Citation Nr: 1335181 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 10-03 755 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a disability evaluation in excess of 10 percent for residuals of a torn lateral meniscus of the left knee. 2. Entitlement to an initial disability evaluation in excess of 10 percent for left knee instability, since April 19, 2010. 3. Entitlement to a temporary total rating (TTR) based on convalescence under 38 C.F.R. § 4.30 (2012), to include consideration of VAOPGCPREC 5-2005 and 38 C.F.R. § 4.16(b) (2012) (Eligibility for a "Temporary" Total Disability Rating Based on Individual Unemployability (TDIU)). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from December 1995 to December 1999. These matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). A detailed procedural history as to these claims was provided in the Board's November 2012 remand decision and will not be repeated here. Following the 2012 remand decision, the RO confirmed and continued the 10 percent rating in effect for left knee meniscal tear residuals. Entitlement to a TTR for convalescence pursuant to 38 C.F.R. § 4.30 also continued to be denied. However, a separate 10 percent rating for instability of the left knee was established, and a 10 percent rating was assigned, effective April 19, 2010, which is the date that it was factually ascertainable that instability existed. As the Veteran filed a claim for an increased rating for a left knee disability in March 2009, the claim for an initial increased rating for instability of the left knee is classified as on the title page of this decision. The following determinations are based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." FINDINGS OF FACT 1. A claim for an increased rating for the Veteran's service-connected left knee disability was received by the RO on March 13, 2009. 2. Throughout the appeal period, residuals of a torn left knee medial meniscus are not manifested by compensable limitation of motion or recurrent dislocation or subluxation; there is painful motion. 3. Since April 19, 2010, the Veteran's left knee symptoms have been manifested by slight lateral instability. Throughout the appeal period, no evidence of ankylosis, a dislocated semilunar cartilage, or impairment of the tibia and fibula has been present. 4. The competent and probative evidence of record does not reflect that the Veteran's left knee surgery on February 18, 2009, resulted in the medical need for at least one month of convalescence. The surgery did not result in incompletely healed surgical wounds, stumps of recent amputations, application of a body cast, use of a wheelchair or crutches, therapeutic immobilization, immobilization by cast, or the necessity of house confinement. The Veteran returned to work without restrictions on February 27, 2009. 5. At the time of his left knee surgery on February 18, 2009, the Veteran's service-connected disabilities were the following: recurrent and postoperative nasal polyps, rated as 30 percent disabling: left torn lateral meniscus, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; psoriasis, rated as 10 percent disabling; and tinea pedis, rated as noncompensable. A combined rating of 50 percent was in effect. 6. The competent and probative evidence of record does not support a finding that the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation following surgery in February 2009. CONCLUSIONS OF LAW 1. The criteria for a disability evaluation in excess of 10 percent for left knee torn medial meniscus are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.59, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5010-5260 (2012). 2. The criteria for an initial disability evaluation in excess of 10 percent for left knee instability are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.400, 4.1, 4.7, 4.59, 4.40, 4.45, 4.71a, DC 5257 (2012). 3. The criteria for a TTR for a period of convalescence following left knee surgery in February 2009, to include consideration of a TDIU, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.340, 3.342, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. First, VA has a duty under the VCAA to notify a claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, a March 2009 letter to the Veteran from the RO specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to service connection on a direct and presumptive basis, and of the division of responsibility between the Veteran and the VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VA essentially satisfied the notification requirements of the VCAA by way of the letter by: (1) informing the Veteran about the information and evidence not of record that was necessary to substantiate his claims; (2) informing the Veteran about the information and evidence VA would seek to provide; and (3) informing the Veteran about the information and evidence he was expected to provide. Second, VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012). The information and evidence associated with the claims file consist of his service treatment records (STRs), VA medical treatment records, VA examinations, and statements from the Veteran and his representative. There is no indication that there is any additional relevant evidence to be obtained by either VA or the Veteran. The United States Court of Appeals for Veterans Claims (Court) held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, to specifically include that a disability rating and an effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the Veteran was provided with notice of this information in the March 2009 letter mentioned above. The Veteran received several VA examinations of his left knee, to include evaluations in April 2009 April 2010, June 2012, and January 2013. In totality, these examination reports are adequate, as on each occasion, the claims file was reviewed; the examiner reviewed the pertinent history, examined the Veteran, and provided adequate findings in sufficient detail. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Moreover, as to the January 2013 report, the clinical findings substantially complied with the Board's November 2012 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). There is no objective evidence indicating that there has been a material change in the service-connected left knee disability since the Veteran was last examined. 38 C.F.R. § 3.327(a) (2012). The duties to notify and assist the Veteran have been met. Increased Ratings - In General Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. Part 4 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if 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). 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). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings may be appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See e.g. Hart v. Mansfield, 21 Vet. App. 505 (2007). A claim placed in appellate status by disagreement with the original or initial rating award (service connection having been allowed) but not yet ultimately resolved, remains an "original claim" and is not a new claim for increase. Fenderson v. West, 12 Vet. App. 119 (1999). In such cases, separate compensable evaluations may be assigned for separate periods of time, but only if such distinct periods are shown by the competent evidence of record during the pendency of the appeal, a practice known to the Court as "staged" ratings. Id. at 126. Left Knee X-ray studies of record confirm post-traumatic arthritis of the left knee. Thus, DCs 5010 and 5003 are applicable and direct the Board's attention to DCs 5260 and 5261 for limitation of motion. Traumatic arthritis, confirmed by X-ray, is rated as degenerative arthritis under DC 5010-5003. 38 U.S.C.A. § 4.71a, DC 5003 (2012). Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate DCs involved under 38 C.F.R. § 4.71a, DC 5003 (2012). When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the DCs, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion: With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations...20% With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups...10% Note 1: The 20% and 10% ratings based on X-ray findings will not be combined with ratings based on limitation of motion. Note 2: The 20% and 10% ratings based on X-ray findings will not be utilized in rating conditions listed under DC 5013 to 5024, inclusive. 38 C.F.R. Part 4, DC 5003 (2012). Under DC 5260, when limitation of flexion of the leg is limited to 60 degrees, the rating is noncompensable. Flexion limited to 45 degrees warrants a 10 percent rating. Flexion limited to 30 degrees warrants a 20 percent rating. The maximum rating under this DC (30 percent) is for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260 (2012). Limitation of extension of the leg is rated under DC 5261. A noncompensable rating is warranted when extension is limited to 5 degrees; a 10 percent rating when limited to 10 degrees; a 20 percent rating when limited to 15 degrees; a 30 percent rating when limited to 20 degrees; a 40 percent rating when limited to 30 degrees; and a 50 percent rating when limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261 (2012). A separate evaluation of 10 percent has also been assigned for slight lateral instability of the left knee under DC 5257. The maximum rating under this DC, for recurrent subluxation or lateral instability, is for severe impairment, which warrants a 30 percent rating. A 20 percent rating is warranted for moderate impairment, and a 10 percent rating is warranted for slight impairment. 38 C.F.R. § 4.71a, DC 5257 (2012). In VAOPGCPREC 23-97, 62 Fed. Reg. 63604 (1997), VA's General Counsel determined that, when a claimant has arthritis and instability of the knee, multiple ratings may be assigned under DC 5003 and 5257. Moreover, in VAOPGCPREC 9-98, 63 Fed. Reg. 56704 (1998), it was found that, even if the veteran did not have limitation of motion of the knee meeting the criteria for a noncompensable evaluation under DCs 5260 or 5261, a separate evaluation could be assigned if there was evidence of a full range of motion "inhibited by pain." Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). The normal range of knee motion for VA purposes is from zero degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II (2012). Background Service connection for residuals of a left torn medial meniscus was granted in a July 2004 rating action, and a 10 percent disability evaluation was assigned under DC 5257. A claim for an increased rating for the Veteran' service-connected left knee disorder was received by the RO on March 13, 2009. In May 2009, the RO denied entitlement to a higher rating for the left knee condition. As noted earlier, a February 2013 rating action resulted in the grant of a separate 10 percent rating for left knee instability, pursuant to DC 5257, and the Veteran's left torn lateral meniscus residuals are now rated pursuant to DC 5010-5260. In effect, separate 10 percent ratings are in effect for left knee meniscus tear residuals and for left knee instability. As noted above, a claim for an increased rating for the service-connected left knee symptoms was received by the RO on March 13, 2009. That claim has been pending since that time. Thus, it is necessary to determine entitlement to an increased rating for the service-connected residuals of a left torn medial meniscus from March 13, 2009 or at any point in the one-year period prior to that date, and entitlement to an initial rating in excess of 10 percent for left knee instability from April 19, 2010. See 38 C.F.R. § 3.400(o) (the effective date of an evaluation and award of compensation for an increased rating claim is the date of receipt of the claim or the date entitlement arose, whichever is the later, unless a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of the claim for increased compensation). The Veteran's STRs show that he injured his left knee when he was hit by a ladder putting up a tent. Post service records include a magnetic resonance imaging (MRI) test of the left knee at a VA facility in March 2001. The MRI showed degeneration involving the posterior horn of the medial meniscus. In May 2001, there was pain in the left knee. When examined in October 2003, there was diffuse discomfort over the knee and vague discomfort over the lateral compartment. There was no instability and range of motion (ROM) was essentially normal. X-rays were also negative. The examiner opined that the Veteran probably had chondromalacia of the patella which was consistent with the injury. Additional VA examination was conducted in October 2006. At that time, the Veteran had diffuse medial joint line tenderness and lateral joint line tenderness. He did have an antalgic gait, and there was no ankylosis of the knee joint. There was valgus or varus deformity. Active and passive ROM of the left knee was from 0 to 135 degrees. There was no knee effusion or erythema. There was minimal pain or guarding on ROM of the knee. MRI of the knee in October 2006 suggested a torn left lateral meniscus. In a January 2007 addendum to the exam, repetitive active motion of the left knee times 5 resulted in decreased range of flexion by 10 degrees, due to pain at the medial joint line. The Veteran had flare-ups of symptoms when involved in activities that required running or walking on uneven terrain which was required for his job as a border patrol agent. It was the examiner's estimate that during repetitive use of the left knee, the Veteran would have functional loss due to left knee pain and recurrent effusion and excess fatigability. VA records show that the Veteran underwent left knee arthoscopy with partial resection of the lateral meniscus on February 18, 2009. Initially, the examiner thought the Veteran would need a month of medical leave for recovery. See February 18, 2009 report. When seen on February 24, 2009, the Veteran reported that he had no left knee pain, but that when he did, he took pain medications. He said that he had only one week of sick leave so he needed to go back to work that Saturday. His supervisor had agreed to give him "easy work" for a month, so he wanted no restrictions. He worked as a border patrol guard and rode a horse. Following examination which showed minimum to no antalgic gait and ability to perform without pain, the examiner stated that the Veteran could return to work without restrictions. A VA left knee examination was conducted on April 19, 2010. At that time, the Veteran walked with an antalgic gait. There was no evidence of abnormal weight bearing. There was 3 degrees of lateral collateral ligament laxity. There was no evidence of additional limitations after 3 repetitions of ROM. The Veteran said that his knee condition affected his ability to perform his job due to decreased mobility. He was able to accomplish most activities of daily living. X-ray showed no abnormalities of the left knee. VA left knee exam in June 2012 showed a current diagnosis of internal derangement, status post meniscal tear with chondromalacia. ROM following repetition was flexion to 140 degrees and extension to 0 degrees with weakened movement of the joint and interference with sitting, standing, and weight bearing. At the most recent VA exam of the left knee in January 2013, degenerative joint disease in the left knee was noted. While there was full extension and flexion of the knee, there was pain with movement. He continued to report tenderness or pain to palpation for joint line or soft tissues of the left knee. As for the Veteran's ability to work, the examiner noted that the Veteran was able to perform all his duties at work. There was no functional impairment due to left knee pain, weakened movement, excess fatigability, or incoordination. There was evidence of anterior instability in the left knee, 0-5 millimeters. Analysis The Veteran contends that ratings in excess of 10 percent are warranted for his left knee disabilities. He often wears a knee brace but he continues to have knee instability. His knee often gives out or locks up. It is constantly swollen and painful. At work, he has to limit his activities for fear of worsening the condition of his left knee. He feels restricted in his extracurricular activities. Limitation of Motion Initially, as noted since February 2007, a 10 percent rating has been assigned for the Veteran's ROM. As noted above, however, at no time has left knee limitation of motion been severe enough to be rated compensable. Instead, a 10 percent rating is in effect due to his complaints of pain upon movement pursuant to 38 C.F.R. §§ 4.40 and 4.45 (2012). A higher evaluation of 20 percent is warranted for limitation of flexion of the knee to 30 degrees or limitation of extension to 15 degrees. See 38 C.F.R. §§ 4.71a, DCs 5260, 5261 (2012). Clearly, such limitation is not demonstrated in the medical record, although pain on movement is reported. Moreover, X-ray involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations is not shown. Instability Review of the record reflects that 3 degrees of left lateral collateral ligament laxity was initially shown in the medical record as of VA examination on April 19, 2010. This instability was also shown at the time of the most recent VA exam in January 2013 when there was between 0-5 millimeters of medial-lateral instability. Based on all applicable laws and regulations, a separate 10 percent rating is warranted from April 19, 2010. See, e.g., 38 C.F.R. § 3.400 and VAOPGCPREC 23-97 and DC 5257. At the recent exam, the Veteran was noted to be able to perform all duties of his job. He is clearly independent in his activities of daily living. Thus, during the entire pendency of the appeal, the Veteran's left knee instability more nearly approximates the currently assigned 10 percent level for slight instability, rather than a higher 20 percent level for moderate instability. Accordingly, at no time during this appeal is a rating in excess of 10 percent warranted. Final Considerations As to the Veteran's residuals of left knee torn medial meniscus and left knee instability, higher alternative ratings are offered pursuant to DCs such 5256 for ankylosis of the knee joint, DC 5258 for dislocated semilunar cartilage, and DC 5262 for impairment of the tibia and fibula. However, there are no indications that the Veteran suffers from any of these disorders. As noted above, the Board has also considered the statements of the Veteran and his described knee symptoms. While the Veteran is competent to attest to the symptoms he experiences, the Board finds that the objective evidence of record consistently confirms that his knee disabilities are productive of pain with motion and slight instability. Thus, the assigned separate ratings of 10 percent adequately contemplate the Veteran's disability picture. Entitlement to higher ratings has not been shown at any point. See Hart, supra; Fenderson, supra. Ordinarily, the VA Schedule 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). The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for the relevant service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. The symptoms associated with the Veteran's left knee disabilities are not shown to cause any impairment that is not already contemplated by the relevant DCs, as cited above, and the Board finds that the rating criteria reasonably describe his disabilities. As previously noted, the objective evidence of record consistently confirms that his knee disabilities are productive of pain with some limitation of motion and slight instability. The assigned separate ratings of 10 percent adequately contemplate the Veteran's disability picture. Moreover, the Veteran has not been hospitalized for treatment of his left knee since surgery in 2009, and at the 2013 examination, he was able to accomplish all work responsibilities. Therefore, referral for consideration of an extraschedular rating is not warranted. TTR, to Include Consideration of a TDIU 38 C.F.R. § 4.30 (2012) sets forth provisions governing the award of convalescent ratings. It provides that a total disability rating (100 percent) will be assigned without regard to other provisions of the Rating Schedule when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted, effective from the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge or outpatient release. 38 C.F.R. § 4.30 (2012). In order to attain a temporary total disability rating, the veteran must demonstrate that his service-connected disability resulted in (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30(a) (2012). The Veteran contends that he is entitled to a TTR for treatment for his service-connected left knee following surgery on February 18, 2009. He points out that the physician was not comfortable with releasing him back to full duty work status until he assured him that his supervisor would accommodate him with light duty details. The Veteran said that he could not afford to be out of work for convalescence as he had to support his family of six. He feels that he should be considered to be "prorate[d] for the 14 days that he was off of work due to his left knee. See, e.g., his August 2009 statement. Initially, the Board will address whether a TTR is appropriate according to the criteria of 38 C.F.R. § 4.30(a) (2012). As noted earlier, the Veteran had a left knee arthroscopy with partial resection of the lateral meniscus. It was noted that the Veteran would need to be on medical leave until March 18, 2009, for convalescence. However, he was released for full duty without restrictions (as he requested) on February 27, 2009. There is nothing in the record showing that the Veteran missed work after that date due to his left knee condition. Thus, in this case it is not shown that his condition required a one-month convalescence period or that his surgery resulted in severe postoperative residuals, such as incomplete surgical scars, stumps of recent amputations, therapeutic immobilization or one major joint or more, application of a body cast, or the necessity for house confinement. He did not use a wheelchair or crutches. As such, entitlement to a TTR based on convalescence following surgery in February 2009 is denied. As per the Board's November 2011 remand, the Veteran was given the chance to supplement the record with information regarding his inability to work at his job for the period in question (post left knee surgery). However, no information was presented. Thus, there is nothing in the record showing that the Veteran did not work following his approximate one week recovery from left knee surgery in 2009, and subsequently dated treatment records show that at the current time, there are no limitations on his daily or employment activities. After reviewing the totality of the record, the Board finds the preponderance of the evidence to be against an award of a TTR under 38 C.F.R. § 4.30 for treatment of the Veteran's left knee. The Board has considered the Veteran's own contentions made in written statements of record. Crucially, however, the evidence of record does not demonstrate that the Veteran required convalescence of at least one month, or that he required immobilization by cast, without surgery, of one major joint or more. Accordingly, the preponderance of the evidence is against the award of a temporary total convalescent rating following surgery on February 18, 2009. As a preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). As for a TDIU for this period, 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. See 38 C.F.R. § 4.16 (2012). A finding of total disability is appropriate "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." See 38 C.F.R. §§ 3.340(a)(1), 4.15 (2012). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." See 38 C.F.R. § 4.16(a) (2012). VA's General Counsel has held that under 38 C.F.R. § 4.16, a TDIU may be assigned based upon a veteran's temporary (i.e., non-permanent) inability to follow a substantially gainful occupation. It was noted, however, that not every period of inability to work will establish an inability to follow a substantially gainful occupation warranting a TDIU rating, because it may be possible to secure and retain employment and to earn significant income despite occasional periods of incapacity. It was further noted that "[i]n view of the availability of medical leave, leaves of absence, and other routine accommodations for periods of incapacity, it is reasonable to conclude that some periods of incapacity or time lost from work would not preclude a veteran from securing or maintaining substantially gainful employment." VAOPGCPREC 5-2005 (Nov. 25, 2005). A claim for a TDIU presupposes that the rating for the [service-connected] condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). A 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 are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. See 38 C.F.R. § 4.16(a) (2012). 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. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the disability rating itself is recognition that industrial capabilities are impaired]. In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training and previous work experience, but not to his age or to any impairment cause by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). Analysis For the relevant period under consideration (post surgery on February 18, 2009, the Veteran's service-connected disabilities were: recurrent and postoperative nasal polyps, rated as 30 percent disabling: left torn lateral meniscus, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; psoriasis, rated as 10 percent disabling; and tinea pedis, rated as noncompensable. A combined rating of 50 percent was in effect. Clearly, the service-connected disabilities do not the meet the schedular criteria for consideration of TDIU under 4.16(a) (2012). Moreover, the evidence does not show that any of the Veteran's service-connected disabilities precluded him at the time from working. While he was given the opportunity to supplement the record with employment and/or income information regarding his left knee by the Board's November 2011 remand, no additional evidence was submitted. Moreover, there is nothing in the record showing that the Veteran's left knee condition caused him to miss work after he was released without restrictions on February 27, 2009. While he may have been on light duty for a period, there is no indication that he was unable to engage in substantially gainful employment. For these reasons, the Board finds that the evidence of record does not demonstrate that the Veteran's service-connected disabilities, notably his left knee arthroscopy with partial resection of the lateral meniscus, rendered him unable to secure and follow a substantially gainful occupation post surgery. He was released to full work duty status on February 27, 2009, following surgery on February 18, 2009. As indicated above, the competent and probative evidence demonstrates that the Veteran's service-connected left knee disabilities were productive of significant symptomatology but he returned to work approximately nine days later. Based on the above analysis, the Board therefore concludes that a grant of a temporary TDIU is not warranted under 38 C.F.R. § 4.16(a) for the period under review, post surgery on February 18, 2009. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2008); 38 C.F.R. § 3.102 (2009); Gilbert, supra. Therefore, the Board is unable to identify a reasonable basis for granting the Veteran's claim. ORDER Entitlement to a disability evaluation in excess of 10 percent for residuals of a torn lateral meniscus of the left knee is denied. Entitlement to an initial disability evaluation in excess of 10 percent for left knee instability, since April 19, 2010, is denied. Entitlement to a TTR based on convalescence under 38 C.F.R. § 4.30, to include consideration of a temporary TDIU, is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs