Citation Nr: 18160064 Decision Date: 12/21/18 Archive Date: 12/20/18 DOCKET NO. 16-61 207 DATE: December 21, 2018 ORDER Entitlement to service connection for left wrist condition is dismissed. Entitlement to service connection for hypertension is dismissed. Entitlement to service connection for nerve condition of the left upper extremity is dismissed. Entitlement to service connection for nerve condition of the right upper extremity is dismissed. Entitlement to service connection for nerve condition of the left lower extremity is dismissed. Entitlement to service connection for nerve condition of the right lower extremity is dismissed. Entitlement to service connection for right shoulder condition is dismissed. Entitlement to an increased rating for right volar wrist mass is dismissed. Entitlement to an increased rating for gastroesophageal reflux disease is dismissed. Entitlement to an increased rating for left shin splint is dismissed. Entitlement to an increased rating for right shin splint is dismissed. Entitlement to an initial rating in excess of 30 percent for migraines is denied. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a compensable rating for left ankle condition is denied. Entitlement to a compensable rating for right ankle condition is denied. Entitlement to a compensable rating for pruritic eczema is denied. Entitlement to total disability based on individual unemployability (TDIU) is denied. REMANDED Entitlement to service connection for left knee condition is remanded. Entitlement to service connection for right knee condition is remanded. FINDINGS OF FACT 1. Per VA Form 9 dated December 5, 2016, prior to the promulgation of a decision in the appeal, the Veteran requested a withdrawal of his appeal for the following claims: increased rating for right and left shin splint; right shoulder; gastroesophageal reflux disease; and right volar wrist mass; service connection for left wrist; hypertension; nerve condition of the left and right lower extremity; and nerve condition of the left and right upper extremity. 2. Throughout the appeal period, the Veteran’s migraines did not result in very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. 3. Throughout the period on appeal, the Veteran’s PTSD has been manifested by no more than occupational and social impairment due to mild and transient symptoms, such as chronic sleep impairment, depressed mood, and anxiety. 4. Throughout the period on appeal, the Veteran’s left ankle condition has not resulted in limitation of motion. 5. Throughout the period on appeal, the Veteran’s right ankle condition has not resulted in limitation of motion. 6. The Veteran’s pruritic eczema does not affect at least five percent of his total body, or exposed areas, or require intermittent systemic therapy or other immunosuppressive drugs. 7. The Veteran’s service connected disability do not render him unable to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for an initial rating in excess of 30 percent for migraines have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 CFR §§ 3.12, 4.1-4.14, 4.125a Diagnostic Code (DC) 8100 (2017). 3. The criteria for an initial rating in excess of 30 percent for PTSD have not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130; DC 9411 (2017). 4. The criteria for a compensable rating for left ankle condition have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, DC 5271 (2017). 5. The criteria for a compensable rating for right ankle condition have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, DC 5271 (2017). 6. The criteria for a compensable rating for pruritic eczema have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.118, DC 7806 (2017). 7. The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1992 to March 2001 and May 2001 to October 2012. In the case of Rice v. Shinseki, 22 Vet. App. 447, 455 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is part and parcel of an increased rating claim when such claim is raised by the record. Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran has withdrawn his appeal for the following claims: increased rating for right and left shin splint; right shoulder; gastroesophageal reflux disease, and right volar wrist mass; service connection for left wrist, hypertension, nerve condition of the left and right lower extremity; and nerve condition of the left and right upper extremity. Accordingly, the Board does not have jurisdiction and the above-mentioned appeals are dismissed. Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a “staged” rating is required. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The Court since has extended this practice even to established ratings, not just initial ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). 1. Migraines Migraines are evaluated under 38 C.F.R. § 4.124a DC 8100. Under DC 8100, a 30 percent rating is warranted for characteristic prostrating attacks occurring on an average once a month over last several months. A 50 percent rating is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The rating criteria do not define “prostrating” nor has the Court. Cf. Fenderson v. West, 12 Vet. App. 119 (1999) (in which the Court quotes DC 8100 verbatim but does not specifically address the matter of what is a prostrating attack). By way of reference, according to WEBSTER’S NEW WORLD DICTIONARY OF AMERICAN ENGLISH 1080 (3rd Ed. (1986)), “prostration” is defined as “utter physical exhaustion or helplessness.” A very similar definition is found in DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1531 (32nd Ed. (2012)), in which “prostration” is defined as “extreme exhaustion or powerlessness.” The Veteran’s migraines are currently rated at 30 percent. The Veteran contends he is entitled to a higher rating due to daily prostrating attacks. For the following reasons the Board finds a higher rating is not warranted. The Veteran attended a VA examination for migraines in May 2013 and reported daily temporal pain, affecting both sides of the head, that occurs almost daily, lasting one to two hours with changes in vision. The examiner concluded that the Veteran does not characteristic prostrating attacks of migraine headache pain; however, he does have prostrating attacks of non-migraine pain that are not very frequent or prolonged. The examiner concluded that the Veteran’s headaches do not impact his ability to work. Review of the medical records reflect complaints of headaches that occur daily but improve with Ibuprofen. The treatment notes indicate that the headaches are temporal and do not result in blurry vision, nausea, or light or sound sensitivity. When making a decision, the Board must consider all the evidence of record, to include lay statements and assess not only competency of any lay statements, but also their credibility. 38 U.S.C. § § 5107(b), 7104(a); 38 C.F.R. § 3.303(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran provided a statement alleging that he has two to four migraine headaches a month, which has prevented him from seeking and holding employment since 2012. According to the Veteran, he has severe and debilitating pain on the right side with watery eyes and a runny nose. When he has these attacks, he stays in bed all day, has to block out light with a pillow and takes ibuprofen and acetaminophen daily. The Board finds the Veteran’s statements inconsistent with the evidence of record. The Veteran alleges his headaches prevent him from seeking and obtaining employment; however, the Veteran has been attending school full-time and maintaining a low 3.0 grade point average since discharge from active duty. Furthermore, in January 2017, the Veteran’s vocational rehabilitation records reflect that he reported having headaches only a couple times a month and that he is able to persist with work or the task at hand even with a headache. As such, the Board finds the Veteran’s statements are not credible and therefore affords them no weight. In order for the Veteran to warrant the next higher rating of 50 percent, the evidence must establish that the Veteran has very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The VA examiner determined that the Veteran did not have very frequent and prolonged attacks and his headaches did not impact his ability to work. Additionally, the Veteran’s headaches have not prevented him from continuing his education as a full-time student. As such, the Veteran’s headaches do not result in severe economic inadaptability. Therefore, a rating in excess of 30 percent for migraines is not warranted 2. PTSD The Veteran's PTSD is currently rated at 30 percent under 38 C.F.R. § 4.130, DC 9411 (2017). Ratings are assigned according to the manifestation of particular symptoms. Under DC 9411, a 30 percent is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty establishing effective work and social relationships. A 70 percent is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. A 100 Percent is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living [including maintenance of minimal personal hygiene]; disorientation to time or place; memory loss for names of close relatives, own occupation or own name. The “such symptoms as” language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means “for example” and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, as the Court also pointed out in that case, “[w]ithout those examples, differentiating a 30% evaluation from a 50% evaluation would be extremely ambiguous.” Id. The Court went on to state that the list of examples “provides guidance as to the severity of symptoms contemplated for each rating.” Id. Accordingly, while each of the examples needs not be proven in any one case, the particular symptoms must be analyzed in light of those given examples. Put another way, the severity represented by those examples may not be ignored. The Veteran alleges he is entitled to a higher rating for PTSD due to panic attacks, difficulty in establishing and maintaining effective work and social relationships, and desired social isolation. The Board finds the evidence is insufficient to warrant a rating in excess of 30 percent. The Veteran attended a VA examination in May 2013. The examiner noted symptoms of depressed mood, anxiety, and chronic sleep impairment. The mental status examination revealed that the Veteran was appropriately groomed and casually dressed, oriented to person, place and time, and had good eye contact. The examiner noted that he was calm and cooperative and rapport developed quickly. The Veteran’s mood was euthymic and affect congruent with mood; he denied suicidal or homicidal ideations and his thought processes were linear, logical, and goal directed. His judgment and reasoning appeared intact and there was no evidence of perceptual disturbances, paranoia or delusional thinking. Occupationally, the Veteran reported that the was attending college and planning on applying to law school. Socially, he reported having a good relationship with his parents and sister, with whom he has weekly contact. He described his relationship with his two children from his prior marriage as ok and that he sees them summers and holidays. The Veteran remarried in 2003 and has a good relationship with his wife and their two kids. The Veteran also reported that he has season passes to Disney, studies for college, and attends his daughter's sporting events. As far as friends, he maintains contact with military friends and belongs to the Veterans of Foreign Wars (VFW). The examiner concluded that the Veteran has occupational and social impairment due to mild and transient symptoms which only decrease work efficiency and ability to perform occupational tasks during periods of significant stress, or symptoms controlled by medication. Review of the medical records note complaints of anxiety and difficulty with sleep. The mental status examinations repeatedly reflect that the Veteran is neatly groomed, dressed appropriately and cooperative and the Veteran consistently denies any suicidal or homicidal ideations. Treatment notes describe his thought processes as linear and goal oriented and that his memory appears intact. Additionally, there is no evidence of auditory or visual hallucinations or delusional thoughts and his judgment and insight is good. The medical records do reflect that the Veteran’s mood at times is irritable or anxious and he often reports poor sleep with frequent awakenings. The Veteran provided a statement reporting that he is socially inept, has mood swings and violent outbursts and wants to hurt others. He explained that he engages in inappropriate sexual behavior with multiple partners, will go up to seven days without showering and he indicates that he is unable to manage his financial affairs. The Veteran also reported that he sometimes sleeps for days at a time or rarely sleeps at all and forgets the names of his children, feels disoriented and struggles to understand difficult commands. The Veteran’s sister also provided a statement, expressing that the Veteran is serious, dark and angry. According to the sister, the Veteran has angry outbursts that are out of proportion to the situation at hand. While the Veteran and his sister are competent to describe observable symptoms from which the Veteran suffers, the record reflects inconsistent reporting, which calls into question the Veteran’s overall credibility and the reliability of the statements offered in support of his claim for benefits. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (the Board can consider bias in lay evidence and conflicting statements of the veteran in weighting credibility); Caluza v, 7 Vet. App. at 511. In January 2017, the Veteran stated that his PTSD condition is stable at his vocational rehabilitation counseling and described himself as organized and able to work well under pressure. At the VA examination, the Veteran reported having good relationships with family, contact with friends and involvement in activities such as trips to Disney and his daughter’s sporting events. The record reflects that since discharge from military service, the Veteran has attended school full-time and has degrees in liberal arts, legal studies, and film with aspirations to attend law school. Furthermore, the Veteran’s mental status examinations repeatedly describe him as well-groomed and cooperative and he consistently denies homicidal ideations. As such, the Board finds that the Veteran’s statements are inconsistent with his prior reports and inconsistent with medical and objective evidence of record. Therefore, the Board finds the Veteran is not credible and no weight is given to his statements. As such, the evidence does not support a finding that the Veteran’s symptoms most closely approximate the criteria contemplated by a 50 percent rating, which is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect, impaired judgment, impairment of short and long-term memory, and difficulty in understanding complex commands. The VA examiner determined that the Veteran’s symptoms are mild and transient, which is consistent with a 10 percent rating; however, the Veteran received a 30 percent rating due to his symptoms of chronic sleep impairment, anxiety, and depression. The Board gives significant weight to the findings of the VA examiner as they are consistent with the record showing that the Veteran is generally cooperative, well-groomed, and able to attend school full time. As such, the Veteran does not warrant a rating in excess of 30 percent for PTSD. 3. Bilateral Ankle Condition When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Court in Mitchell explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45 (2017). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Veteran’s bilateral ankle condition is rated under 38 C.F.R. § 4.71a DC 5271, which pertains to limited motion of the ankle. Under DC 5271 a 10 percent rating is warranted for moderate limitation of motion of the ankle and a 20 percent rating is warranted for marked limitation of motion. The terms “moderate” and “marked” are not defined in VA regulations, and the Board must arrive at an equitable and just decision after having evaluated the evidence. 38 C.F.R. § 4.6 (2017). The Veteran contends he is entitled to a compensable rating due to pain from standing, walking, and climbing stairs. The Veteran attended a VA examination in May 2013. He reported bilateral pain during ambulation and stated that he does not take medications, or has had surgeries, or injections for his ankles. Additionally, the Veteran stated that he does not have flare-ups. The examiner noted that the Veteran ambulates well and does not use assistive devices. Range of motion testing yielded normal results and there was no objective evidence of painful motion. There was also no limitation of motion or additional functional loss after repetitive use testing. Physical examination revealed normal strength, no laxity and no ankylosis but there was pain on palpation. The Veteran’s x-ray findings were normal. The examiner concluded that the Veteran’s bilateral ankle condition does not impact his ability to work. Review of the medical record reflects that the Veteran has good range of motion of his ankles with no crepitus. Additionally, treatment notes reflect that the Veteran has no other abnormalities aside from pes planus. When making a decision, the Board must consider all the evidence of record, to include lay statements. 38 U.S.C. § § 5107(b), 7104(a); 38 C.F.R. § 3.303(a). The Board must assess not only competency of any lay statements, but also their credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The Veteran provided a statement disagreeing with the VA examiner’s report of no flare-ups and range of motion findings. The Veteran states that he has constant pain in both ankles for which he takes medication and is in pain for three days after standing for more than five minutes. While the Veteran is competent to describe the particular symptoms from which he suffers, the Board gives more weight to the findings of the VA examiner and the objective medical evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). At the VA examination, the Veteran denied flare-ups but did report pain during ambulation. The examiner observed that the Veteran was able to ambulate well and the objective range of motion tests revealed no limitations and no pain on motion. These findings are consistent with the medical records, which also report that the Veteran has good range of motion bilaterally in his ankles, normal x-rays of the ankles, and no crepitus. In order for the Veteran to warrant a compensable rating for his bilateral ankle condition his range of motion must be at least moderately limited. As discussed above, the Veteran’s VA examination range of motion findings and medical records do not provide any evidence of limitation of range of motion or objective evidence of pain on motion. As such, a compensable rating is not warranted. The Board has also considered all potentially applicable provisions of the rating schedule, whether or not they have been raised by the Veteran or the record, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The evidence of record does not establish ankylosis of the Veteran’s bilateral ankles, ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, or astragalectomy. Therefore, the Board finds no basis upon which to assign increased disability ratings for any period on appeal. See 38 C.F.R. § 4.71a, DCs 5270, 5272-5274. 4. Pruritic Eczema Under DC 7806, a noncompensable rating is warranted for dermatitis or eczema affecting less than 5 percent of the entire body or of the exposed areas, and requiring no more than topical therapy during the past 12-month period. A 10 percent rating is warranted for dermatitis or eczema affecting at least 5 percent, but less than 20 percent of the entire body or of the exposed areas, or requiring intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is warranted for dermatitis or eczema affecting 20 percent to 40 percent of the entire body or of the exposed areas, or requiring systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the past 12-month period. A maximum, 60 percent rating is warranted for dermatitis or eczema affecting 40 percent of the entire body or more than 40 percent of the exposed areas, or requiring constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period. 38 C.F.R. § 4.118, DC 7806. In July 2017, the Federal Circuit held that not all forms of treatment with corticosteroids and other immunosuppressive drugs are automatically “systemic therapy” under 38 C.F.R. § 4.118, DC 7806, which distinguishes between systemic and topical therapy. Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). Rather, the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case. Id. at 1356. Systemic therapy means treatment pertaining to or affecting the body as whole, whereas topical therapy means treatment pertaining to a particular surface area, as a topical anti-infective applied to a certain area of the skin and affecting only the area to which it is applied. Id. at 1355. Thus, the question for consideration is whether the treatment is administered on a large enough scale to affect the body as a whole. The Veteran alleges that he is entitled to a rating of 10 percent for his pruritic eczema due to his flare-ups and use of steroidal drugs. The Veteran attended a VA examination in May 2013 and reported pruritic eczema on his hands and feet with intermittent flairs that occur approximately once a month. The Veteran’s treatment in the past twelve months consist of topical corticosteroids for six weeks or more but not constant. Physical examination revealed eczema covering less than five percent of the total body area. The examiner concluded that the Veteran’s eczema does not impact his ability to work. The Veteran provided a statement that he is currently on ketoconazole and betamethasone for his eczema, which is consistent with the medical records indicating treatment of eczema with topical antifungal and steroids creams as needed. To warrant a compensable rating the Veteran’s eczema must cover at least five percent of his total body, exposed area or require systemic therapy or other immunosuppressive drugs. The VA examiner found that the Veteran’s eczema is located on his feet and hands and covers less than five percent of the Veteran’s total body area, exposed area. The medical records reflect treatment with corticosteroids and antifungal creams; however, the evidence does not establish that the Veteran’s topical corticosteroid is administered on a large enough scale to affect his whole body, thus establishing systemic therapy. See Johnson, 862 F.3d 1351. As such, a compensable rating for pruritic eczema is not warranted. TDIU TDIU may 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 or as a result of two or more disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 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 disability that is 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). For the stated 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; and (2) disabilities resulting from common etiology or a single accident. 38 C.F.R. § 4.16 (a). “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a) (2017). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). The Veteran alleges that his service connected migraines prevent him from securing and following a substantially gainful occupation. However, the Veteran does not meet the threshold requirements for entitlement to TDIU on a schedular basis. As the Veteran does not have a single disability rated at 60 percent or one 40 percent disability during the appellate period, the Veteran is not entitled to a TDIU on a schedular basis. See 38 C.F.R. § 4.16 (a). If the applicable percentage standards set forth in 38 C.F.R. § 4.16 (a) are not met, but evidence indicates that the Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities, the issue of entitlement to a TDIU may be submitted to the Director of the Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16 (b); Fanning v. Brown, 4 Vet. App. 225 (1993). The Board cannot assign an extraschedular rating in the first instance. Bagwell v. Brown, 9 Vet. App. 337 (1996). Therefore, the Board must specifically adjudicate whether to remand a case for referral to the Director of the Compensation Service for consideration of an extraschedular TDIU. Thun v. Peake, 22 Vet. App. 111 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). In order to prevail on an extraschedular basis, the record must reflect some factor that takes the case outside the norm. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether one can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board finds that a referral for consideration of the TDIU claim for extra-schedular consideration is not warranted. The record reflects that, throughout the period on appeal, the Veteran attended college full-time with aspirations to attend law school. Furthermore, in December 2013, on the Veteran’s application for vocational rehabilitation he listed lack of civilian experience and marketable skill set as barriers to employment and did not provide any medical conditions that may affect employment. The Veteran also reported in January 2017 that his headaches do not prevent him from being able to work. The Board also notes that the May 2013 VA examiner concluded that the Veteran’s headaches do not impact his ability to work. The Board acknowledges that the Veteran’s service-connected disabilities may impact his ability to engage in certain employment; however, the evidence does not support a finding that his service connected disabilities prevent him from obtaining or sustaining any kind of employment. Rather, the evidence suggests that the Veteran’s current unemployment is a result of his status as a full-time student, as opposed to limitations for service connected disabilities. As the evidence does not suggest that the Veteran has been rendered unemployable by reason of his service-connected disability at any time during the pendency of the appeal, the Board is not required to submit his claim to the Director of Compensation Service for extraschedular consideration under 38 C.F.R. § 4.16 (b). REASONS FOR REMAND The record reflects the Veteran served in Iraq from February 2003 to December 2003; thus, the Veteran has active service in the Southwest Asia theater of operations during the Persian Gulf War period. 38 C.F.R. § 3.317 (e)(1) (2017). In May 2013, the Veteran attended a VA examination for his bilateral knee condition. The examiner found no identified knee conditions upon examination; however, the Veteran had limitations of range of motion for flexion bilaterally with less movement than normal, as well as, pain on palpation. As the evidence establishes that the Veteran is a Gulf War Veteran and there is no known etiology for the Veteran’s knee condition, it necessary to consider whether service connection is warranted under the provisions of 38 C.F.R. § 3.317. As such, the Board finds that a remand for a Gulf War examination is necessary in order to fully and fairly assess the merits of the Veteran’s claim. 38 C.F.R. § 3.159 (c)(4). The matters are REMANDED for the following action: 1. Obtain updated VA and/or private treatment records. If such records are unavailable, the Veteran’s claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for a Gulf War examination by an appropriate clinician to determine the nature and etiology of any knee conditions. The examiner must review the claims file to include a copy of this remand. Current VA Gulf War Examination Guidelines must be followed. All indicated tests should be performed, and all findings reported in detail. The VA examiner's opinion should address the following: (a) Whether the Veteran's complaints related to his bilateral knees are attributable to a known clinical diagnosis, or whether the reported problem is a manifestation of an undiagnosed illness. (b) If the bilateral knee condition is determined to be attributable to a known clinical diagnosis, state whether it is at least as likely as not (50 percent probability or greater) that the condition had its clinical onset during active service or is related to any in-service disease, event, or injury, to include Gulf War environmental hazards. The examiner should consider and address any lay statements of record. If there is a medical basis to support or doubt the history provided, the examiner should provide a fully reasoned explanation. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Finally, readjudicate the appeal. If the service connection sought for bilateral knee condition remains denied, issue a supplemental statement of the case and return the case to the Board. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. A. Prinsen, Associate Counsel