Citation Nr: 1328211 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 09-08 897 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to an increased evaluation in excess of 20 percent for right knee meniscal tear with degenerative joint disease (DJD) from March 1, 2009. 2. Entitlement to a total rating for individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The Veteran served on active duty from July 1991 to November 2000. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the Wichita, Kansas, Regional Office (RO) of the Department of Veterans Affairs (VA) which, inter alia, denied the Veteran's claim for an increased evaluation to the maximum rating afforded by the rating schedule for his service-connected right knee meniscal tear with DJD. The present claim for a rating increase was filed in November 2007. During the pendency of this claim, staged ratings pursuant to Hart v. Mansfield, 21 Vet. App. 505 (2007) as well as temporary total ratings for convalescence following right knee surgery, pursuant to 38 C.F.R. § 4.30, were assigned to the service-connected right knee disability. In a February 2011 appellate decision, the Board, inter alia, made a final adjudication of the propriety of the schedular and § 4.30 temporary total ratings (and their respective effective dates) assigned to the Veteran's service-connected right knee meniscal tear with DJD on the basis of joint instability under Diagnostic Code 5257, for the period up to March 1, 2009. The February 2011 Board decision also awarded a separate 10 percent evaluation for a right knee disability based on radiographic evidence of mild osteoarthritis of the affected knee joint with associated painful motion and limitation of motion to a noncompensable degree, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5003-5010, which was subsequently implemented in a February 2011 rating decision. A final appellate decision has therefore been rendered on the Veteran's appeal with regard to the propriety of the ratings assigned for right knee meniscal tear with DJD on the basis of joint instability prior to March 1, 2009, and a compensable evaluation for a right knee disability on the basis of painful motion and limitation of motion due to osteoarthritis. These issues are therefore no longer on appeal before the Board. In addition to the actions discussed above, in February 2011 the Board also remanded the issues of entitlement to a TDIU and an increased evaluation above 20 percent for a right knee meniscal tear with DJD on the basis of joint instability from March 1, 2009, to the RO via the Appeals Management Center (AMC) in Washington, D.C., for additional evidentiary and procedural development. The development ordered included providing the Veteran with a VA medical examination of his right knee. Thereafter, the claim was readjudicated by the RO/AMC in a November 2012 rating decision/supplemental statement of the case, which confirmed and continued the 20 percent for a right knee meniscal tear with DJD from March 1, 2009 (on the basis of joint instability pursuant to Diagnostic Code 5257) and denied the claim for a TDIU. The case was returned to the Board in March 2013 and the Veteran now continues his appeal. FINDINGS OF FACT 1. The Veteran's right knee meniscal tear with DJD is status-post multiple arthroscopic surgeries with well-healed and non-tender, non-painful residual scars; as of the March 1, 2009, it is manifested by subjective instability and pain associated with the torn meniscus, treated by the use of a supportive knee brace and occasional injection of synthetic synovial fluid, which produces a level of disability analogous to no more than moderate impairment of the right knee due to recurrent subluxation and instability. 2. The Veteran is service-connected for a right knee meniscal tear with DJD (presently rated 20 percent), a right knee disability (presently rated 10 percent), tinnitus (presently rated 10 percent), and residuals of a nasal fracture (presently rated noncompensable), which currently produces a combined rating of 40 percent. 3. The Veteran is not precluded from securing and following a substantially gainful occupation, including in a sedentary capacity, by reason of his service-connected disabilities. CONCLUSIONS OF LAW 1. As of March 1, 2009, the criteria for an evaluation greater than 20 percent for right knee meniscal tear with DJD have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2012). 2. The criteria for a TDIU have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.25, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) and VA's duty to assist. With respect to the claims decided herein, the Board notes at the outset that, in accordance with the VCAA, VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Generally, the notice requirements of a claim have five elements: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must also: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. See 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). 38 C.F.R. § 3.159(b) has since been revised and the requirement that VA request that the claimant provide any evidence in his possession that pertains to the claim was removed from the regulation. The current issues that will be adjudicated on the merits stem from an increased rating claim for a right knee disability, which was filed in October 2007. (Prior to VA's receipt of this application, the last rating decision addressing the right knee disability was rendered in May 2001. Notice of this decision was furnished in May 2001, but the Veteran did not timely appeal it, nor did he submit evidence that was new and material to the right knee that demonstrated a worsening of this disabled joint at any time prior to the submission of his October 2007 application to reopen his claim. The May 2001 rating decision is therefore final. See 38 C.F.R. §§ 3.156(b), 3.160(c) (2012); Bond v. Shinseki, 659 F.3d 1362 (2011); King v. Shinseki, 23 Vet. App. 464, 467 (2010).) Pursuant to the holding of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009), a TDIU claim is deemed to be part and parcel to a claim for a rating increase. A VCAA notice letter was dispatched to the Veteran in November 2007, prior to the March 2008 rating decision now on appeal. This letter addressed the increased rating issue on appeal and satisfied the above-described mandates, as well as the requirements that the Veteran be informed of how VA calculates degree of disability and assigns an effective date for the disability, as prescribed in Dingess v. Nicholson, 19 Vet. App. 473 (2006). As fully compliant notice preceded the initial adjudication of the Veteran's increased rating claim adjudicated herein (and, by extension, the TDIU claim), there is no timing of notice defect. VA also has a duty to assist the Veteran in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the Veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). VA informed the Veteran of its duty to assist in obtaining records and supportive evidence with regard to the increased rating and TDIU claims adjudicated herein. As previously stated, the history of this claim shows that, pursuant to 38 C.F.R. § 4.30, the Veteran was awarded a temporary 100 percent evaluation for convalescence following surgery for his service-connected right knee disability that was effective up to February 28, 2009, with an assigned rating of 20 percent for the right knee going into effect as of March 1, 2009 on the basis of joint instability as contemplated in Diagnostic Code 5257. The prior Board decision of February 2011 rendered a final appellate determination of the propriety of the ratings and effective dates assigned for the right knee disability up to March 1, 2009, including the assignment of a separate 10 percent evaluation on the basis of painful but noncompensable limitation of motion due to osteoarthritis. Therefore, this appeal is specific only to the issue of entitlement to a rating increase for the right knee meniscus tear with DJD due to joint instability and a TDIU as of March 1, 2009, and the Board will restrict its focus only to evidence pertinent to this time period. In this regard, the claims file includes VA medical examination reports and treatment records relevant to the Veteran's right knee. The Board has also reviewed the Veteran's claims file as it appears on the VBMS and Virtual VA electronic information databases for any additional pertinent medical records. The evidence is deemed to be sufficiently developed to allow the Board to rate the right knee meniscus tear, including to consider the applicability of a staged rating, for the period from March 1, 2009. See 38 C.F.R. § 3.400(o)(2) (2012); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has reviewed the aforementioned VA examination reports, which were conducted in March 2011 and November 2012, and notes that the Veteran's claims file was reviewed by the VA clinicians who performed them, and that these examiners provided adequate discussion of their clinical observations and rationales to support their individual findings and conclusions within the context of the Veteran's pertinent clinical history as contained within his claims file. A deficit in the March 2011 examination regarding the Veteran's measurable right knee flexion was rectified in the subsequent re-examination in November 2012. The examinations are therefore collectively deemed to be adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Based on the foregoing, the Board finds that the VA fulfilled its VCAA duties to notify and to assist the Veteran in the evidentiary development of the claims decided herein, and thus no additional assistance or notification is required. The Veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board will therefore proceed with the adjudication of this appeal. The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (a.) Entitlement to an increased evaluation in excess of 20 percent for right knee meniscal tear with DJD from March 1, 2009. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2012). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2 (2012); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2012). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2012). When rating a musculoskeletal disability such as the knee disorder at issue, functional loss due to pain must be considered. A thorough evaluation of a musculoskeletal or orthopedic disability for rating purposes requires consideration of any functional loss due to pain, incoordination, weakness, or fatigability. 38 C.F.R. §§ 4.40, 4.45 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. 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 it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40 (2012). Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14 (2012). However, pain itself does not constitute functional loss, and painful motion does not constitute limited motion for the purposes of rating under Diagnostic Codes pertaining to limitation of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain indeed must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss. Id. The provisions 38 C.F.R. §§ 4.40, 4.45, 4.59 should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2012). With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45. For the purpose of rating disability from arthritis, the knee is considered a major joint. 38 C.F.R. § 4.45. A knee disability may be rated under both the Diagnostic Code for arthritis and the Diagnostic Code for joint instability. The VA Office of the General Counsel held that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003-5010 and 5257 of 38 C.F.R. § 4.71a. The Office of the General Counsel noted that Diagnostic Code 5257 specifically addressed only instability of the knee and Diagnostic Code 5003-5010 specifically addressed only arthritis and disability from arthritis due to limitation of range of motion, as contemplated in the criteria contained in Diagnostic Codes 5260 and 5261. The Office of the General Counsel determined that because Diagnostic Codes 5257 and 5003 applied either to different disabilities or to different manifestations of the same disability, the evaluation of knee dysfunction under both Codes would not amount to pyramiding (i.e., evaluating the same disability under various diagnoses) which was to be avoided under 38 C.F.R. § 4.14. See VAOPGCPREC 23-97 (July 1, 1997). However, as the Board has already addressed the issue of assigning the Veteran a separate evaluation on the basis of pain on motion due to osteoarthritis, which also contemplates rating on the basis of limitation of motion, in the appellate decision of February 2011 that preceded this current decision, the only facet of the Veteran's service-connected right knee disability that remains to be considered on appeal is impairment on the basis of joint instability under Diagnostic Code 5257, whose criteria provide the following: 5257 Knee, other impairment of: Recurrent subluxation or lateral instability: Severe 30 Moderate 20 Slight 10 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2012) If the evidence demonstrates right tibia and fibula impairment, the right knee may be rated under Diagnostic Code 5262, which provides for the following evaluations: 5262 Tibia and fibula, impairment of: Nonunion of, with loose motion, requiring brace 40 Malunion of: With marked knee or ankle disability 30 With moderate knee or ankle disability 20 With slight knee or ankle disability 10 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2012) The Board notes that Diagnostic Code 5258 provides for no higher than a 20 percent evaluation on the basis of dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint, and Diagnostic Code 5259 provides for only a 10 percent evaluation on the basis of symptomatic residuals following removal of the semilunar cartilage. As neither of these Diagnostic Codes provide for the assignment of a rating higher than the 20 percent evaluation currently assigned, there is no need to consider rating the present claim using their criteria. VA treatment records and examination reports for the period from March 1, 2009 to the present show that the Veteran has a history of multiple arthroscopic surgeries to repair his torn right meniscus. Scars associated with the surgeries are noted to be well-healed, non-tender and non-painful. The Veteran presented subjective complaints of constant right knee pain and sensations of joint instability. He sometimes wore an orthopedic brace to support his right knee. Treatment of his right knee included prescribed pain medication and occasional injections of Euflexxa - a non-steroidal synthetic synovial fluid - directly into the spaces of his right knee to temporarily add cushioning to the affected joint. An orthopedic surgery note date April 2009 shows that the Veteran now had virtually no intact right lateral meniscus remaining. Constant pain was reported, along with occasional "giving way" of the right knee, which was aided with the use of a prescribed brace. Overall alignment of his right knee was essentially in a neutral position, but with a slight varus. His ligaments were stable and he displayed extension limited to 5 degrees and flexion to 130 degrees. X-rays of the Veteran's right knee in August 2009 revealed no abnormal soft tissue calcification, no evidence of osseous fracture or subluxation, a normal patella, and mild spurring of the tibial spine with mild degenerative changes of the knee with medial compartment narrowing. VA examination in March 2011 shows that the Veteran used a supportive right knee brace and cane. He complained of right knee pain with flare-ups of swelling, buckling and giving out. Pain was aggravated by weather changes, standing for more than one hour, and walking a distance of more than one city block. Examination revealed that the right knee ligaments were stable to varus and valgus stress with no actual swelling or tenderness. The Veteran could fully extend his right knee to zero degrees without pain and flex it to 90 degrees, limited by pain, although the examiner questioned the validity of this latter finding as the Veteran did not appear to be putting in the best effort at flexing his right knee. A limp favoring the right knee was observed. The examiner opined that the Veteran's subjective complaints could not be supported by the objective X-ray and physical findings obtained on examination. The examiner also determined that the occupational impact of the Veteran's right knee disability was that he could not stand or walk for more than 30 minutes, but that this did not prevent him from being able to work in a sedentary job. In this regard, the Veteran was noted at the time to be in his second year of nursing school. His right knee disability had no adverse effect on his daily activities of living and did not cause him to lose any time from school. X-rays of the veteran's right knee in July 2011 revealed no evidence of joint effusion or fracture, with preserved joint spaces and minimal hypertrophic degenerative changes indicative of mild osteoarthritis. VA examination in November 2012 shows that the Veteran was diagnosed with a right meniscal tear and osteoarthritis of his right knee. He presented subjective complaints of constant right knee pain, which fluctuated from day to day in intensity, from a dull ache to more acute pain. Pain and tenderness of the right knee was elicited on palpation of the joint. Right knee flexion was to 135 degrees and extension was to zero degrees, limited by onset of pain, but with no painful motion on examination that day and no additional limitation of motion following repetitive use testing. Functional loss of his right knee was characterized as less movement than normal (i.e., less than full normal range of flexion), excess fatigability, deformity (i.e., near absent right lateral meniscus and slight varus alignment), disturbance in locomotion (i.e., a limp favoring the right lower extremity), and interference with prolonged sitting, standing, and weight bearing. No loss of right knee muscle strength was indicated, with 5/5 strength assessed on flexion and extension. No evidence of right tibial and/or fibular impairment or recurrent right patellar subluxation or dislocation was detected. No right anterior, posterior, or medial-lateral instability was observed on testing. X-rays in November 2012 revealed mild-to-moderate joint space narrowing from osteoarthrosis, more prominent than compared to a prior X-ray film from July 2011, but with no evidence of joint effusion or fracture. Occupational impact was that the Veteran could not sit or stand for prolonged periods of time (i.e., more than two hours) before pain increased. The examiner opined that the right knee disability would make it difficult for the Veteran to obtain or maintain employment in a physical occupation, but that he would be able to perform sedentary tasks. The Board has considered the above evidence and finds that it does not support the assignment of an evaluation higher than 20 percent for right knee meniscal tear with DJD for the period from March 1, 2009 to the present. Although the Veteran presented subjective complaints of perceived right knee joint instability during this period, the examination reports do not objectively demonstrate the presence of any instability of the right knee joint on examination. Nevertheless, the brace he uses is a prescribed appliance and therefore the Board must assume that the physician who prescribed its use did so to address an actual symptom. Although the Board has already determined in its prior decision of February 2011 that the Veteran's limitation of motion of his right knee on flexion and extension due to pain from osteoarthritis was not to a compensable level under Diagnostic Codes 5260 and 5261, we note for the sake of thoroughness that on all examinations conducted between March 1, 2009 to the present, the Veteran experienced pain on use and motion of his right knee that did not objectively limit his extension to more than 5 degrees and flexion to less than 90 degrees during this period, even factoring in additional limitation of extension and flexion due to functional loss and pain after repetitive motion testing. Limitation of extension to 5 degrees and limitation of flexion to 90 degrees still does not produce a compensable limitation of motion under Diagnostic Codes 5260 and 5261 of 38 C.F.R. § 4.71a. The limitation of prolonged use of the right knee on walking, sitting, and standing is deemed by the Board to be adequately compensated by the 10 percent evaluation assigned in its prior decision. The clinical evidence also does not demonstrate impairment of the tibia and fibula due to malunion, such that a rating higher than 20 percent may be assigned under Diagnostic Code 5262 on the basis of marked knee disability. The Board finds that the disability picture presented by the clinical evidence, which shows that the Veteran's right knee meniscal tear with DJD is status-post multiple arthroscopic surgeries with well-healed and non-tender, non-painful residual scars and is manifested by subjective instability and pain associated with the torn meniscus, which is treated by the use of a supportive knee brace and occasional injection of synthetic synovial fluid. This produces a level of disability analogous to no more than moderate impairment of the right knee due to recurrent subluxation and instability and therefore the 20 percent evaluation presently assigned as of March 1, 2009 is appropriate. As the constellation of disabling symptomatology does not present a disability picture that more closely approximates the criteria for a 30 percent evaluation for severe right knee impairment due to recurrent subluxation and instability, the claim for a rating increase for the period at issue must be denied. See 38 C.F.R. § 4.7 (2012). Because the evidence in this case is not approximately balanced with respect to the merits of this claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A rating in excess of the assigned schedular evaluation for the Veteran's service-connected right knee disability may be granted when it is demonstrated that the particular disability presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). To accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2012). The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2012) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. See Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. See Shipwash v. Brown, 8 Vet. App. 218, 277 (1995). Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, the Board or the RO must determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The Board finds that there is no evidence that the Veteran's service-connected right knee disability has presented such an unusual or exceptional disability picture at any time from March 1, 2009 so as to require consideration of an extraschedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b) (2012). In this case, although the evidence of record shows that the Veteran receives regular treatment for his right knee disability, which includes occasional injections of synthetic synovial fluid (that is not a steroidal type of medication), it does not indicate that he is frequently hospitalized for his service-connected right knee disability. Although the clinical evidence indicates that the Veteran is limited in his capacity to engage in any occupation that requires him to perform physical activities that involve prolonged standing, sitting, or walking, there is no clinical evidence that deems him to be precluded from performing sedentary work. He was attending nursing school in 2011 and did not lose any time from his studies because of his right knee disability. The 20 percent evaluation assigned on the basis of instability and the separate 10 percent evaluation assigned on the basis of painful motion under the criteria of the applicable rating schedule as contained in 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5010, 5257, 5258, 5259, 5260, and 5261 adequately contemplate his present level of impairment. The Board cannot concede that the Veteran's right knee disability, standing by itself, causes marked interference with his employment. Furthermore, the clinical evidence fails to show that the disability picture created by the right knee disability is exceptional or unusual. Having reviewed the record with these mandates in mind, the Board finds that the ratings presently assigned adequately reflect the state of the Veteran's right knee disability and that there is no evidentiary basis for referral of the case for extraschedular consideration. (b.) Entitlement to a TDIU. VA will grant a total rating for compensation purposes based on individual unemployability when the evidence shows that a veteran is precluded, by reason of service-connected disability, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1 MR, Part IV, Subpart ii, Chapter 2 (Dec. 13, 2005) (previously cited at M21-1, Part IV, paragraph 7.09), defines the term as that "at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides." In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a Veteran is entitled to TDIU is whether his service-connected disabilities alone are of sufficient severity to produce unemployability. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a) (2012). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability, and consideration is given to the veteran's background including his or her employment and educational history. See 38 C.F.R. § 4.16(b) (2012). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. See Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012); see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a Veteran's favor. 38 C.F.R. § 4.3 (2012). The Board emphasizes entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2012) and a TDIU extraschedular rating under 38 C.F.R. § 4.16(b), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157 (1994). An extraschedular rating under 38 C.F.R. § 3.321(b)(1) is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's disability. Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, 38 C.F.R. § 4.16(b) merely requires a determination that a particular veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96. This means that the Board should take into account the veteran's specific circumstances including his disability, education, and employment history when determining if he is unable to work. As previously stated, the Board itself cannot assign an extraschedular rating in the first instance. However, it must specifically adjudicate whether to refer a case to the Director of Compensation and Pension (C&P) Services for an extra-schedular evaluation when the issue is either raised by the claimant or is reasonably raised by the evidence of record. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). The Veteran is service-connected at this time for a right knee meniscal tear with DJD (presently rated 20 percent), a right knee disability (presently rated 10 percent), tinnitus (presently rated 10 percent), and residuals of a nasal fracture (presently rated noncompensable), which currently produces a combined rating of 40 percent under 38 C.F.R. § 4.25 (2012). The Board notes that at no time during the pendency of this claim were any of the Veteran's service-connected disabilities rated higher than these above evaluations, with the exception of the periods during which a temporary total rating was awarded for convalescence following right knee surgery under 38 C.F.R. § 4.30. Therefore, the Veteran has not met the minimum rating requirements for eligibility for a TDIU under 38 C.F.R. § 4.16(a). The Veteran's clinical records from VA show that for the pertinent time period at issue, his education background includes a high school diploma and, as of 2011, he was attending school to earn a nursing degree. Clinicians' opinions in 2011 and 2012 expressly state that the Veteran is not precluded by his service-connected right knee disability from obtaining and maintaining sedentary employment. A January 2012 VA audiological examination determined that the occupational impact of his service-connected tinnitus was that it caused him trouble understanding spoken conversation in difficult listening situations, but did not otherwise indicate that the tinnitus precluded him from obtaining and maintaining employment in a physical or sedentary occupation. A November 2012 VA medical examination also determined that the Veteran's service-connected residuals of a nasal fracture produced a traumatic deviated septum, but this condition did not seem to limit his function in any way and, by itself, would not prevent him from obtaining or maintaining gainful employment in a physical or sedentary occupation. In view of the foregoing discussion, the Board finds that the preponderance of the evidence of record does not show that the Veteran has met the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a), or that he is unable to obtain and maintain a substantially gainful occupation in a sedentary capacity because of the severity of his service-connected right knee disability, tinnitus, and residuals of a nasal fracture at any time during the pendency of this claim. Therefore, his claim for a TDIU under the regulatory provisions of 38 C.F.R. § 4.16(a) must be denied. Furthermore, in view of this preceding discussion, the Board also finds that there is no basis to refer his TDIU claim to the Director of the Compensation & Pension Service for consideration of an extraschedular grant of a TDIU under § 4.16(b) as the clinical evidence demonstrates that he is objectively deemed to be capable of obtaining and maintaining gainful employment is at least a sedentary capacity; and he appears to be pursuing higher education for a degree in nursing. As the evidence in this case is not approximately balanced with respect to the merits of his TDIU claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An increased rating in excess of 20 percent for right knee meniscal tear with DJD from March 1, 2009 is denied. A TDIU is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs