Citation Nr: 1333920 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 09-27 544 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to a rating higher than 20 percent for residuals, arthrotomy right knee, status post anterior cruciate ligament (ACL) avulsion. 2. Entitlement to a rating higher than 10 percent for right knee traumatic arthritis. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from November 1971 to November 1975. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Los Angeles, California, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled to present testimony before a traveling Veterans Law Judge (VLJ) on March 8, 2012. The Veteran, through his representative, withdrew his hearing request in March 2012. Thus, the Board may now proceed to decide these claims on the merits. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a total rating based on individual unemployability, due to service-connected disability (TDIU) claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. In this case, the Veteran has repeatedly noted that he is unable to perform his usual occupation as the result of this disability. As such, he has raised the issue of TDIU. Thus, the Board's consideration of this issue is reflected on the title page. FINDINGS OF FACT 1. Throughout the appeals period, the Veteran's right knee disability has been characterized by pain, limitation of flexion to 90 degrees or better, torn ligaments, and subjective complaints of instability. 2. It is not shown that the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 20 percent for residuals, arthrotomy right knee, status post ACL avulsion, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1 , 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5257 (2013). 2. The criteria for a rating higher than 10 percent for right knee traumatic arthritis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DCs 5010, 5260, 5261 (2013). 3. The criteria for entitlement to TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.16, 4.19, 4.25 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Here, the Veteran was sent a letter in December 2008 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis In a June 1976 rating decision, the Veteran was originally granted service connection for residuals of right knee arthrotomy, and assigned a 10 percent evaluation under Diagnostic Code 5257, effective November 22, 1975. He filed a claim for an increased evaluation in January 1998, which was denied in an August 1998 rating decision. The Veteran filed a Notice of Disagreement with that rating decision and was awarded an increase to 20 percent, effective January 29, 1998, in a November 1998 Statement of the Case. The Veteran did not perfect his appeal by filing a substantive appeal (VA Form 9). In a May 1999 rating decision, the Veteran was awarded a separate 10 percent evaluation for traumatic arthritis of the right knee under Diagnostic Code 5010, effective January 29, 1998. See VAOPGCPREC 23-97; VAOPCGPREC 9-98 (August 14, 1998). The Veteran filed the current claim for an increased evaluation in July 2007. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). A claimant, however, may experience multiple distinct degrees of disability, resulting in different levels of compensation, from the time the increased rating claim is filed to the time a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is therefore undertaken with consideration that different (staged) ratings may be warranted for different time periods during the period of appellate review beginning within one year of his July 2007 claim. Under Diagnostic Code (DC) 5010, traumatic arthritis established by x-ray findings will be rated either based on the limitation of motion of the affected joint based on x-ray findings. Limitation of motion of the knee is evaluated under DC 5260 (for limitation of flexion) and DC 5261 (for limitation of extension). 38 C.F.R. § 4.71a. Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71, Plate II. Under DC 5260, a 10 percent rating will be assigned for limitation of flexion of the knee to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the knee to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the knee to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. DC 5261 dictates that extension limited to 10 degrees is 10 percent disabling, extension limited to 15 degrees is 20 percent disabling, and extension limited to 20 degrees is 30 percent disabling. 38 C.F.R. § 4.71a, DC 5261. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (holding that pain without associated functional impairment did not constitute additional limitation of motion under DeLuca); Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. If the criteria for a compensable rating under both DC 5260 and DC 5261 are met, separate ratings can be assigned. VAOPGCPREC 9-2004 (Sept. 17, 2004). DC 5257 provides criteria for evaluating knee disabilities based on recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. A slight disability warrants a 10 percent evaluation. 38 C.F.R. § 4.71a, DC 5257. A moderate disability warrants a 20 percent evaluation. Id. A severe disability warrants a 30 percent evaluation. Id. Private treatment records from Dr. E.R.K. dated January 2007 and March 2008 note the Veteran's chronic right knee pain and unstable joint. His cruciate and "lax" collaterals were torn. He reportedly underwent his sixth knee surgery in March 2006, and continued to take medication. Private treatment records from Dr. B.N.S. dated September 2006, March 2007, and September 2007 show right knee diffuse aching pain aggravated by squatting and walking. He had right knee swelling with activity, but denied any limitation to his walking ability or tolerance and denied instability. The Veteran had an antalgic gait. Physical examination revealed incisions healed without drainage, mild pain on movement, no effusion, and laxity. The Veteran's right knee range of motion was from 0 degrees extension to 125 degrees flexion. Passive patellar grind test was abnormal. McMurray's test was negative. Valgus and varus stress tests were normal with no laxity. Reflexes and sensations were normal. X-rays revealed degenerative joint disease or the right knee. The September 2006 record notes that the Veteran switched jobs to work for a different company where his duties required less standing and walking. These records show that the Veteran last underwent surgery for his right knee in June 2006, to remove a loose body. In his July 2007 claim, the Veteran reported constant pain and discomfort as well as restriction of activities due to his service connected right knee disability. The Veteran underwent a VA examination in January 2008. At that time, the VA established diagnosis of arthrotomy right knee status post anterior cruciate ligament (ACL) avulsion with traumatic arthritis and residuals has progressed to the current diagnosis of Arthrotomy right knee status post ACL avulsion with traumatic arthritis and residuals and status post tibial plateau fracture with torn ligaments and scars. The Veteran complained of right knee stiffness, giving way, and locking. He did not have weakness, swelling, heat, redness, lack of endurance, fatigability and dislocation. He reported aching pain traveling to the ankle twice a week, lasting for three hours. He reported a pain level of 7 out of 10, which was relieved by rest and the medication (Motrin). During these episodes, he was able to function with medication. Range of motion of the right knee was from 0 degrees extension to 125 degrees flexion, with pain beginning at 125 degrees. There was no pain, fatigue, weakness, lack of endurance, or incoordination with repetitive use. Crepitus was found on examination, but not edema, effusion, weakness, tenderness, redness, heat, guarding movement, or subluxation. Medial/lateral collateral stability, anterior/posterior cruciate stability, and medial/lateral meniscus were all within normal limits. The examiner noted one scar measuring about 19 cm by 0.5 cm and another scar measuring about 1 cm by 1 cm. There is no tenderness, disfigurement, ulceration, adherence, instability, tissue loss, inflammation, edema, keloid formation, hypopigmentation, hyperpigmentation and abnormal texture associated with any of these scars. These scars did not cause limitation of motion. In his Notice of Disagreement received in April 2008, the Veteran stated that he was no longer able to perform his normal employment as a ship captain as his right knee instability prevented jumping, twisting, and maneuvering on uneven surfaces. He also reported that symptoms of weakness, swelling, heat, redness, lack or endurance, fatigability, and dislocation were prevalent. In his July 2009 VA Form 9, the Veteran reported that he was unable to walk for more than a few blocks without his knee "go[ing] out and causing [him] extreme pain and discomfort." He also reported that he suffered from instability, weakness, swelling, lack of endurance, and fatigability. He further stated that he was unable to continue in his chosen career and had been informed that total knee replacement surgery was the next step for dealing with his condition. In December 2009, the Veteran underwent another VA examination in conjunction with this claim. At that time, he reported weakness, stiffness, swelling, heat, redness, giving way, lack of endurance, locking, fatigability, tenderness, and pain. Specifically, the Veteran reported pain with walking and standing, which was treated with physical therapy. He indicated that he did not experience deformity, drainage, effusion, subluxation, or dislocation. He reported weekly flare-ups lasting two days at a pain level of 10 out of 10. During flare-ups, the Veteran reported functional impairment in walking, stair climbing, and prolonged sitting. These flare-ups were precipitated by physical activity and occurred spontaneously. They were relieved by rest and medication (Advil). He reported undergoing knee surgery, but no incapacitating episodes in the prior 12 month period. The Veteran's posture, gait, and walk were normal. There were no signs of abnormal weight bearing or breakdown, callosities, or unusual shoe wear pattern. He does not require any assistive device for ambulation. On examination, there was no tenderness, guarding of movement, signs of edema, instability, abnormal movement, effusion, weakness, redness, heat, deformity, malalignment, or drainage of the right knee. There was no subluxation, locking pain, genu recurvatum, or crepitus. There was no ankylosis. The Veteran's range of motion was from 0 degrees extension to 120 degrees flexion. There was no additional functional limitation due to pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. The medial/lateral collateral ligaments stability test, the anterior/posterior cruciate ligaments stability test and the medial/lateral meniscus stability test were all within normal limits. This examiner also noted the Veteran's scars, finding the same measurements and characteristics as the previous examiner. This condition affected the Veteran's usual occupation and daily activities in that it requires the Veteran to avoid bending, lifting, kneeling, squatting, prolonged standing. In June 2011, the Veteran again underwent a VA examination in conjunction with this appeal. This examiner noted that the Veteran's anterior cruciate ligament was missing. At that time, the Veteran complained of weakness, stiffness, swelling, giving way, lack of endurance, locking, fatigability, pain, and limitation of motion in the right knee. He denied experiencing heat, redness, deformity, tenderness, drainage, effusion, subluxation and dislocation. He reported flare-ups as often as once per day, lasting for 5 hours with a severity of 9 out of 10. The flare-ups were precipitated by physical activity and were alleviated by rest and by medication (Motrin). During flare-ups he experienced functional impairment in his ability to jump, kneel, and run. He reported difficulty walking more than 400 yards and standing for prolonged periods of time. He also reported occasional additional symptoms of severe shooting pain down the outside of the knee, radiating down to the ankle. He was no receiving any treatment for his condition and it had not resulted in any incapacitation during the past 12 months. Physical examination revealed crepitus of the right knee, but no sign of edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation, guarding of movement, no genu recurvatum, locking pain, or ankylosis. The range of motion was from 0 degrees extension to 90 degrees flexion. There was no additional functional limitation due to pain, fatigue, weakness, lack of endurance or incoordination. The medial/lateral collateral ligaments stability test, the anterior/posterior cruciate ligaments stability test and the medial/lateral meniscus stability test were all within normal limits for the right knee. In this way, the right knee stability tests were all within normal limits and there were no signs of subluxation. The Veteran's posture was normal, but he walked with an abnormal gait (limped favoring the right) due to knee pain. In regards to a tandem gait, however, the Veteran's walk was normal. Examination of the feet did not reveal any signs of abnormal weight bearing or breakdown, callosities or any unusual shoe wear pattern. He did not require any assistive device for ambulation. This examiner found that the Veteran's service connected disability resulted in impaired range of motion and pain at 90 degree flexion and limited standing and walking due to pain. There was no affect on the Veteran's daily activities. His usual occupation was affected by this disability in terms of heavy lifting, prolonged standing, and walking. The examiner noted a linear scar measuring 16 cm by 0.5 cm located right knee medial lateral status post multiple surgeries. This scar was superficial with no underlying tissue damage. The scar was not painful on examination. There was no skin breakdown, inflammation, edema, keloid formation, associated limitation of motion, or functional limitation. The scar was not disfiguring. In order to qualify for a higher (30 percent) evaluation for instability, the Veteran's residuals, arthrotomy right knee, status post ACL avulsion must be characterized by severe subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Board notes that the terms "slight," "moderate" and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The Veteran's subjective complaints include giving way, locking, instability, and dislocation. The objective stability tests of record have consistently been within normal limits. While the Veteran has used a knee brace in the past, there is no indication that such a device is required. The Veteran is competent to describe knee symptoms. However, instability and subluxation of the knee joint are identifiable on objective testing. The Board finds the normal objective testing more probative than the Veteran's claims of instability and subluxation; his complaints are insufficient to establish severe subluxation or lateral instability. Thus, the rating criteria for a 30 percent evaluation for arthrotomy right knee, status post ACL avulsion are not satisfied. 38 C.F.R. § 4.71a, DC 5257. The Board will now turn to the question of traumatic arthritis of the right knee under Diagnostic Code 5010. The Veteran is currently in receipt of a 10 percent evaluation for this disability. There is no x-ray evidence of additional joint involvement and the rating criteria for a 20 percent evaluation for traumatic arthritis of the right knee are not satisfied. 38 C.F.R. § 4.71a, DC 5010. The Board has also considered whether a higher evaluation for traumatic arthritis of the right knee is warranted based on limitation of motion. In this regard, the range of motion findings detailed above do not on their face support a compensable (10 percent) evaluation for either flexion or extension of the right knee. Moreover, there is no showing of a compensable loss of right knee flexion or extension; thus separate ratings pursuant to VAOPGCPREC 9-2004 are not warranted. The Board has also considered additional limitation of function per 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). In this regard, the Veteran has complained of significant knee symptomatology, with frequent flare-ups. Nevertheless, despite the Veteran's subjective complaints, the objective evidence of record does not show significant weakness, stiffness, swelling, heat, redness, lack of endurance, and fatigability, or any additional functional limitation due to this pain. Repetitive motion does not result in further limitation of movement. As such, a higher evaluation based on limitation of motion is not available. 38 C.F.R. § 4.71a, DC 5260, 5261. For these reasons, the Board determines that preponderance of the evidence is against the assignment of an evaluation in excess of 10 percent for the Veteran's traumatic arthritis of the right knee. 38 C.F.R. § 4.7. Scars The Board has also considered whether a separate compensable evaluation is warranted for the Veteran's right knee scars. The Veteran's claim was received in July 2007. The criteria for rating scars were revised effective October 23, 2008. See 73 Fed. Reg. 54,708 (Sept. 23, 2008). Under the previous rating criteria, in order to be compensable, a scar not on the head, face or neck, must be deep or cause limitation of motion affecting an area of at least six square inches/39 sq. cm. (old DC 7801); superficial and not causing limitation of motion affecting an area of at least 144 square inches/929 sq. cm. (old DC 7802); superficial and unstable (old DC 7803); superficial and painful on examination (old DC 7804); or must limit the function of the affected part (old DC 7805). 38 C.F.R. § 4.118 (2008). Under the new rating criteria, in order to be compensable, a scar not on the head, face or neck, must be deep and nonlinear affecting an area of at least six square inches/39 sq. cm. (DC 7801); superficial and linear affecting an area of at least 144 square inches/929 sq. cm. (DC 7802); unstable or painful (DC 7804); or must have other disabling effects (DC 7805). 38 C.F.R. § 4.118. As detailed above, the Veteran's right knee scars have been consistently found to affect a relatively small area of no more than 11 sq. cm., far less than the 39 sq. cm. required for a compensable evaluation under either version of DC 7801 or the 929 sq. cm. required for a compensable evaluation under either version of DC 7802. The scar is not unstable; therefore a compensable evaluation is not available under old DC 7803. There was no finding of instability or pain, thus a compensable evaluation under either version of DC 7804 is not warranted. Finally, there is no finding of associated limitation of function or other disabling effects, thus a compensable evaluation under either version of DC 7805 is not available. Thus, the Board finds no basis upon which to award a separate compensable disability evaluation for the Veteran's associated right knee scars. Extraschedular Considerations The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director 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). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is not inadequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected disability, such as additional limitation of motion and ankylosis, but the medical evidence reflects that those manifestations are not present in this case. The knee disability is significant and has required multiple surgeries and the Veteran has indicated that he has had to change jobs to accommodate the disability. He has also described frequent flare-ups that are very painful and limit his functioning. However, he is already in receipt of a combined evaluation of 30 percent, which contemplates a serious industrial handicap. As discussed, the 20 percent evaluation for moderate subluxation or instability is not mirrored in the clinical evaluations; the overall disability does not warrant any higher ratings. The diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder. As the rating schedule is adequate to evaluate the disabilities, referral for extraschedular consideration is not in order. Total Rating for Compensation Based on Individual Unemployability (TDIU) TDIU may be assigned, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In this case, the Veteran is service connection for his right knee disabilities only, with a combined rating of 30 percent. Therefore his total combined rating for service-connected disabilities is 30 percent and the Veteran has not met the threshold percentage requirements for TIDU as set forth under 38 C.F.R. § 4.16(a). Nevertheless, the claim may still be referred to the Director, Compensation and Pension Service, for assignment an extraschedular rating if the evidence of record shows that the Veteran is "unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities." 38 C.F.R. § 4.16(b). The appropriate TDIU standard is not whether the Veteran is able to obtain any employment or to maintain marginal employment. Moore v. Derwinski, 1 Vet. App. 356, 359 (1991) (holding that "mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant" (quoting Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975)). Rather, the standard is a subjective one and is whether the Veteran can obtain and maintain substantially gainful employment. The Veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability, without regard to advancing age or non-service connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. It is unclear from the record whether the Veteran is currently working. Private treatment records following his last knee surgery in June 2006 show that he returned to work in July 2006 with modifications at first and then without limitations later in the month. These records also note that the Veteran switched employers so that he could work with less walking and standing. At the time of his June 2011 examination, the Veteran reported that Dr. B.N.S. had advised him that he was unable to perform his normal work. No record to that affect has been associated with the claims file. Moreover, this is not akin to a finding of unemployability. Furthermore, the multiple VA examiners have not found the Veteran unemployable; noting instead the physical limitations (i.e., heavy lifting, prolonged standing, and prolonged walking) to his employment caused by his right knee disability. While the Veteran asserts that he is unemployable due to his service-connected disability, such contention, standing alone does not warrant extraschedular referral. Indeed, to find otherwise would require such referral in essentially every case. Absent convincing evidence of unemployability, the Board finds no basis upon which to refer the claim to the Director, Compensation and Pension Service for an extraschedular rating. Accordingly, an award of TDIU is not warranted here. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER A rating higher than 20 percent for residuals, arthrotomy right knee, status post anterior cruciate ligament (ACL) avulsion, is denied. A rating higher than 10 percent for right knee traumatic arthritis, is denied. A total disability rating based on individual unemployability (TDIU) due to service connected disability is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs