Citation Nr: 1416615 Decision Date: 04/15/14 Archive Date: 04/24/14 DOCKET NO. 08-37 055A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for anterior cruciate ligament insufficiency, right knee, status post reconstruction, plus peripheral medial meniscus tear with degenerative arthritis. 2. Entitlement to a disability rating in excess of 10 percent for status post partial lateral meniscectomy, left knee, with left anterior cruciate ligament tear with degenerative arthritis. 3. Entitlement to a total disability rating based on individual unemployability due to service connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Dustin Ware, Associate Counsel INTRODUCTION The Veteran had active military service from September 1988 to February 1990. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. Clarification of Issues on Appeal The Court has held that entitlement to TDIU is an element of all increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In light of the Court's holding in Rice, as well as the Notification of Personnel Action effective in January 2003, among other things, the Board has amended the issues on appeal to include entitlement to TDIU as reflected above. FINDINGS OF FACT 1. The Veteran's right knee disability is manifested by moderate instability. There is no evidence of compensable limitation of flexion; severe subluxation or severe lateral instability; dislocated or removed semilunar cartilage; genu recurvatum; or impairment to the tibia or fibula sufficient to warrant an increased evaluation. 2. Prior to August 22, 2013, the Veteran's arthritis of the right knee is manifested by painful motion but not ankylosis. 3. As of August 22, 2013, the Veteran's arthritis of the right knee is manifested by limitation of extension of 10 degrees and favorable ankylosis. 4. The Veteran's left knee disability is manifested by moderate instability. There is no evidence of compensable limitation of flexion; severe subluxation or severe lateral instability; dislocated or removed semilunar cartilage; genu recurvatum; or impairment to the tibia or fibula sufficient to warrant an increased evaluation. 5. Prior to August 22, 2013, the Veteran's arthritis of the left knee is manifested by painful motion but not ankylosis. 6. As of August 22, 2013, the Veteran's arthritis of the left knee is manifested by limitation of extension of 10 degrees and favorable ankylosis. 7. The competent evidence of record indicates the Veteran's service-connected disability renders him unable to secure or follow substantially gainful employment as of August 22, 2013. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for residuals for anterior cruciate ligament insufficiency, right knee, status post reconstruction, plus peripheral medial meniscus tear with degenerative arthritis, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5257, 5258, 5259, 5260, 5261, 5262, 5263, 7801, 7802, 7804, 7805 (2013). 2. The criteria for a separate evaluation of 10 percent, but not greater, for arthritis of the right knee prior to August 22, 2013, have been met; as of August 22, 2013 the criteria for a separate evaluation of 30 percent, but not greater, for favorable ankylosis of the right knee have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5256, 5260, 5261 (2013). 3. The criteria for an evaluation of 20 percent, but not greater, for status post partial lateral meniscectomy, left knee, with left anterior cruciate ligament tear with degenerative arthritis, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5257 (2013). 4. The criteria for a separate evaluation of 10 percent, but not greater, for arthritis of the left knee prior to August 22, 2013, have been met; as of August 22, 2013 the criteria for a separate evaluation of 30 percent, but not greater, for favorable ankylosis of the left knee have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5256, 5260, 5261 (2013). 5. The criteria for a total disability evaluation based on individual unemployability due to service-connected disability have been met from August 22, 2013. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA's duty to notify was satisfied prior to the rating decision on appeal through an October 2007 letter sent to the Veteran that fully addressed all notice elements. The letter informed the appellant of what evidence was required to substantiate his increased rating claims, and of the Veteran's and VA's respective duties for obtaining evidence. In light of the above, the Board finds that the Veteran was provided all required notice and that no useful purpose would be served by delaying appellate review to send out additional notice letters. VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2013). Service treatment records are associated with the claims file. All post-service VA and private treatment records identified by the Veteran have also been obtained. The Veteran has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. In November 2007, September 2011, and August 2013 the Veteran was afforded VA examinations in conjunction with his increased evaluation claims. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2012); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). The examinations are adequate for the purposes of evaluating the Veteran's disability, as they involved a review of the Veteran's pertinent medical history as well as a clinical evaluation of the Veteran, and they provide an adequate discussion of relevant symptomatology. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Analysis I. Increased Ratings Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). VA is 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. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as in the present case, entitlement to compensation has already been established and an increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's anterior cruciate ligament insufficiency, right knee, status post reconstruction, plus peripheral medial meniscus tear with degenerative arthritis, has been assigned an evaluation of 20 percent disabling throughout the appeal period. The Veteran's status post partial lateral meniscectomy, left knee, with left anterior cruciate ligament tear with degenerative arthritis, has been assigned an evaluation of 10 percent throughout the appeal period. Both evaluations are pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2013), pertaining to knee, recurrent subluxation or lateral instability. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40. Diagnostic Codes relevant to knee disabilities include 5003, 5010, and 5256 through 5263. Under Diagnostic Codes 5003 and 5010, arthritis established by x-ray findings is rated on the basis of limitation of motion of the affected joints. When however, the limited motion of the specific joint or joints involved would be noncompensable under the appropriate diagnostic codes, a 10 percent rating is assigned for each involved major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. 38 C.F.R. § 4.71a. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Diagnostic Code 5256, which evaluates ankylosis of the knee, assigns a 30 percent rating for favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees. A 40 percent rating is assigned when there is ankylosis of the knee in flexion between 10 and 20 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5256. Diagnostic Code 5257 evaluates recurrent subluxation or lateral instability of a knee, and assigns a 10 percent disabling for a slight impairment, 20 percent disabling for a moderate impairment, and 30 percent disabling for a severe impairment. Diagnostic Code 5257 is not predicated on loss of range of motion. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). When semilunar cartilage is dislocated with frequent episodes of locking, pain and effusion into the joint a 20 percent rating is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5258. When semilunar cartilage has been removed, but remains symptomatic, a 10 percent rating is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Additionally, General Counsel Opinion 9-98 directs that with respect to Diagnostic Code 5259, limitation of motion is a relevant consideration and the provisions of 38 C.F.R. § 4.40 and 4.45 therefore must be considered. Under Diagnostic Code 5260 (limitation of flexion of the leg), a noncompensable rating is assigned when flexion is limited to 60 degrees; a 10 percent rating is assigned when flexion is limited to 45 degrees; a 20 percent rating is assigned when flexion is limited to 30 degrees; and a 30 percent rating is assigned when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261 (limitation of extension of the leg), a noncompensable rating is assigned when extension is limited to 5 degrees; a 10 percent rating is assigned when extension is limited to 10 degrees; a 20 percent rating is assigned when extension is limited to 15 degrees; a 30 percent rating is assigned when extension is limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is assigned when extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The Board notes that separate ratings under Diagnostic Code 5260 and Diagnostic Code 5261 may be assigned for disability of the same knee joint. See VAOPGCPREC 9-2004. Additionally, VAOPGCPREC 23-97 held that a claimant who has both arthritis and instability of the knee may receive two separate disability ratings under Diagnostic Codes 5003-5010 and Diagnostic Code 5257 (or under Diagnostic Codes 5258-9) without violating the prohibition of pyramiding of ratings. It was specified that, for a knee disorder already rated under Diagnostic Code 5257, a claimant would have additional disability justifying a separate rating if there is limitation of motion under Diagnostic Code 5260 or Diagnostic Code 5261. Turing to the record, a November 2007 VA examination indicates the Veteran cannot stand for more than 15 to 30 minutes and is unable to walk more than a few yards. The examiner reported no instability but did report pain, stiffness, and weakness for both knees. X-rays were taken of the knees and a diagnosis of degenerative arthritis was rendered as to both. Motion of the right leg was found as: active flexion 116 degrees with pain starting at 110 degrees, passive flexion 124 degrees with pain starting at 116. Upon repetitive use right leg flexion was limited to 88 degrees. In regards to extension: active extension 0 degrees with pain from 116 to 102 degrees, passive extension 0 degrees with pain at 130 degrees. Motion of the left leg was found as: active flexion 125 degrees with pain starting at 110 degrees, passive flexion 134 degrees with pain starting at 120. Upon repetitive use left leg flexion was limited to 90 degrees. In regards to extension: active extension 0 degrees with pain from 130 to 116 degrees, passive extension 0 degrees with pain 140 to 126 degrees. A September 2011 VA examination indicates the Veteran cannot stand for more than 10 to 15 minutes and is limited to walking no more than 500 yards at a time. The examination reports notes the Veteran uses a cane and gait is antalgic. The findings in the examination report include crepitus, tenderness, pain at rest, instability, weakness, and guarding of movement. Additional findings include episodes of dislocation or subluxation occurring weekly and episodes of locking occurring several times a week. The medial/lateral extent of instability of both knees is noted as moderate; however, medial/lateral collateral ligament stability in neutral position is normal and medial/lateral collateral ligament stability in 30 degrees flexion is normal. X-rays were taken of the knees and a diagnosis of degenerative joint disease was rendered as to both. Motion of the right leg was found as: flexion 120 degrees with objective evidence of pain with active motion, extension 0 degrees. Motion of the left leg was found as: flexion 110 with objective evidence of pain with active motion, extension 0 degrees. There was objective evidence of pain following repetitive motion; however, there was no additional limitation of motion upon three repetitions of range of motion. An August 2013 VA examination indicates the Veteran ambulates with two four prong canes and uses a wheelchair around his home. Additionally, the Veteran receives injections into his knees every eight weeks. Imaging studies of the knees showed degenerative or traumatic arthritis of both knees. Right and left knee instability was reported as normal. Motion of the right leg was found as: flexion 80 degrees with pain beginning at 0 degrees, extension 10 degrees with pain beginning at 10 degrees. Motion of the left leg was found as: flexion 75 degrees with pain beginning at 50 degrees, extension 10 degrees with pain beginning at 10 degrees. The Veteran was unable to perform repetitive-use testing because of intolerable knee pain. The examiner reported the Veteran had functional loss of both knees and lower legs that resulted in less movement that normal, weakened movement, excess fatigability, swelling, instability of station, and disturbance of locomotion. The examination also notes that the Veteran has scars that relate to his knee disabilities. Nevertheless, none of the scars are painful or unstable and their total area is not greater than 39 square centimeters. Increased Evaluation Based on Instability After careful review of the record, the Board finds that the evidence does not support an evaluation in excess of 20 percent for right knee instability; however, it does support an evaluation in excess of 10 percent for left knee instability. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. There is no competent evidence of record to indicate the Veteran's right knee disability more closely approximated "severe" instability at any point during the appeal period. Therefore, the Board finds that an evaluation in excess of 20 percent for instability of the right knee is not warranted at any point during Veteran's appeal. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. In regards to the left knee, the Board takes note of the fact that the September 2011 examiner described the stability in both of the Veteran's knees as "moderate." In light of this, the Board finds the Veteran is entitled to a 20 percent rating for his left knee disability. A rating in excess of 20 percent is not called for as there is no competent evidence of record to indicate the Veteran's left knee disability more closely approximated "severe" instability at any point during the appeal period. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. Entitlement to a Separate Evaluation Based on Limitation of Motion The Board finds that separate 10 percent evaluations are warranted for arthritis of both the right and left knees from the date of claim until August 2013. See 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003. As of the August 22, 2013, the Board finds that separate evaluations of 30 percent are warranted for ankylosis of both knees. See 38 C.F.R. § 4.71a, Diagnostic Code 5256. The Board notes that neither the November 2007 or September 2011 VA examination discussed above reveals flexion limited to 45 degrees or extension limited to 10 degrees. Thus, the Board finds that the Veteran is not entitled to a separate compensable evaluation for his right knee disability under the schedular criteria of Diagnostic Codes 5260 or 5261 prior to August 22, 2013. The evidence of record does, however, include x-rays indicating degenerative arthritis in both knees with painful motion. See November 2007 VA Examination, September 2011 VA Examination. In light of this evidence, the Board finds that the Veteran is entitled to a separate evaluations of 10 percent, but not greater, prior to August 22, 2013. See 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003. As of the August 22, 2013 VA examination there are objective indications that both the Veteran's right and left leg extension was limited to 10 degrees; however, this same examination indicates favorable ankylosis of both knees. As such, the Board finds that separate ratings of 30 percent are appropriate for both the Veteran's right and left knee ankylosis, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5256. Higher ratings are not called for as there is no indication of limitation of extension 30 degrees or more or ankylosis in flexion. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5261. Additional Considerations The Board has considered the applicability of additional diagnostic codes to the Veteran's service-connected right and left knee disabilities. However, no higher or separate evaluation is warranted under any of these diagnostic codes at any point during the appeal period. None of the Veteran's examinations, or any other competent evidence of record, revealed right or left leg flexion that was limited to 60 degrees or less. Therefore, an increased evaluation is not warranted under the schedular criteria of Diagnostic Codes 5260 at any point during the appeal period. Diagnostic Codes 5258 and 5259 do not apply. In this regard, the September 2011 examination does indicate episodes of locking several times a week. However, the examinations that have been conducted during the course of the Veteran's appeal have not shown either dislocated or removed semilunar cartilage. In addition, as the evidence of record fails to demonstrate impairment of the tibia or fibula or genu recurvatum the Veteran is not entitled to a separate or higher rating under Diagnostic Codes 5262 or 5263. Finally, the scars the Veteran has that relate to his knee disabilities are not painful or unstable and do not cover a total area of at least 39 square centimeters. As such, a compensable evaluation for scars is not called for under 38 C.F.R. § 4.118, Diagnostice Code 7801, 7802, 7804, or 7805. The Board acknowledges the Veteran's contentions that his service-connected disabilities warrant evaluations greater than the ones assigned herein. However, in determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran's impairment. Furthermore, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria contained in 38 C.F.R. Part 4. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); see also 38 C.F.R. §§ 3.159(a)(1), (2) (2013). In sum, an evaluation in excess of 20 percent for the right knee is not called for in this case. During the appeals period, under Diagnostic Code 5257, the Veteran's right knee does not approximate "severe" lateral instability. An evaluation of 20 percent, but not greater, is warranted for Veteran's left knee disability because of "moderate" instability. Separate evaluations of 10 percent for arthritis of each knee, but not greater, have been granted, prior to August 22, 2013, in light of the fact that Veteran's arthritis causes painful motion. See 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003. As of August 22, 2013, the Veteran's separate evaluations for arthritis are increased to 30 percent each in recognition of the Veteran's favorable ankylosis. See 38 C.F.R. § 4.71a, Diagnostic Code 5256. Accordingly, the Board finds a preponderance of the evidence is against the assignment of an evaluation in excess of 20 percent for right knee instability. As such, the benefit-of-the-doubt rule does not apply to this aspect of the claim, and the claim to this extent is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). However, upon review of the totality of the evidence and resolving any doubt in favor of the Veteran, the Board concludes that an evaluation of 20 percent, but not greater, for the Veteran's left knee disability for "moderate" instability is warranted. Additionally, prior to August 22, 2013, separate evaluations of 10 percent, but not greater, are warranted for arthritis with painful motion. See 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003. As of August 22, 2013, these separate ratings are increased to 30 percent, but not greater, in light of Veteran's favorable ankylosis. II. Extraschedular Consideration The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. 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). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2013). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must 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 claimant's level of disability and symptomatology and is found inadequate, the Board must 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, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's right and left knee disabilities, with the established criteria found in the rating schedule for these disabilities shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology. Specifically, the Veteran's instability, pain, and limited range of motion are contemplated in the rating criteria. As the first prong of Thun has not been satisfied, the Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. III. TDIU Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to her age or to the impairment caused by nonservice-connected disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2012). In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The record must reflect that circumstances, apart from non-service-connected conditions, place the claimant in a different position than other veterans having the same compensation rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the Veteran, in light of her service-connected disabilities, is capable of performing the physical and mental acts required by employment, not whether she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The law provides that a total disability rating may be assigned where the schedular rating is less than total, when the person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or 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. See 38 C.F.R. § 4.16(a). For the purpose of one 60 percent disability or one 40 percent disability in combination, disabilities affecting the single body system will be considered as one disability. See 38 C.F.R. § 4.16(a)(3) (2013). As of August 22, 1013, the Veteran is service-connected for favorable ankylosis of the right knee, evaluated as 30 percent disabling; favorable ankylosis of the left knee, evaluated as 30 percent disabling; anterior cruciate ligament insufficiency, right knee, status post reconstruction, plus peripheral medial meniscus tear with degenerative arthritis, evaluated as 20 percent disabling; and status post partial lateral meniscectomy, left knee, with left anterior cruciate ligament tear with degenerative arthritis, evaluated as 20 percent disabling. His overall disability evaluation is 70 percent. All of the Veteran's compensable disabilities affect one body system, i.e. orthopedic, and as such will be considered one disability for the 60 percent requirement of 38 C.F.R. § 4.16(a). The Veteran is eligible to receive TDIU benefits. See 38 C.F.R. § 4.16(a). For reasons stated immediately below, the Board finds that the evidence of record demonstrates that the Veteran's service-connected disabilities render him unable to secure and follow a substantially gainful occupation. Throughout the record the Veteran has maintained that his service-connected disabilities render him unemployable. He indicated that he resigned from his last employment because of his service connected knee disabilities. See March 2010, May 2010, September 2010 Veteran's Statements. Documentation from this employment indicates that health was listed as one of the reasons for the Veteran's resignation. January 2003 Notification of Personnel Action. Furthermore, both the November 2007 and September 2011VA examinations indicate that the Veteran's service-connected disabilities have "significant effects" on occupation. Significantly, the August 2013 VA examiner indicated that the Veteran's knee disabilities impact his ability to work, noting the Veteran would not be able to perform work that requires ambulation. The Board notes that the August 2013 VA examination report does not indicate the Veteran is precluded from all employment, but rather notes the Veteran would not be able to perform work that requires ambulation. However, a TDIU rating is warranted where the Veteran's service-connected disabilities prevent the Veteran from following a substantially gainful occupation. The Veteran has indicated that he has a college degree. September 2010 Veteran's Statement. Nevertheless, in the Board's view, it is implausible that substantially gainful employment exists that would require no ambulation even for someone with the Veteran's level of education. As such, the Board concludes that an award of TDIU is warranted, under 38 C.F.R. § 4.16(a). The benefit sought on appeal is accordingly granted. ORDER A rating in excess of 20 percent for anterior cruciate ligament insufficiency, right knee, status post reconstruction, plus peripheral medial meniscus tear with degenerative arthritis, is denied. A separate evaluation of 10 percent, but not greater, for arthritis of the right knee is granted, prior to August 22, 2013; this separate evaluation is increased to 30 percent, but not greater, for favorable ankylosis as of August 22, 2013, subject to laws and regulations governing the payment of monetary benefits. A rating of 20 percent for status post partial lateral meniscectomy, left knee, with left anterior cruciate ligament tear with degenerative arthritis is granted, subject to laws and regulations governing the payment of monetary benefits. A separate evaluation of 10 percent, but not greater, for arthritis of the left knee is granted, prior to August 22, 2013; this separate evaluation is increased to 30 percent, but not greater, for favorable ankylosis as of August 22, 2013, subject to laws and regulations governing the payment of monetary benefits. A TDIU evaluation is granted as of August 22, 2013, , subject to laws and regulations governing the payment of monetary benefits. ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs