Citation Nr: 1339587 Decision Date: 12/02/13 Archive Date: 12/18/13 DOCKET NO. 10-35 756 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to a rating in excess of 20 percent for internal derangement, right knee. 2. Entitlement to a rating in excess of 10 percent for degenerative joint disease, right knee, prior to June 11, 2013, and in excess of 20 percent from June 11, 2013. 3. Entitlement to a rating in excess of 10 percent for left knee strain. 4. Entitlement to a total disability rating based upon individual unemployability as a result of service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1964 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions in July 2009 and August 2009 by the Philadelphia, Pennsylvania, Regional Office and Insurance Center (RO) of the Department of Veterans Affairs (VA). In March 2013, the Board remanded the case for additional development. An August 2013 rating decision granted an increased 20 percent rating for degenerative joint disease, right knee, effective from June 11, 2013. Therefore, the issue on appeal as to this matter has been revised. FINDINGS OF FACT 1. The Veteran's service-connected right knee internal derangement disability is manifested by no more than a moderate knee impairment with instability. 2. The Veteran's service-connected right knee degenerative joint disease disability prior to June 11, 2013, was manifested by no more than arthritis and range of motion from 0 to 80 degrees without evidence of additional limitation due to pain or dysfunction, and from June 11, 2013, by no more than arthritis and range of motion from -15 to 95 degrees without evidence of additional limitation due to pain or dysfunction. 3. The Veteran's service-connected left knee disability is manifested by no more than arthritis and range of motion from 0 to 110 degrees without evidence of additional limitation due to pain or dysfunction or knee instability or subluxation. 4. The Veteran is not shown to be unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. 5. The Veteran is not shown to be unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 for internal derangement, right knee, 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 rating in excess of 10 percent for a left knee disability prior to June 11, 2013, and for a rating in excess of 20 percent from June 11, 2013, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5260, 5261 (2012). 3. The criteria for a rating in excess of 10 percent for a left knee disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5261 (2012). 4. The criteria for a TDIU have not been met. 38 C.F.R. § 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Veteran was notified of the duties to assist and of the information and evidence necessary to substantiate his claims by correspondence dated in June 2009, July 2009, January 2011, and August 2012. The notice requirements pertinent to the issues on appeal have been met and all identified and authorized records relevant to these matters have been requested or obtained. The available record includes service treatment records, VA treatment and examination reports, private medical reports, and the Veteran's statements in support of his claims. The development requested on remand in March 2013 has been substantially completed. The Veteran's April 2013 correspondence is construed as corroboration of the information provided in a June 2012 Social Security Administration (SSA) report and information recorded by the June 2009 VA examiner as to the Veteran's receipt of retirement rather than SSA disability benefits. There is no evidence of any additional existing pertinent records. The Board finds that further attempts to obtain additional evidence would be futile. When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. VA medical opinions obtained in this case are adequate as they are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints and symptoms. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion as to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2012). The available medical evidence is sufficient for adequate determinations. There has been substantial compliance with all pertinent VA law and regulations and to adjudicate the claims would not cause any prejudice to the appellant. Factual Background Service treatment records show that the Veteran fell and sustained a right knee injury in June 1967. He underwent an arthrotomy with debridement of the right medial femoral condyle and removal of two floating bodies from the knee joint in September 1967. VA examination in September 1993 revealed advanced degenerative changes involving the medial and patella femoral compartments. It was noted there was a vague suggestion of possible osteonecrosis. A March 1994 rating decision established service connection for internal derangement, right knee. A 10 percent rating was assigned pursuant to Diagnostic Code 5257. An August 1994 private medical report noted the Veteran had undergone further surgery to his right knee in 1985 and that he was having marked difficulty in his job as a self-employed painter. An examination revealed mild effusion, marked tenderness along the medial jointline, range of motion from 0 to 105 degrees, marked atrophy to the quadriceps muscle mass, and mild medial laxity. It was the examiner's impression that the Veteran was severely incapacitated as to his knee. VA examination in November 1994 revealed mild lateral and medial patella tenderness. Extension was full and flexion was to 110 degrees. There was no evidence of laxity. The diagnosis was postoperative right knee times two with advanced osteoarthritis. An April 1995 rating decision granted an increased 20 percent rating for internal derangement of the right knee. The Veteran was notified that his appeal as to this matter was considered fully satisfied. VA examination in May 2002 revealed atrophy of the right quadriceps muscle and swelling of the right knee. Range of motion studies demonstrated extension to 0 degrees and flexion to 95 degrees. Drawer sign was negative. There was no evidence of instability, but there was evidence of a moderate degree of fatigability. The diagnosis was degenerative joint disease with a history of internal derangement. VA examination in June 2005 revealed swelling of the right knee with motion from 0 to 110 degrees. There was no additional loss of motion due to pain, fatigue, weakness, or incoordination. There was a positive drawer sign and a mild to moderate degree of laxity of the right knee joint. There was no atrophy and no neurological deficits. Motor strength was 5/5. The diagnosis was right knee internal derangement with degenerative joint disease. VA examination in August 2005 revealed swelling, stiffness, and crepitus to the right knee with motion from 0 to 95 degrees. There was no additional loss of motion due to pain, fatigue, weakness, or incoordination. There was mild instability to the right knee. The left knee demonstrated no swelling and motion from 0 to 135 degrees. There was no additional loss of motion due to pain, fatigue, weakness, or incoordination and no instability of the left knee joint. The diagnoses included internal derangement of the right knee and left knee strain. A November 2005 rating decision, in pertinent part, established service connection for degenerative joint disease, right knee, and assigned a 10 percent disability rating, finding clear and unmistakable error in the June 2002 rating's assignment of a 30 percent rating for right knee internal derangement. A 20 percent rating was restored for internal derangement, right knee. VA examination in January 2006 revealed the Veteran walked with an antalgic gait due to right knee pain. There were no difficulties in regards to squatting of the left knee. Range of motion studies revealed left knee motion from 0 to 150 degrees. Repetitive use testing revealed no additional loss of motion due to pain, fatigue, weakness, or lack of endurance. There was no pain elicited with ranges of motion. There was no evidence of instability, crepitus, tenderness, or swelling. X-ray study revealed no arthritis. The diagnosis was normal left knee examination. A February 2006 rating decision established service connection for left knee strain. A 0 percent disability rating was assigned. In correspondence dated in April 2009 the Veteran requested entitlement to increased ratings. He reported his right knee problems were getting worse and causing his left knee to become painful and very uncomfortable. He stated his left knee had been giving out and he was having problems getting around. In a June 2009 statement he asserted his right knee disability had significantly worsened and that his present rating did not account for his swelling, aching, giving out, and inability to perform his day to day work as a self-employed painter. He stated he had taken an early retirement in 2009 and only worked a few days each month to supplement his SSA income. The Veteran's son reported in June 2009 that he had witnessed the deterioration of his father's right knee disorder over a prolonged period of time. He stated he had been unable to participate in many family functions because of the limited time he was able to spend on his feet and that he had given up his trade because of his knee disability. In a subsequent statement the Veteran reported that he was unable to work full time because of knee pain and provided photographs of his knees in support of his claim concerning right knee swelling. In his June 2009 application for a TDIU he reported he last worked full time in December 2008. He reported he had worked as a self employed painting contractor for more than 20 years and that he had completed four years of high school education. He noted he had no additional education or training since he became too disabled to work. On VA examination in June 2009 the Veteran complained of right knee pain that increased over the day with weightbearing. He denied having any symptom flare-ups. He stated he had last worked full time in December and only worked a few days each month for no more than four hours a day and with no ladder work. The examiner noted he walked with a slow gait and a slight limp without assistive devices. The right knee was quite swollen as compared to the left. No laxity was demonstrated. Right knee extension was to 0 degrees and flexion was to 90 degrees. Left knee extension was to 0 degrees and flexion was to 120 degrees. The range of motion was painless and repetitive motion studies revealed no additional limited motion due to pain, fatigue, weakness, and/or lack of endurance. The diagnoses included posttraumatic osteoarthritis of the right knee and chronic left knee strain. A July 2009 rating decision granted an increased 10 percent rating for left knee strain effective from April 15, 2009. Right knee and TDIU issues were deferred. An August 2009 rating decision denied increased right knee disability ratings and denied a TDIU. On VA examination in January 2011 the Veteran complained of pain, tightness, swelling, locking, fatigability, and lack of endurance of the right knee and pain, stiffness, fatigability, and lack of endurance of the left knee. He reported he used pain relief medication, but no assistive devices. It was noted there was no functional impairment in regard to his ability to complete his activities of daily living completely and independently, but he had retired from his employment as a painter because of bilateral knee pain. He was able to stand for approximately 20 minutes and walk one block without pain, but was unable to climb, squat, jump, run, or climb stairs without pain. He had experienced no flare-ups since retiring in 2008 and did not describe instability of the knees. X-ray studies in 2005 revealed severe osteoarthritis of the right knee and osteoarthritis of the left knee. The examiner noted range of motion studies three times using a goniometer revealed right knee extension to 0 degrees and flexion to 80 degrees to the point of pain. Motion after three repetitions was not additionally limited by pain, fatigue, weakness, or lack of endurance. There was no evidence of instability. Left knee extension was to 0 degrees and flexion was to 120 degrees to the point of pain. Motion after three repetitions was not additionally limited by pain, fatigue, weakness, or lack of endurance. There was no evidence of instability. The diagnoses included osteoarthritis of the knees and right knee arthrotomy including debridement of the medial femoral condyle and removal of two floating bodies in the knee joint. In a January 2011 statement the Veteran reported that he had started working part time. He stated the amount of time he was able to spend on his feet was limited and that he had been unable to find other part-time work because of poor economic conditions and his employment restrictions. VA treatment records show that in September 2011 the Veteran complained of bilateral knee stiffness. The examiner provided a diagnosis of bilateral degenerative joint disease and prescribed pain relief medication. On VA examination in June 2013 the Veteran complained of chronic pain with use of pain relief medication that was helpful. The examiner noted active and passive range of motion using a goniometer revealed right extension to -15 degrees and flexion to 95 degrees. Left knee extension was to 0 degrees and flexion was to 110 degrees. Motion after three repetitions was not additionally limited by pain, fatigue, weakness, or lack of endurance. The knees were painful to palpation, right greater than left. The knee joints were stable with no evidence of patellar subluxation or dislocation. It was noted the Veteran used a cane because his right knee was occasionally unstable. There was no meniscal disability. The diagnoses included bilateral degenerative joint disease. The examiner noted the Veteran was unable to work as a painting contractor at that time and was unable to climb ladders, but that he was capable of sedentary work. A July 2013 decision denied referral for an extraschedular rating. It was noted the June 2013 examiner found the Veteran was capable of sedentary work and that the evidence did not demonstrate an exceptional or unusual disability picture. An August 2013 rating decision granted an increased 20 percent rating for degenerative joint disease, right knee, effective from June 11, 2013. A combined service-connected disability rating of 50 percent was assigned. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. This Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. For the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition. Over a period of many years, a veteran's disability claim may require reratings in accordance with changes in laws, medical knowledge and his or her physical or mental condition. It is thus essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the pendency of the appeal, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2012). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited. 38 C.F.R. § 4.14 (2012). 5003 Arthritis, degenerative (hypertrophic or osteoarthritis): Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 pct is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 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, rate as below: 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 pct and 10 pct ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Note (2): The 20 pct and 10 pct ratings based on X-ray findings, above, will not be utilized in rating conditions listed under diagnostic code 5013 to 5024, inclusive. 5010 Arthritis, due to trauma, substantiated by X-ray findings: Rate as limitation of motion of affected part, as arthritis, degenerative. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2012). 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). 5260 Leg, limitation of flexion of: Flexion limited to 15° 30 Flexion limited to 30° 20 Flexion limited to 45° 10 Flexion limited to 60° 0 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2012). 5261 Leg, limitation of extension of: Extension limited to 45° 50 Extension limited to 30° 40 Extension limited to 20° 30 Extension limited to 15° 20 Extension limited to 10° 10 Extension limited to 5° 0 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2012). The Rating Schedule also provides some guidance by defining full range of motion of the knee as flexion and extension from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II (2012). A finding of dysfunction due to musculoskeletal pain must be supported by, among other things, adequate pathology. 38 C.F.R. § 4.40 (2012). The factors of disability reside in reductions of their normal excursion of movements in different planes and ratings should consider (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 or impaired ability to execute skilled movements smoothly, and (f) pain on movement, swelling, deformity or atrophy of disuse and instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing. 38 C.F.R. § 4.45 (2012). With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. 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. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59 (2012). Functional loss due to pain is to be rated at the same level as the functional loss when flexion is impeded. Schafrath v. Derwinski, 1 Vet. App. 589 (1993). Pain itself does not rise to the level of functional loss as contemplated by VA regulations, but pain may result in functional loss if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that whether lay evidence is competent and sufficient in a particular case is an issue of fact and that lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Court has also held that VA is free to favor one medical opinion over another provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3 (2012). Based upon the evidence of record, the Board finds the Veteran's service-connected right knee internal derangement disability is manifested by no more that a moderate knee impairment with instability. His service-connected right knee degenerative joint disease disability prior to June 11, 2013, was manifested by no more than arthritis and range of motion from 0 to 80 degrees without evidence of additional limitation due to pain or dysfunction, and from June 11, 2013, is manifested by no more than arthritis and range of motion from -15 to 95 degrees without evidence of additional limitation due to pain or dysfunction. His service-connected left knee disability is manifested by no more than arthritis and range of motion from 0 to 110 degrees without evidence of additional limitation due to pain or dysfunction or knee instability or subluxation. The pertinent evidence demonstrates that upon VA examination in June 2009 the Veteran complained of right knee pain with weightbearing, but that he denied having any symptom flare-ups. He walked with a slow gait and a slight limp and his right knee was swollen. There was no evidence of knee laxity and right knee motion from to 0 to 90 degrees was painless. Left knee motion was painless from 0 to 120 degrees. There was no additional limited motion due to pain, fatigue, weakness, and/or lack of endurance. On VA examination in January 2011 the Veteran complained of pain, tightness, swelling, locking, fatigability, and lack of endurance of the right knee and pain, stiffness, fatigability, and lack of endurance of the left knee. The examiner noted range of motion for the right knee from 0 to 80 degrees to the point of pain and for the left knee from 0 to 120 degrees to the point of pain. Motion after three repetitions was not additionally limited by pain, fatigue, weakness, or lack of endurance. There was no evidence of instability. On VA examination in June 2013 the Veteran's right knee extension was limited to -15 degrees and flexion was limited to 95 degrees. Left knee extension was to 0 degrees and flexion was to 110 degrees. Motion after three repetitions was not additionally limited by pain, fatigue, weakness, or lack of endurance. The knees were painful to palpation, but the knee joints were stable with no evidence of patellar subluxation or dislocation. The examiner noted there was no meniscal disability. Although the Veteran has complained, in essence, of additional or more severe knee disabilities and functional impairment including as due to symptoms of locking, instability, fatigability, and lack of endurance, the Board finds the objective VA medical findings are persuasive and adequate representations of his disabilities. The examination findings over the course of this appeal are consistent and shown to have been based upon thorough examinations with adequate consideration of the Veteran's reported symptoms. The objective evidence is not indicative of knee locking, more than moderate right knee instability, or additional functional loss due to abnormal or weakened movement, excess fatigability, incoordination or impaired ability to execute skilled movements smoothly, pain on movement, swelling, deformity or atrophy of disuse and instability of station, disturbance of locomotion, or interference with sitting, standing and weight-bearing. The evidence does not demonstrate severe right internal derangement, right knee extension limited more than 15 degrees, limited left knee extension, or left or right knee flexion limited to a compensable degree. Therefore, the claims for higher schedular ratings must be denied. The Board further finds that there is no evidence of any unusual or exceptional circumstances that would take this case outside the norm so as to warrant an extraschedular rating. Extraschedular consideration under 38 C.F.R. § 3.321(b)(1) is determined on a disability-by-disability basis rather than on the combined effect of a veteran's service-connected disabilities. See Johnson v. Shinseki, 26 Vet. App. 237, 245 (2013) (en banc). The Veteran's service-connected left and right knee disabilities are found to be adequately rated under the available schedular criteria and the objective findings of impairment are well documented. The Court in Thun v. Peake, 22 Vet. App. 111 (2008), has established a three-step inquiry for determining whether a veteran is entitled to extraschedular rating consideration. First, determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, then determine whether the claimant's 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 Compensation and Pension Service to determine whether, to accord justice, a veteran's disability picture requires the assignment of an extraschedular rating. The persuasive evidence in this case is also not indicative of a marked interference with employment as a result of the service-connected disability. In fact, the June 2013 VA examiner found the Veteran was able to perform sedentary work. There is no evidence of other related factors such as frequent periods of hospitalization due to a service-connected disability. Therefore, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under 38 C.F.R. § 3.321, is not warranted. See Bagwell v. Brown, 9 Vet. App. 337 (1996). A total rating for compensation, however, may also be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2012). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) Disabilities resulting from common etiology or a single accident, (3) Disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) Multiple injuries incurred in action, or (5) Multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the required percentages for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. 38 C.F.R. § 4.16(a). 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. Rating boards are to refer to the Director of the Compensation and Pension Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements. 38 C.F.R. § 4.16(b). The Court has held that entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b)(1) 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). A veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19 (2012). The Court has held that in determining entitlement to a total disability rating based upon individual unemployability neither nonservice-connected disabilities nor advancing age may be considered. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Id. A review of the record reveals that service connection has been established for internal derangement, right knee, (20 percent), degenerative joint disease, right knee, (20 percent), and left knee strain (10 percent). The Veteran's combined service-connected disability rating is 50 percent. The Board notes that the Veteran in this case does not satisfy the percentage criteria for a TDIU under 38 C.F.R. § 4.16(a), as he does not have two or more service-connected disabilities with one rated at least 40 percent disabling and a combined rating of at least 70 percent disabling, or one disability rated 60 percent or more. His combined service-connected disability rating is 50 percent. The service-connected disabilities addressed in this case are adequately rated under the available schedular criteria and the objective findings of physical impairment are well documented. Although the Veteran contends that he is unable to work as a result of his service-connected disabilities, the Board finds there is no evidence of any unusual or exceptional circumstances related to his service-connected disabilities that would put his case outside the norm so as to warrant referral for consideration of a TDIU rating pursuant to 38 C.F.R. § 4.16(b). The June 2013 VA examiner's opinion that the Veteran is capable of sedentary work is persuasive. The Veteran is shown to have completed four years of high school education and the Board finds his service-connected knee disabilities are not disorders that normally preclude sedentary substantially gainful employment. He is shown to have had a long and productive history of substantially gainful self employment and the skills he acquired managing his own business are found to be skills that are transferable to other sedentary, less physically demanding employment. Accordingly, the Board finds that the preponderance of the evidence is against a finding that the Veteran is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. Therefore, referral for consideration of a TDIU rating pursuant to 38 C.F.R. § 4.16(b) is not warranted and the claim must be denied. When all the evidence is assembled, VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The Board finds that the preponderance of the evidence is against the Veteran's claims. (CONTINUED ON NEXT PAGE) ORDER Entitlement to a rating in excess of 20 percent for internal derangement, right knee, is denied. Entitlement to a rating in excess of 10 percent for degenerative joint disease, right knee, prior to June 11, 2013, and in excess of 20 percent from June 11, 2013, is denied. Entitlement to a rating in excess of 10 percent for left knee strain is denied. Entitlement to a TDIU is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs