a, DC 5258, [d]islocated semilunar cartilage, with frequent episodes of "locking," pain, and effusion into the joint, is rated as 20 percent disabling. Under 38 C.F.R. § 4.71a, DC 5262, a malunion of the tibia and fibula of either lower extremity warrants a 20 percent evaluation if there is a marked knee or ankle disability. The words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2012). It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2012). The evidence does not show that the Veteran left knee is productive of ankylosis, recurrent subluxation or lateral instability, a dislocated semilunar cartilage, or a malunion of the tibia and fibula. The Board again notes that the January 2007, February 2012, and April 2013 VA examination reports/DBQs note that there were no findings of dislocation, subluxation, or instability. An August 2009 QTC examination report similarly notes that there was no instability. A January 2008 report from Orthoindy - Northwest also notes that there was no instability. Further, as the Veteran retains an active range of motion of the knee, ankylosis is not shown. There is similarly no evidence that the Veteran experiences dislocated semilunar cartilage or a malunion of the tibia and fibula. The Veteran's opinion carries very limited value in this regard. Both require a diagnosis/determination that includes test data (X-rays), which has been negative. Given the foregoing, the Board finds that the criteria for a rating in excess of 10 percent under DC's 5256, 5257, 5258, and 5262 are not shown to have been met, and the claim must be denied. The Board has considered whether a separate rating is warranted for instability of the knee. See VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). However, as previously discussed, the medical evidence shows that the Veteran has not been found to have instability. In making this determination, the Board finds that since DC 5257 is not predicated on loss of range of motion, 38 C.F.R. §§ 4.40 and 4.45, do not apply. Johnson v. Brown, 9 Vet. App. 7, 9 (1996). In VAOPGCPREC 9-04, 69 Fed. Reg. 59990 (2005), General Counsel determined that separate disability ratings could be assigned under Diagnostic Codes 5260 and 5261 for disability of the same joint. Here, the ranges of motion of the left knee do not meet the criteria for even a 0 percent rating under DCs 5260 and 5261, i.e., flexion limited to 60 degrees or extension limited to 5 degrees. Separate ratings for limitation of knee motion are not warranted. As a final matter, in conjunction with application of DC's 5260 and 5261, an increased evaluation may be assigned on the basis of functional loss due to a veteran's subjective complaints of pain under 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court clarified that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. The Court specifically discounted the notion that the highest disability ratings are warranted under DCs 5261 and 5261 where pain is merely evident as it would lead to potentially "absurd results." Id. at 10-11 (limiting the scope and application of its prior holding in Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991)). A January 2007 VA examination report shows that the Veteran had difficulty ambulating, with intermittent, but frequent, use of a brace and a cane. The report notes the following: the Veteran complained of giving way, instability, stiffness, pain, and weakness. He also complained of severe flare-ups lasting one to two days, during which he could not walk. There was no locking. There were no constitutional symptoms of arthritis, and no incapacitating episodes of arthritis. The Veteran could stand for 15 to 30 minutes, and walk 1/4 of a mile. Gait was antalgic. There was pain at 35 degrees during active flexion. There was an additional loss of motion of 20 degrees following repetitive use. There was no meniscus or patellar abnormality. An associated CT (computerized tomography) report contains an impression noted degenerative changes, greatest in the medial compartment. The effects on daily activities were "none" (grooming, toileting, dressing, bathing, feeding), "moderate" (traveling, chores), "severe" (recreation, shopping), and "prevents" (sports, exercise). A February 2007 statement from Dr. S notes an antalgic gait, significant varus of the left knee with mild effusion and tenderness at the medial joint line, and Grade 2 patello-femoral crepitation. Dr. S stated that the Veteran needs a knee replacement for pain relief, and that he has a significant impairment due to two major weight-bearing joints (i.e., the left knee and right ankle) which have near end-stage arthritis. See also February 2007 treatment report from Dr. S. A VA spine examination report, dated in May 2008, notes that the Veteran had 5/5 strength bilaterally at his quadriceps and hamstrings. An August 2009 QTC examination report notes complaints of symptoms that included pain, weakness, stiffness, swelling, instability, giving way, fatigability, locking, and lack of endurance. The Veteran denied episodes of dislocation, recurrent subluxation or abnormal movement of the bones, and needing bed rest. The report notes the following: there were no flare-ups, and there was no use of ambulatory aids. There was pain, and guarding of movement, but no instability, weakness, or tenderness. On initial range of motion, there was pain, but no fatigue, weakness, lack of endurance, or incoordination. After five repetitions of motion, extension was to 0 degrees, and flexion was to 105 degrees; there was no additional loss of motion, fatigue, weakness, lack of endurance, or incoordination. Gait was normal. The Veteran could walk 1/4 of a mile, or walk for 10 minutes, and could stand for 10 minutes. The relevant diagnoses were status post medial meniscal repair, left knee, with residual scars, and left knee arthritis. An associated X-ray report contains an impression of mild arthritic change, with no acute findings. An August 2009 QTC examination report for the spine notes that left lower extremity motor function was normal. A February 2012 VA general medical examination report notes that the Veteran had 2+ reflexes at the knee, and 5/5 strength on extension. No assistive devices were used as a normal mode of locomotion. A February 2012 VA knee and lower leg DBQ notes a diagnosis of mild medial compartment degenerative joint disease, status post medial meniscus repair, left knee. The report shows the following: the Veteran complained of intermittent catching which had caused falling. He stated that he did not walk long distances due to increased pain and that he stopped other activities if his knee was catching. After three repetitions, extension was to 0 degrees, and flexion was to 125 degrees. There was no additional limitation in the range of motion after repetitive use. The Veteran had functional loss in the form of less movement than normal, with pain on movement, disturbance in locomotion, and interference with sitting, standing, and weight-bearing. Strength on flexion and extension was 5/5. The Veteran had a meniscus (semilunar cartilage) condition, with frequent episodes or joint locking and pain. No assistive devices were used as a normal mode of locomotion. The Veteran's pain limits walking for long periods, standing, and/or squatting for long periods. A September 2012 VA MRI (magnetic resonance imaging) report contains an impression noting severe tricompartmental osteoarthritis, and diffuse attenuation tear of the lateral meniscus with horizontal medial meniscal body tear, and moderate knee joint effusion, and likely tear of the medial collateral ligament at its origin. An April 2013 VA knee and lower leg DBQ notes the following: the diagnosis was osteoarthritis, left knee, status post medial meniscal repair. The Veteran complained of increased pain over the past year, with several falls and buckling. He stated that walking or standing, especially on concrete, increased his pain, as did prolonged sitting. On flexion, there was pain at 70 degrees; there was no pain on extension. Upon repetitive testing, flexion was to 110 degrees; there was no additional limitation in the range of motion. With regard to functional loss, there was weakened movement, pain, disturbance in locomotion, and interference with sitting, standing, and weight-bearing. Strength was 4/5 on flexion and extension. The Veteran had a history of a meniscal (semilunar cartilage) condition, with a meniscal tear, locking, pain, and effusion. He used a brace and cane to ambulate, with rare use of a walker, and he had received steroid injections. Gait was antalgic. There was moderate to severe left knee DJD noted upon X-ray. Replacement surgery had been discussed, and was pending. The Veteran reported a history of employment as a truck driver for a furniture moving company, and as a correctional officer. He stated that he could not do repetitive bending, lifting, or prolonged standing or sitting due to knee pain and intermittent buckling. In summary, the Veteran's left knee is shown to be painful on motion, and to have osteoarthritis that was characterized as "mild" in July 2009, and as "severe" in September 2012. As of September 2012, he is also shown to have a tear of the lateral meniscus and a likely tear of the medial collateral ligament. He is shown to use a brace and a cane to ambulate. He has been recommended for knee replacement. However, despite these findings, the evidence shows that his left lower extremity strength was noted to be 5/5 at all times, with the exception of an April 2013 finding of 4/5 strength. There is no evidence of atrophy. There is no finding of additional loss of motion upon repetitive use. There is no evidence of instability. The Veteran has been shown to have a range of motion in his left knee which is greater than even that required for even a 0 percent rating under DCs 5260 and 5261. Thus, even considering the findings as to the onset of pain, the criteria for a rating in excess of 10 percent are not shown to have been met under DCs 5260 and 5261. See Powell v. West, 13 Vet. App. 31, 34 (1999) (pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in). Indeed, as noted above, the Court clarified that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. See Mitchell v. Shinseki. It was stated that 38 C.F.R. § 4.40 provides that joint pain alone, and even pain throughout the entire range of motion, but without evidence of decreased functional ability, does not warrant the minimum compensable rating. Here, taking into account the complaints of pain, the medical evidence is insufficient to show that the Veteran has such symptoms as atrophy, loss of strength, or neurological impairment or incoordination, such that when the ranges of motion in the left knee are considered together with the evidence of functional loss due to knee pathology, the evidence does not support a conclusion that the loss of motion in the left knee more nearly approximates the criteria for a rating in excess of 10 percent, even with consideration of 38 C.F.R. §§ 4.40 and 4.45. The Veteran is already being adequately compensated for pain. Additionally, to assign two, separate compensable ratings based on painful motion under two separate diagnostic codes (i.e., under Diagnostic Codes 5260 and 5261) would be in violation of the rule of pyramiding. See 38 C.F.R. § 4.14; VAOPGCPREC 9-04, 69 Fed. Reg. 59990 (2005). Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. The Board parenthetically notes that the April 2013 VA DBQ states that there were no painful and/or unstable scars, or scars with an area greater than 39 square centimeters (6 square inches). See also February 2012 VA scar DBQ (noting an 8-centimeter scar on the left lower extremity). There is no evidence to show left knee scars that are deep, unstable, cover an area of 6 square inches or more, are painful on palpation, or limits any functioning. The criteria for a compensable rating for a left knee surgical scar have not been met. 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805 (as in effect prior to October 23, 2008). In deciding the Veteran's increased rating claim, the Board has considered the determination in Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased rating for separate periods based on the facts found during the appeal period. As noted above, the Board does not find evidence that the Veteran's rating should be increased for any other separate period based on the facts found during the whole appeal period. The evidence of record supports the conclusion that the Veteran is not entitled to increased compensation during any time within the appeal period. The Board therefore finds that the evidence is insufficient to show that the Veteran had a worsening of the disability on appeal such that an increased rating is warranted. Consideration has also been given to whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2012); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record). In determining whether an extra-schedular evaluation is for consideration, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must next consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-16. When those two elements are met, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1) (2012); Thun, 22 Vet. App. at 116. The schedular evaluation in this case is not inadequate. When comparing the Veteran's disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that manifestations of the service-connected left knee disability are congruent with the disability picture represented by the disability rating assigned herein. The criteria for the 10 percent rating assigned herein more than reasonably describes the Veteran's disability level and symptomatology. The Veteran is shown to have pain, and a decreased range of motion in his left knee, with one recent finding of some decreased strength. As the Board finds that the Veteran's disability picture is contemplated by the rating schedule, the inquiry ends and the Board need not consider whether the disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Accordingly, referral for consideration of an extra-schedular rating is not warranted. The Board has considered the Veteran's statements that he should be entitled to a higher disability rating for his left knee. He has reported decreased function due to such symptoms as pain, weakness, and swelling. The Board is required to assess the credibility and probative weight of all relevant evidence. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007). In doing so, the Board may consider factors such as facial plausibility, bias, self interest, and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. at 511; see also Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); cf. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board may consider the absence of contemporaneous medical evidence when determining the credibility of lay statements, but may not determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d at 1331. Personal interest may affect the credibility of the evidence, but the Board may not disregard testimony simply because a claimant stands to gain monetary benefits. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Veteran is competent to report his current left knee symptoms as these observations come to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board also acknowledges the Veteran's belief that his symptoms are of such severity as to warrant a higher rating. However, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. Therefore, the Board finds that the medical findings, which directly address the criteria under which the disability is evaluated, are more probative than the Veteran's assessment of the severity of his disability. The examinations also took into account the Veteran's subjective statements with regard to the severity of his knee disability. II. TDIU The Veteran asserts that he is entitled to TDIU. During his hearing, held in November 2008, he testified that he had bilateral knee swelling after prolonged standing. Overall, he reported having significant low back and bilateral knee pain. He stated that a physician had told him that his knees were 20 years older than his chronological age. The Board notes that, as stated in its December 2012 remand, the Veteran does not assert that his service-connected bilateral hearing loss, or tinnitus, render him unemployable. See also VA knee/lower leg examination report (DBQ), dated in February 2012 (noting that there were no other conditions that impact his ability to work that were not addressed in other questionnaires). The Veteran's claim (VA Form 21-8940), received in August 2006, shows that he stated that he had been employed by a state correctional facility, 40 hours per week, from February 2003 to March 2006. A second claim (VA Form 21-8940), received later that same month, shows that he also reported having worked for a trucking company for 40 or more hours per week, from 1987 to February 2003. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). An extraschedular total rating based on individual unemployability may be assigned in the case of a veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. § 4.16(b). The Veteran's service-connected disabilities are: a lumbar spine disability, evaluated as 20 percent disabling, bilateral hearing loss, evaluated as 20 percent disabling, a right knee disability, evaluated as 10 percent disabling, a left knee disability, evaluated as 10 percent disabling, and tinnitus, evaluated as 10 percent disabling, and residuals of shell fragment wounds to the body, evaluated as noncompensable (0 percent disabling). His combined rating is 60 percent. Given the foregoing, at no time has the Veteran met the minimum schedular requirements for TDIU, see 38 C.F.R. § 4.16(a) (2012), and the only basis for the assignment of a TDIU is on an extraschedular basis. Ordinarily, the VA Schedule for Rating Disabilities will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extraschedular total rating based on individual unemployability may be assigned in the case of a veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. §§ 3.321, 4.16(b). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2317 (1992). Factors such as employment history, as well as educational and vocational attainments, are for consideration. Assignment of a TDIU evaluation requires that the record reflect some factor that "takes the claimant's case outside the norm" of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Id. Additionally, the Court has recognized that, "the effect of a service-connected disability appears to be measured differently for purposes of extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) ... [than] for purposes of a TDIU claim under 38 C.F.R. § 4.16." Kellar v. Brown, 6 Vet. App. 157, 162 (1994). While the former regulatory provision requires marked interference with employment, the latter requires evidence of unemployability. Id. The previously discussed medical evidence in Part I is included herein. A decision of the Social Security Administration (SSA), dated in March 2006, shows that the SSA determined that the Veteran was disabled as of November 2003, with a primary diagnosis of fracture of the lower limb, and a secondary diagnosis of osteoarthritis. The SSA's supporting medical records show that in 1999, he underwent surgery for lateral epicondylitis of the right elbow. In November 2003, the Veteran sustained a right tibial pilon fracture after he fell from a tree while hunting. His fracture is also described as a comminuted fracture of the distal right tibia and fibula. In December 2003, he underwent an open reduction and internal fixation, with development of osteomyelitis requiring hospitalization and additional surgery in 2004. A VA general medical examination report (DBQ), dated in February 2012, shows that the examiner concluded that the Veteran's spine disability impacted his ability to work, specifically, that it resulted in a decreased ability to lift and carry due to pain, and an inability to walk for prolonged distances. A VA knee/lower leg examination report (DBQ), dated in February 2012, shows that the examiner concluded that the Veteran's knee disabilities impacted his ability to work, specifically, that they resulted in pain in the knees that limited walking for long periods, standing and/or squatting for long periods. A VA knee/lower leg examination report (DBQ), dated in February 2012, shows that the examiner concluded that the Veteran's scars did not impact his ability to work. A VA general medical examination report (DBQ), dated in April 2013, shows that the examiner concluded that the Veteran's PE (physical examination) was normal, except as noted on associated questionnaires, and that there were no other conditions that impact his ability to work that were not addressed in other questionnaires. A VA knee/lower leg examination report (DBQ), dated in April 2013, shows that the examiner concluded the following: the Veteran could not work a physical job that required prolonged walking, climbing, bending or lifting due to left joint instability, pain and gait abnormality. He is at risk for falls and worsening of pain with these activities. He could work a sedentary job if allowed stretch breaks as needed and that did not require prolonged walking to and from his job. The Veteran states that his knee scars are not painful and would not limit his ability to work. The Veteran's right knee condition would not limit physical labor and he could work a sedentary job if allowed stretch breaks PRN (as occasion requires). A VA spine examination report (DBQ), dated in April 2013, shows that the examiner concluded that the Veteran could work a sedentary job if allowed stretch breaks PRN. He could not work a physical job that required prolonged walking, climbing, standing, lifting, or bending due to worsening of back pain. The Board finds that the evidence of record is insufficient to show that the Veteran is unable to secure or follow a substantially gainful occupation because of his service-connected disabilities. In this regard, he has a severe disorder for which service connection is not currently in effect, i.e., a comminuted fracture of the distal right tibia and fibula, status post open reduction and internal fixation. The SSA determined that he is unemployable due to this disability. In addition, none of the VA examination reports indicate that the Veteran cannot work due to his service-connected disabilities. In this regard, the April 2013 VA spine, and knee/lower leg opinions both state that the Veteran is able to do sedentary work. Given the foregoing, the Board finds that the Veteran does not meet the requirements for a TDIU on an extra-schedular basis. In reaching this decision, the Board considered the benefit-of-the-doubt rule; however, as the preponderance of the evidence is against the appellant's claim, such rule is not for application in this case. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. The Veterans Claims Assistance Act of 2000 The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). The notification obligations in this case were accomplished by way of letters from the RO to the Veteran dated in August 2006, and January 2007. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The RO has provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post-service records relevant to the issues on appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's VA and non-VA medical records, and SSA records. The Veteran has been afforded several examinations. Concerning these examinations, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the QTC and VA examination reports show that the examiners reviewed the Veteran's medical history, recorded his current complaints, conducted an appropriate examination, provided the appropriate findings, and rendered diagnoses that are consistent with the remainder of the evidence of record. In January and December of 2012, the Board remanded these claims. The January 2012 remand directed that an additional attempt be made to obtain records of inservice hospitalization. However, in May 2012, the RO issued a memorandum in which it detailed the attempts that had been made to obtain the Veteran's records of hospitalization during service. The RO concluded that any additional attempts would be futile. See 38 C.F.R. § 3.159(d). In December 2012, the Board directed that the Veteran be afforded an examination of his knee. In April 2013, this was done. As directed by the Board, the April 2013 VA examination report includes findings, as to pain, instability, and limitation of motion, including after initial and repetitive motion. Under the circumstances, the Board finds that there has been substantial compliance with its remands. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). In November 2008, the Veteran was provided an opportunity to set forth his contentions during a hearing before a DRO. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims recently held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the November 2008 DRO hearing, the DRO identified the issues on appeal. Also, information was solicited regarding the severity of his disabilities. The testimony did not reflect that there were any outstanding medical records available that would support his claims. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim" were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, the hearing discussion did not reveal any evidence that might be available that had not been submitted. As such, the Board finds that, consistent with Bryant, the DRO complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record. The Board concludes, therefore, that decisions on the merits at this time do not violate the VCAA, nor prejudice the appellant under Bernard v. Brown, 4 Vet. App. 384 (1993). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER A rating in excess of 10 percent for service-connected status post medial meniscal repair of the left knee is denied. TDIU is denied. ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs