Citation Nr: 1550797 Decision Date: 12/03/15 Archive Date: 12/10/15 DOCKET NO. 04-30 737 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for residuals of a stress fracture of the left tibia with posttraumatic chondromalacia of the left patella and status post arthroscopic surgery (excluding any periods of temporary total disability due to surgery and convalescence from March 29, 2006 to April 30, 2006 and from July 30, 2009 to August 31, 2009). 2. Entitlement to an initial rating in excess of 10 percent for left knee degenerative joint disease for the period from July 6, 2010 forward. 3. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD A. C. Mackenzie, Senior Counsel INTRODUCTION The Veteran served on active duty from January 1967 to December 1968. These matters return before the Board of Veterans' Appeals (Board) from an April 2013 Memorandum Decision by the United States Court of Appeals for Veterans Claims (Court), which vacated a Board decision addressing the same issues, and a November 2013 Board remand. The relatively complex procedural history of this case will be described in tandem with the evidence below. FINDINGS OF FACT 1. While the Veteran's service-connected residuals of a stress fracture of the left tibia with posttraumatic chondromalacia of the left patella and status post arthroscopic surgery have required several surgeries during the pendency of this appeal, symptoms related to the initial injury (as opposed to being related to the service-connected degenerative joint disease) have been minimal and commensurate to no more than moderate knee disability. 2. For the period from July 6, 2010 until March 5, 2015, the Veteran's degenerative joint disease of the left knee was manifested by full extension, slightly limited flexion, and no evidence of painful motion at or below 45 degrees. 3. Beginning on March 5, 2015, the Veteran's degenerative joint disease of the left knee has been manifested by a substantial increase in painful motion, with pain now manifested at 30 degrees of flexion. 4. The Veteran's service-connected disabilities include residuals of a stress fracture of the left tibia with posttraumatic chondromalacia of the left patella and status post arthroscopic surgery and degenerative joint disease of the left knee (both rated as 20 percent disabling); tinea versicolor, tinnitus, and chronic right knee strain (all rated as 10 percent disabling); and hearing loss and a scar of the left knee (both rated as zero percent disabling); the combined evaluation is 60 percent. 5. The Veteran's service-connected disabilities, in and of themselves, do not preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for residuals of a stress fracture of the left tibia with posttraumatic chondromalacia of the left patella and status post arthroscopic surgery have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.71a, Diagnostic Code 5262 (2015). 2. The criteria for an initial evaluation in excess of 10 percent for degenerative joint disease of the left knee for the period from July 6, 2010 until March 5, 2015 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5260, 5261 (2015). 3. The criteria for an evaluation of 20 percent for degenerative joint disease of the left knee for the period beginning March 5, 2015 have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5260, 5261 (2015). 4. The criteria for entitlement to TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.16, 4.19, 4.25 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1) Duties to notify and assist VA laws and regulations spell out VA's duties with regard to notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper notice must inform the claimant of any information and evidence not in the record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). These notice requirements apply to all elements of a claim, including the degree and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In this case, the Veteran was advised in August 2006, prior to the initial unfavorable rating decision in January 2007, of the evidence and information necessary to substantiate his claims. He was also advised of the evidence and information necessary to establish a disability rating and an effective date, in accordance with Dingess/Hartman. In addition, although no longer strictly required, the Veteran was advised of the relevant diagnostic codes and potential "daily life" evidence in July 2008. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (vacating Vazquez-Flores v. Peake, 22 Vet. App. 37, 43 (2008), to the extent that it requires more than "generic notice"). This case was subsequently readjudicated in an April 2015 Supplemental Statement of the Case. See Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). With regard to VA's duty to assist, VA and private treatment records, as well as records pertaining to the Veteran's disability benefits from the Social Security Administration (SSA), have been obtained and considered. The Board notes that the agency of original jurisdiction requested the Veteran to complete an authorization form for his workers compensation records in December 2008. Although no such authorization was provided, records obtained from the SSA include records pertaining to the Veteran's workers compensation claim. There is no indication that any pertinent, identified, and available medical records remain outstanding. Further, the Veteran has not argued that any records remain outstanding that are necessary for a fair adjudication. Additionally, the Veteran was afforded multiple examinations in conjunction with his appeal, including June 2014 and March 2015 VA examinations. These examinations addressed the key questions set forth in the Board's November 2013 remand. Given this, and the fact that updated VA treatment records have been obtained, there has been full compliance with that remand. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Accordingly, the Board finds that VA's duties have been complied with, and the Board may turn to the merits of the claims at hand. 2) Increased rating claims A) Applicable laws and regulations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. See 38 C.F.R. § 4.7. When evaluating musculoskeletal disabilities based on limitation of motion, a higher rating must be considered where the evidence demonstrates additional functional loss due to pain, pursuant to 38 C.F.R. §§ 4.40 and 4.45. The diagnostic codes pertaining to range of motion do not subsume sections 4.40 and 4.45, and the rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). However, if the maximum available rating has been assigned under the applicable diagnostic code, consideration of these provisions is not necessary. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997). B) Factual and procedural background In a February 1997 rating decision, the RO granted service connection for residuals of a stress fracture of the left tibia and assigned a zero percent evaluation as of October 1996. This grant was predicated on evidence of a stress fracture of the left tibia in 1967, during service, and the results of a February 1997 VA examination. In a January 2005 rating decision, the RO assigned a temporary 100 percent rating from July 29, 2004 based upon surgical or other treatment necessitating convalescence, with an evaluation of 10 percent assigned from September 1, 2004. In reaching this determination, the RO noted left knee surgery of July 29, 2004 and considered the results of a January 2005 VA examination, which revealed symptoms including full active and passive range of motion of the left knee, marked facial grimacing and wincing and grabbing of the examiner's hand from 120 to 140 degrees of flexion, mild patellofemoral crepitus with flexion and extension of the left knee, a 5 degrees loss of flexion and 0 degree loss of extension due to pain or flare-up of pain in the weight-bearing phase, and an overall 30 percent loss of functional capacity due to a flare-up of pain with repetitive weight bearing and bending activities. The VA examiner also noted that the Veteran was markedly impaired from this condition in regard to his current occupation as a flooring installer because of the kneeling activities required. The Veteran began treatment with by Dr. M.M. in September 2005, following a left knee injury incurred as a result of lifting a washing machine and two toilets. An examination that month showed range of motion from zero to 130 degrees. In November 2005, he had left knee motion from zero to 130 degrees. There was positive McMurray test and negative Lachman test. He walked with a limp and was unable to squat due to pain. Dr. M. indicated that the Veteran would be unable to return to his present employment of laying floors and tiles, as well as any other manual labor involving excessive kneeling, squatting, ascending/descending stairs, and carrying and walking with objects greater than 10-15 yards. Follow-up treatment revealed motion from zero to 140 degrees in February 2006. In an October 2005 record, Dr. R.V. noted the Veteran's reports of persistent pain in the anterolateral and anteromedial left knee, and that he had been unable to work since October 12, 2005. Range of motion testing revealed 0 to 135 degrees on the left. In a follow-up record from the same month, Dr. V. noted that the Veteran had a recent left knee corticosteroid injection, which reportedly only helped for a couple of hours. Complaints focused on pain, and range of motion testing revealed 0 to 145 degrees of motion on the left, with no effusion or instability. Having the Veteran squat caused a tremendous amount of anterior knee pain. Dr. V. described this as "a serious problem with his knee" and recommended antiinflammatory medications, another round of physical therapy, and possible visco supplementation, with knee replacement surgery possible down the road. During his February 2006 VA orthopedic examination, the Veteran reported constant pain on a level of 6 (on a scale from 1 to 10) that worsened (to 9 or 10) for a few hours on a daily basis with kneeling or squatting. Other complaints included weakness, stiffness, heat, instability, fatigue, and lack of endurance to the left knee along with his chronic pain. He reported being off work since September 7, 2005. The examination revealed a mild-to-moderate antalgic gait, without use of assistive devices. There was no laxity, but there was retropatellar pain to the left knee when the left knee patella was pressed gently. The Veteran had extension to zero degrees and flexion to 130 degrees with pain and grimacing through flexion from 0-130 degrees. The examiner determined that the Veteran lost 10 degrees in flexion of the left knee primarily due to pain and to a lesser extent due to weakness, fatigability and lack of endurance. On March 29, 2006, the Veteran underwent arthroscopic examination and debridement of the patellofemoral joint and lateral retinacular release with Dr. V. Subsequently, in January 2007, the RO assigned a temporary total rating for surgical or other treatment necessitating convalescence for the period beginning March 29, 2006, with the 10 percent evaluation back in effect as of May 1, 2006. An October 2006 evaluation from Dr. V (contained in the Veteran's SSA records) indicates left knee range of motion from zero to 135 degrees. The assessment was that the Veteran was "permanent and stationary ratable," with objective factors of disability including decreased muscle tone, thigh circumference loss, and a five degree loss of range of motion. A sedentary job was recommended, as the Veteran was unable to do squatting and kneeling. A private examination of the Veteran's left knee was conducted by Dr. M.Z. in June 2007. At that time, the Veteran reported that his left knee had given out on him and caused him to fall. Range of motion testing revealed extension limited to 15 degrees, and flexion limited to 88 degrees, described as a "20%" decrease post injury/surgery. Squatting was limited to 20% of normal due to acute left knee pain. No knee joint pain or crepitus was elicited with range of motion testing, and no effusion was present. Dr. Z. noted that the left knee joint remained symptomatic despite the arthroscopy and Synvisc injections, and he opined that the disability precluded walking on rough or uneven surfaces, more than occasional climbing on stairs or ladders, or more than occasional squatting or kneeling. It was described as a "permanent partial disability." The Veteran underwent a further VA orthopedic examination in September 2007. In addition to pain, his complaints included fatigability and lack of endurance. He was using a cane, approximately "monthly," but did not use a brace. Upon examination, the knee flexed to 120 degrees, at which point he had pain that was repeated three times for a DeLuca factor of 5 degrees, function limited by pain, lack of endurance without fatigability, and loss of coordination. Extension of the left knee was to zero degrees with no pain. Drawer test and Lachman test were negative bilaterally. There was no ligament laxity to valgus and varus stress of the knees. McMurray test was positive on the left side medial aspect. The diagnosis was bilateral knee strain, with unremarkable bilateral knee films with no arthritis. Subsequently, in a September 2008 rating decision, the RO increased the evaluation for the left tibia fracture disability to 20 percent, effective May 1, 2006. The claims file contains records from Dr. E.W., who performed an arthrotomy and chondroplasty, patella, of the left knee in July 2009, following complaints of constant aching and an MRI that revealed complete articular cartilage loss of the patellofemoral joint. The examiner confirmed "joint swelling, effusion, tenderness, or laxity" of the left knee but did not provide further specifics. There was active range of motion of the left knee from -20 to 120 degrees, with objective evidence of pain on active motion and pain on motion after at least three repetitions of range of motion. The RO, in a September 2010 rating decision, granted a temporary 100 percent evaluation based upon surgical or other treatment necessitating convalescence for the period from July 30 until September 1 of 2009. During his October 2009 hearing, the Veteran referenced his recent left knee surgery and reported continued problems with stability and locking in the knee. A February 2010 VA treatment record reflects that the Veteran reported that his left knee "gives out sometimes." The only relevant examination findings were that the Veteran appeared to be quite uncomfortable using a cane to ambulate with a limp, and his left leg had decreased in girth. An assessment of left knee instability, most likely related to the tremendous weakness of the left knee, was noted, although this does not appear to have been confirmed by any objective testing. During a July 2010 VA general medical examination, the Veteran reported that he had his third left knee arthroscopy in July 2009 and that it did not improve his situation. He was noted to be using a cane and to have symptoms of a feeling of heaviness, fatigability, and aching. The examiner rendered a diagnosis of degenerative joint disease of the left knee and noted that the Veteran should be able to do light work which does not involve significant walking, and it appeared that he could do his former light duties as a service station attendant or equivalent work. The rationale for this was that x-rays revealed a relatively mild disease, and, while he would not be able to return to laying floors, he had a degree in business. Thus it appeared more likely than not he could be vocationally trained in some light duty business endeavors and brush up on his computer skills. Subsequently, in a July 2011 rating decision, the Appeals Management Center (AMC) in Washington, DC granted a separate 10 percent evaluation for left knee degenerative joint disease as of July 6, 2010. A VA treatment record from December 2011 indicates that the Veteran had mild tenderness over the left medial patellofemoral aspect and marked and well-localized tenderness over the medial patellar fact, "which reproduces his chief complaint of pain." There was also some tightness of the lateral patellofemoral ligament. The pertinent assessment was patellofemoral arthrosis of the left knee, status post three previous surgeries. In a November 2011 decision, the Board granted a 20 percent evaluation for the left tibia fracture disability for the period prior to May 1, 2006 but otherwise denied the Veteran's claims. To the extent that the claims had been denied, this decision was vacated in an April 2013 memorandum decision of the United States Court of Appeals for Veterans Claims (Court), and the Board remanded the case in November 2013 so as to obtain updated VA treatment records and a new VA examination. The claims file contains an April 2013 VA knee and lower leg conditions examination report. At that time, the Veteran reported no flare-ups impacting the function of the knee and lower leg. He did note that the left knee buckled occasionally without falls, swelled, and had constant pain localized to inferior patella. There was left knee motion from zero to 110 degrees, with no objective evidence of painful motion. After repetitive use, there was less movement than normal and pain on movement. There was no tenderness of pain to palpation for the joint line or soft tissues of either knee. Stability testing was within normal limits. Occasional use of a cane was described. The examiner noted that left knee pain and instability prevented working as a carpet layer or doing heavy lifting or kneeling. The Veteran underwent the first of two post-remand VA examinations in June 2014, during which he reported falling and being in constant pain. He reported flare-ups that made it difficult to walk. Range of motion testing revealed motion from zero to 140 degrees, with objective evidence of painful motion at 110 degrees. After repetitive use, the Veteran was noted to have less movement than normal, excess fatigability, and pain on movement. Functional loss and impairment were also noted, as was tenderness/pain to palpation for the joint line on the soft tissues of either knee. Stability testing was normal. There was no evidence or history of recurrent patellar subluxation/dislocation. The stress fracture of the lower leg itself was noted to be asymptomatic. A brace was used for stability as the knee "gives out," a cane was used for walking outdoors, and a walker was used indoors. In terms of impairment of the ability to work, the examiner noted that the Veteran was unable to stand on the knee joint and was in constant pain from his knee and back condition. The examiner did note that the Veteran was not seen while the joint was in flare-up, and she could not estimate the further limitation of motion during flare-ups or daily use because there was insufficient medical evidence to make this assessment. A further VA knee and lower leg examination was conducted in March 2015, and the examiner reviewed the Veteran's claims file. During the examination, he reported flare-ups of left knee pain several times a day lasting up to several hours, requiring him to lie down and stretch the knee. He also reported functional impairment and having to give up squatting, several outdoor activities, and "certain sexual positions" as a consequence. Range of motion of the left knee was from zero to 110 degrees, with pain "noted on exam at 30 flexion and causes functional loss." There was tenderness to palpation superomedially and medially to the left knee. The Veteran was able to perform repetitive use testing with at least three repetitions. As to whether pain, weakness, fatigability, or incoordination were present, the examiner was unable to say without mere speculation because the Veteran was not examined after repeated use over a period of time. The examiner also noted that the Veteran was not being examined during a flare-up of pain. Atrophy of disuse of the left knee, with a three centimeter smaller left quad muscle, was also noted. There was no ankylosis, and stability testing was entirely within normal limits. The Veteran's prior stress fracture of the lower leg itself had no current symptoms. No semilunar cartilage condition was identified. Constant use of a cane and occasional use of both a wheelchair and a walker were noted. X-rays (from June 2014) were noted to show minimal to mild tricompartmental osteoarthritis bilaterally. As to employment, the examiner noted that the Veteran could not do any job that requires prolonged standing, squatting, or kneeling. He could work a sedentary job as long as he was allowed to get up and stretch out his knees as needed. The Veteran did express concern that he would not be hired because of the potential for an injury on account of his left knee locking in extension occasionally. Overall, the examiner determined that the Veteran's service-connected disabilities alone were not of sufficient severity to produce unemployability in a sedentary job wherein he could sit, stand, and/or get up and walk around to comfort. C) Analysis i) Residuals of a stress fracture of the left tibia with posttraumatic chondromalacia of the left patella and status post arthroscopic surgery The Veteran's service-connected left tibia fracture disability has evaluated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5262. Under this section, a 20 percent evaluation is assigned for malunion of the tibia and fibula, with moderate knee or ankle disability. A 30 percent evaluation is assigned for malunion of the tibia and fibula, with marked knee or ankle disability. A 40 percent evaluation is assigned for nonunion of the tibia and fibula, with loose motion requiring a brace. In the case at hand, the Veteran's initial fracture of the left tibia, in and of itself, has been shown to be essentially asymptomatic, as indicated in his most recent VA examination reports. He has reported use of a knee brace on multiple occasions, but this has been predicated on subjective reports of the knee giving way, and there is no suggestion whatsoever of malunion or nonunion of the tibia or fibula. As described in more detail below, most of his symptoms relate to pain on motion and functional loss and have been considered in the evaluation of his service-connected degenerative joint disease of the left knee. The Board is also aware of the Veteran's multiple left knee surgeries, which have been contemplated by temporary total ratings under 38 C.F.R. § 4.30 from March 29, 2006 to April 30, 2006 and from July 30, 2009 to August 31, 2009. Overall, the findings from the pendency of this appeal indicate a significant disability picture taking into account the degenerative joint disease, but the initially service-connected left tibia injury, in and of itself, is not manifested by more than moderate symptoms. For that reason, the evidence does not support a schedular evaluation in excess of 20 percent, and the claim for that benefit must be denied. 38 C.F.R. § 4.7. ii) Left knee degenerative joint disease Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (Diagnostic Code 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 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined and 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. Diagnostic Code 5003 also allows for evaluation in cases where there is an absence of limitation of motion. With x-ray evidence of involvement of two or more major joins or two or more minor joint groups, a 10 percent evaluation is warranted. With x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations, a 20 percent evaluation is assigned. As to limitation of motion codes, Diagnostic Code 5260 concerns limitation of flexion of the leg. Flexion limited to 45 degrees warrants a 10 percent evaluation. In cases of flexion limited to 30 degrees, a 20 percent evaluation is in order. A 30 percent evaluation is warranted for flexion limited to 15 degrees. Under Diagnostic Code 5261, a 10 percent evaluation is warranted for extension of the leg limited to 10 degrees. A 20 percent evaluation is in order for extension limited to 15 degrees. Extension limited to 20 degrees warrants a 30 percent evaluation. A 40 percent evaluation is assigned for extension limited to 30 degrees, whereas extension limited to 45 degrees warrants a 50 percent evaluation. In the case at hand, the Veteran has been assigned a 10 percent evaluation for degenerative joint disease of the left knee for the entire period beginning July 6, 2010. During this period, the Veteran has consistently demonstrated full extension and flexion to at least 110 degrees. The Board is aware that, prior to this period, the June 2007 report from Dr. Z revealed extension limited to 15 degrees and flexion limited to 88 degrees. While this sole finding raises questions about limited motion, an examination report soon thereafter (September 2007) showed motion from zero to 120 degrees, and all subsequent range of motion findings reflect full extension and flexion to at least 110 degrees. The Board thus does not find that this one report, coming before the effective date of service connection for degenerative joint disease of the right knee, supports an evaluation in excess of 10 percent. The question thus becomes whether the factors contemplated by 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown warrant a higher evaluation. The Board finds that, for the period from July 6, 2010 until March 5, 2015, they do not. The Veteran's April 2013 VA examination revealed left knee motion from zero to 110 degrees, with no objective evidence of painful motion. The June 2014 VA examination revealed motion from zero to 140 degrees, with objective evidence of painful motion at 115 degrees and, after repetitive use, less movement than normal, excess fatigability, pain on movement, and functional loss and impairment. These findings reflect a disability picture that, during that time period, was manifested by greater movement than a compensable evaluation under Diagnostic Codes 5260 and 5261 would permit, but with significant DeLuca symptoms fully warranting the assigned 10 percent evaluation but not supporting an even higher evaluation given the extent of pain-free motion. The Veteran's disability picture, however, was shown to have changed significantly during his March 5, 2015 VA examination. He continued to have full extension, but with flexion limited to 110 degrees and pain noted at 30 degrees and causing functional loss. This is a significant worsening, as compared to pain noted at 115 degrees in June 2014. Given this and the finding of functional loss, the Board must conclude in light of DeLuca and Diagnostic Code 5260 that a 20 percent evaluation is warranted on account of pain-free flexion limited to only 30 degrees. This determination represents a partial grant and staged rating in this case. Several other considerations remain. First, the Board would point out that at no time during this appeal has there been any finding of ankylosis of the left knee (Diagnostic Code 5256) or dislocated semilunar cartilage, with frequent episodes of "locking," pain, and effusion into the joint (Diagnostic Code 5258). Those code sections therefore provide no basis for a higher rating. Second, the Board has considered whether the Veteran has at least slight recurrent subluxation or lateral instability of the left knee, as would warrant a 10 percent evaluation under Diagnostic Code 5257. Separate evaluations may be assigned for instability and arthritis. See VAOPGCPREC 23-97 (July 1, 1997); see also VAOPGCPREC 9-98 (August 14, 1998). The evidence of record, however, does not support a finding of slight recurrent subluxation or lateral instability of the left knee. The Board is aware of the February 2010 VA record containing an assessment of left knee instability, most likely related to the tremendous weakness of the left knee. It does not appear from this report, however, that this instability was confirmed by objective testing, as opposed to the Veteran's own subjective complaints, and all subsequent VA examination reports containing stability testing make it demonstrably clear that there is no evidence whatsoever of any degree of recurrent subluxation or lateral instability. The Board thus find that there is no basis for a separate compensable evaluation under Diagnostic Code 5257. Third, as noted above, the Veteran's motion limitations, including on the basis of pain, have consistently involved flexion but not extension. On the contrary, the Veteran's left knee extension has been consistently shown to be within normal limits. There is accordingly no basis for separate evaluations on account of limitation of both extension and flexion. See VAOPGCPREC 9-2004 (Sept. 17, 2004). Overall, the Board finds that the results from the March 5, 2015 VA examination warrant a staged rating, with the currently assigned initial 10 percent rating as of July 6, 2010 maintained until March 5, 2015, and a 20 percent rating assigned as of that date. This represents a partial grant of this appeal. 38 C.F.R. § 4.7. D) Extra-schedular considerations The Board has also considered whether this case should be referred for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1). An extra-schedular rating is warranted if a case presents such an exceptional or unusual disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization, that it would be impracticable to apply the schedular standards. Analysis under this provision involves a three-step inquiry, and extra-schedular referral is necessary only if analysis under the first two steps reveals that the rating schedule is inadequate to evaluate the claimant's disability picture and that such picture exhibits such related factors as marked interference with employment or frequent periods of hospitalization. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). Here, the manifestations of the Veteran's residuals of stress fracture of the left tibia with posttraumatic chondromalacia of the left patella and status post arthroscopic surgery, and left knee degenerative joint disease, as summarized above, are fully contemplated by the schedular rating criteria. Pain is contemplated by the currently assigned ratings, and has been duly considered in the staged increase of the left knee degenerative joint disease rating. See DeLuca v. Brown, 8 Vet. App. at 206. As such, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and the rating schedule is adequate to evaluate his disability picture. Therefore, it is unnecessary to discuss the second prong, i.e., whether there are related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, referral for consideration of an extra-schedular rating under 38 C.F.R. § 3.321(b)(1) is not necessary. Finally, under Johnson v. McDonald, 762 F.3d 1362 (2014), a veteran may be awarded an extra-schedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. Notably, the Veteran is also service connected for tinea versicolor, tinnitus, chronic right knee strain, hearing loss, and a left knee scar. Neither the Veteran nor his representative has indicated any specific service-connected disabilities which are not captured by the schedular evaluations of the Veteran's individual service-connected conditions. The Board thus finds no basis for further action under 38 C.F.R. § 3.321(b)(1) via Johnson. 3) TDIU Under VA laws and regulations, a total disability rating based on individual unemployability may be assigned upon a showing that a veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his or her service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience, but age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). A total disability rating may be assigned where the combined rating for the veteran's service-connected disabilities is less than total if the disabled veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Alternatively, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards of 38 C.F.R. § 4.16(a). See 38 C.F.R. § 4.16(b). In this case, the Veteran's service-connected disabilities include residuals of a stress fracture of the left tibia with posttraumatic chondromalacia of the left patella and status post arthroscopic surgery and degenerative joint disease of the left knee (both rated as 20 percent disabling); tinea versicolor, tinnitus, and chronic right knee strain (all rated as 10 percent disabling); and hearing loss and a scar of the left knee (both rated as zero percent disabling). The combined evaluation is 60 percent, taking into account the 38 C.F.R. § 4.26 "bilateral factor" for the knee disabilities. This evaluation does not meet the initial criteria for schedular consideration for the grant of TDIU under 38 C.F.R. § 4.16(a), and the question thus becomes whether there exists an extra-schedular basis for the grant of entitlement to TDIU. In this regard, the Board has considered the Veteran's educational and employment background. In his August 2006 application, he reported that he worked in flooring installation, last worked in September 2005, and had two years of college. The Board has reviewed the evidence of record in this case but finds that this evidence does not support the Veteran's contention that his service-connected disabilities, in and of themselves, are of such severity as to preclude his participation in all forms of substantially gainful employment. The Board is aware that the Veteran has been in receipt of Social Security disability benefits and workers compensation, but the evidence of record addressing the service-connected disabilities specifically has consistently shown that the service-connected disabilities, in and of themselves, would preclude the Veteran's previous employment but would more likely than not allow for a more sedentary form of employment. Specifically, the March 2015 VA examiner, who reviewed the Veteran's claims file, rendered an opinion that the Veteran's service-connected disabilities alone were not of sufficient severity to produce unemployability in a sedentary job wherein he could sit, stand, and/or get up and walk around to comfort. The Veteran has presented no medical opinions contradicting this examination report. The Board is aware of the Veteran's difficulties in finding employment. That having been said, the Veteran, as a layperson, is unable to provide competent testimony as to matters which require medical expertise, such as the extent to which specific disabilities impair employability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additionally, the fact that a veteran is unemployed or has difficulty obtaining employment is insufficient, in and of itself, to establish unemployability. The relevant 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). Overall, the Board concludes that the preponderance of the evidence is against the Veteran's claim that his service-connected disabilities render him unable to obtain or retain substantially gainful employment. Accordingly, the preponderance of the evidence is against his claim of entitlement to TDIU, and that claim must be denied. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the claimant when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. (CONTINUED ON NEXT PAGE) That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). The Board would point out, however, that the Veteran is free to reopen his claim at any time. ORDER Entitlement to an evaluation in excess of 20 percent for residuals of a stress fracture of the left tibia with posttraumatic chondromalacia of the left patella and status post arthroscopic surgery (excluding any periods of temporary total disability due to surgery and convalescence from March 29, 2006 to April 30, 2006 and from July 30, 2009 to August 31, 2009) is denied. Entitlement to an initial evaluation in excess of 10 percent for degenerative joint disease of the left knee for the period from July 6, 2010 until March 5, 2015 is denied. Entitlement to an evaluation of 20 percent for degenerative joint disease of the left knee for the period beginning March 5, 2015 is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to TDIU is denied. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs