Citation Nr: 20071007 Decision Date: 11/03/20 Archive Date: 11/03/20 DOCKET NO. 06-14 022 DATE: November 3, 2020 ORDER Entitlement to an increased disability evaluation in excess of 20 percent for left-knee osteochondritis, based on instability, is denied. Entitlement to an initial disability evaluation in excess of 10 percent for left-knee degenerative joint disease, based on limitation of motion is denied. Entitlement to compensation for expressive aphasia under 38 U.S.C. § 1151 is denied. Entitlement to total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis is denied. FINDINGS OF FACT 1. The objective medical evidence shows at no time during the appeal period did left-knee osteochondritis more closely approximate recurrent subluxation or lateral instability greater than “moderate,” nor did it exhibit ankylosis, dislocation or removal of semi-lunar cartilage, flexion at less than 0 to 60 degrees, extension at less than 70 to 0 degrees, malunion or nonunion of the tibia and fibula, or genu recurvatum. 2. The objective medical evidence shows at no time during the appeal period did left-knee degenerative joint disease more closely approximate limitation of motion for flexion at less than 0 to 60 degrees, limitation of motion for extension at less than 70 to 0 degrees or arthritis involving two or more major or minor joints. 3. The objective medical evidence does not show that additional disability was caused by carelessness, negligence, lack of proper skill, or error in judgment by VA, or by an event not reasonably foreseeable. 4. The evidence of record shows the Veteran’s service-connected disorders alone have not rendered it impossible for him or the average person to secure or follow a substantially gainful occupation, nor does the record present such an exceptional case to warrant referral to the Director of Compensation Services for extraschedular consideration. CONCLUSIONS OF LAW 1. The criteria for an increased disability evaluation in excess of 20 percent for left-knee osteochondritis, based on instability, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5256 - 5263. 2. The criteria for an initial disability evaluation in excess of 10 percent left-knee degenerative joint disease, based on limitation of motion, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261. 3. The criteria for an award of 38 U.S.C. § 1151 benefits for expressive aphasia have not been met. 38 U.S.C. §§ 1151, 5107 (2012); 38 C.F.R. §§ 3.361, 3.1000 (2019). 4. The criteria for TDIU on an extraschedular basis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Marine Corps from February 1982 to February 1985. In August 2007, the Veteran testified at a Travel Board hearing before a Veteran’s Law Judge who is no longer at the Board. A transcript of that hearing is of record. The Veteran has not requested an additional hearing, and the Board will proceed. These matters have been remanded by the Board and returned to the Board. For the purpose of clarification, the Board notes that, although an August 2020 rating decision denied the claim for residuals of a stroke under 38 C.F.R. § 1151 for lack of new and material evidence, this claim in fact had previously been reopened in the Board’s June 2018 decision. Therefore, the claim has been open and active since that date and the Board presently has no need to engage in a new and material evidence analysis to establish jurisdiction over this claim and will proceed accordingly. Increased Schedular Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7 (2019). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Additionally, it is possible for a veteran to be awarded separate percentage evaluations for separate periods (staged ratings), based on the facts. See Fenderson v. West, 12 Vet. App. 119, 126–27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where an increase in the disability rating is at issue, the present level of the veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the relevant overall temporal 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. Hart v. Mansfield, 21 Vet. App. 505 (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 or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14 (2019). When evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the “pain must affect some aspect of ‘the normal working movements of the body’ such as ‘excursion, strength, speed, coordination, and endurance,’” as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (noting that while “pain may cause a functional loss, pain itself does not constitute a functional loss,” and, is therefore, not grounds for entitlement to a higher disability rating). Additionally, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, actually painful, unstable or malaligned joints, due to a healed injury, are recognized as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; see also Burton v. Shinseki at 5 (holding that the provisions of 38 C.F.R. § 4.59 are not limited to disabilities involving arthritis). 1. Entitlement to an increased disability evaluation in excess of 20 percent for left-knee osteochondritis, based on instability. 2. Entitlement to an initial disability evaluation in excess of 10 percent for left-knee degenerative joint disease, based on limitation of motion. A February 2005 rating decision denied the above claims. The Veteran timely filed a March 2005 Notice of Disagreement (NOD), initiating the appeal of these claims and the claim for TDIU, discussed below. The period for the Board’s consideration of relevant evidence begins approximately one year prior to March 2005. Left-knee osteochondritis The Veteran’s left-knee osteochondritis is rated under Diagnostic Code 5257, which provides in relevant part a 20 percent rating with evidence of moderate recurrent subluxation or lateral instability and a 30 percent rating will be assigned with evidence of severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Board will note at this point that descriptive words, such as “moderate” and “severe,” as used in Diagnostic Code 5257, are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The use of descriptive terminology by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision. 38 U.S.C. § 7104 (a); 38 C.F.R. §§ 4.2, 4.6. Turning to the record, in February 2005, the Veteran underwent a VA general medical examination, which addressed his left knee. The VA examiner noted the Veteran’s reports that he uses a brace when he leaves home, including that day as found on examination, and experiences subluxation one a month, dropping to one knee when it occurs and experiencing stiffness afterward. At the outset, the February 2005 VA examiner found left-knee moderate instability of the patella medially and laterally with weight bearing, but not in a sitting position. She diagnosed left-knee degenerative changes with a meniscal tear resolved by surgery. She further noted that day’s x-rays revealed minimal osteoarthritis of the left-patellofemoral joint. Additionally, in order to afford the Veteran every possible opportunity to attain the highest evaluation allowed under the regulations, the Board will also look to related or analogous diagnostic codes pertaining to the knee to determine if a higher evaluation might be available under those codes. Therefore, Diagnostic Code 5256 provides ratings from 30 to 60 percent for varying degrees of ankylosis of the knee. Specifically, favorable ankylosis of the knee, in full extension or in slight flexion between 0 degrees and 10 degrees warrants a 30 percent disability rating; ankylosis in flexion between 10 degrees and 20 degrees warrants a 40 percent disability rating; ankylosis in flexion between 20 degrees and 45 degrees warrants a 50 percent disability rating; and extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more warrants a 60 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5256. However, the February 2005 VA examiner made no findings of left-knee ankylosis. Under Diagnostic Code 5258, a 20 percent rating is warranted for dislocation of semilunar cartilage “with frequent episodes of ‘locking,’ pain and effusion into the joint.” As the Veteran at this time was already rated at 20 percent, this Diagnostic Code is not applicable, as an “extra” 20 percent added on is impermissible “pyramiding” of one diagnosis on top of another. See 38 C.F.R. § 4.14. Nonetheless, although finding pain as the most limiting factor, the VA examiner made no finding of left-knee locking or “catching” and found there was no swelling. The highest rating under Diagnostic Code 5259 for being symptomatic for removal of semilunar cartilage is 10 percent and, as already stated, the Veteran was already evaluated at 20 percent for the left knee. Moreover, no relevant findings were made and this diagnostic code therefore is not applicable. Diagnostic Code 5260, pertaining to limitation of motion, provides in relevant part a 20 percent rating when flexion is limited to 30 degrees. A 30 percent rating is warranted when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Normal flexion is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. Additionally, under Diagnostic Code 5261, relevant ratings include 20 percent when extension is limited to 15 degrees. A 30 percent rating is warranted where extension is limited to 20 degrees. A 40 percent rating will be assigned for limitation of extension of the leg to 30 degrees. A 50 percent rating will be assigned for limitation of extension of the leg to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Normal extension is from 140 to 0 degrees. 38 C.F.R. § 4.71, Plate II. The VA examiner specifically found left-knee range of motion findings showed left-knee flexion at 0 to 70 degrees with the same range with reported pain. Although the Veteran was reluctant to perform significant repetitive range of motion, the Veteran did not complain of weakness and pain with repetitive range of motion. The VA examiner made no finding for extension. The Veteran reported a flare-up one time per month, which is a worsening of pain and can last up to two days especially with cold weather. He further reported he will take 5-6 aspirin to alleviate the pain, he is able to function, but he decreases his activities so as not to exacerbate the pain and he uses a cane two times per week, depending on his level of knee pain. As the above range of motion measurements are above the threshold limitations of motion, no higher evaluation is available to the Veteran under Diagnostic Codes 5260 and 5261. Under Diagnostic Code 5262, a 20 percent rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability. A 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability. A maximum 40 percent rating is warranted with nonunion of the tibia and fibula, with loose motion, requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. The Veteran reported he has no sense of subluxation or recurrent dislocation of the femur or the tibia. On examination, the VA examiner made no findings of tibial or fibular impairment, with any nonunion with loss motion requiring a brace, or malunion of an ankle disability. Therefore, Diagnostic Code 5262, too, is not applicable. Diagnostic Code 5263 allows one evaluation at 10 percent for genu recurvatum, i.e., a reverse or backward-bending knee joint, “acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated.” As already stated, the Veteran at this time was already rated at 20 percent and, as it is, the February 2005 VA examiner made no such finding. An April 2008 VA examination for joints, to include left knee included the Veteran’s denial of any instability even when walking on uneven surfaces. Moreover, he reported no sense of subluxation or recurrent dislocation of the femur or tibia or of his patellofemoral joint. On examination, the VA examiner found the Veteran’s left knee was “ligamentously” stable and further exhibited stability in the Lachman and posterior drawer examination. The Veteran’s medical history and physical examination showed no evidence of left-knee recurrent subluxation or lateral instability. X-rays revealed only mild medial and lateral left-knee joint space arthrosis. Looking to the analogous diagnostic codes, the Veteran himself denied any symptoms of left-knee ankylosis or fusion and, on examination, the VA examiner made no findings of left-knee ankylosis. See 38 C.F.R. § 4.71a, Diagnostic Code 5256. As stated above, Diagnostic Codes 5258 and 5259 are not for application. However, regarding Diagnostic Codes 5260 and 5261, the VA examiner specifically found left-knee range of motion findings showed “full extension to 130 degrees flexion, with pain from 128 degrees to 130 degrees of terminal flexion. He is able to do this, both activ[ely] and passively. The pain at terminal flexion does not limit his motion. I repeated this motion 4 times as per VA request. There is no increased pain, decreased motion, increased fatigability, weakness, incoordination or stiffness of the knee with repetitive range of motion.” The VA examiner further noted the Veteran reported he will have “what he describes as flares approximately one time per week when he will step awkwardly on his left lower extremity and have an increase in pain. This flare increases pain to a 10/10. It can last anywhere from 10 minutes to 2 hours. His only remedy for flare is activity modification and resting his knees.” As the above range of motion measurements are well above the threshold limitations of motion, no higher evaluation is available to the Veteran under Diagnostic Codes 5260 and 5261. Looking to Diagnostic Code 5262, the Veteran reported no subluxation or recurrent dislocation of the femur or the tibia. Additionally, on examination, the VA examiner made no findings of tibial or fibular impairment, with any nonunion with loss motion requiring a brace, or malunion of an ankle disability. Therefore, Diagnostic Code 5262 is not applicable. For reasons already stated, Diagnostic Code 5263 is not applicable. A March 2014 VA examination for knee and lower leg conditions show diagnoses for left-knee osteochondritis, status post removal of loose foreign bodies and left-knee degenerative joint disease. On examination, all 4 joint stability tests were normal and the VA examiner found no patellar subluxation /dislocation, therefore exhibiting no criteria to warrant a higher rating under Diagnostic Code 5257. Available imaging studies documented degenerative or traumatic arthritis. The VA examiner made no findings of ankylosis (Diagnostic Code 5256). Range of motion findings show left-knee range of motion measurements for flexion at 0 to 65 degrees (0 to 140 degrees, normal), with pain detected at 60 degrees. Findings for extension showed no limitation of movement. Repetitive use testing showed further limitation of motion due to less movement and pain on movement, but, once again, extension showed no limitation of motion. The Veteran described flare-ups as hurting constantly, the knee is without power, it twitches sometimes, and the cold weather bothers it. Once again, this examination’s range of motion findings do not show limitation of movement warranting a higher rating under Diagnostic Codes 5260 and 5261. The VA examiner found no past or current “shin splints” (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. Therefore, Diagnostic Code 5262 is not applicable. In a September 2016 VA examination for knee and lower leg conditions, the VA examiner diagnosed left-knee joint osteochondritis. Left-knee joint stability testing resulted in normal findings for each of 4 tests, therefore showing no severe recurrent subluxation or lateral instability and, as a separate finding, there was no recurrent patellar dislocation, as required for a higher rating unde Diagnostic Code 5257. Available imaging studies did not document degenerative or traumatic arthritis. Additionally, the September 2016 VA examiner found no left-knee-joint ankylosis whatsoever and no higher rating therefore is warranted under Diagnostic Code 5256. Left-knee range of motion measurements showed flexion at 0 to 90 degrees (0 to 140 degrees, normal ) and extension at 90 to 0 degrees (140 to 0 degrees, normal). The VA examiner further found pain significantly limits functional ability with repeated use over a period of time. The Veteran described flare-ups as swelling and on rainy days, clicking, the need for a brace, and the inability to squat. Once again, this examination’s range of motion findings do not show limitation of movement warranting a higher rating under Diagnostic Codes 5260 and 5261. The VA examiner found no past or current “shin splints” (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. Therefore, Diagnostic Code 5262 is not applicable. The October 2019 VA examination for knee and lower leg conditions states a diagnosis of left-knee degenerative arthritis. The VA examiner at the outset noted the Veteran’s reports of a sense of left-knee instability with buckling occurring “most days,” standing more than 10 minutes will increase the likelihood of buckling, there have been no falls, and he does not use a left-knee brace. However, on examination and after administering 4 joint stability tests with normal results, she found there was no left-knee-joint instability. Without a finding of “severe instability,” no higher rating is available under Diagnostic Code 5257. Additionally, available imaging studies did not document degenerative or traumatic arthritis. Looking to the related diagnostic codes, the October 2019 VA examiner found no left-knee-joint ankylosis and no higher rating therefore is available under Diagnostic Code 5256. Left-knee range of motion measurements showed flexion at 0 to 90 degrees (0 to 140 degrees, normal ) and extension at 90 to 0 degrees (140 to 0 degrees, normal) during non-weight bearing, active range of motion. Passive range of motion measurements showed 0 to 70 degrees and 70 to 0 degrees. The VA examiner made no finding for a weight-bearing maneuver, as the left-knee pathology made it unsafe to test weight bearing by having the Veteran stand on one leg. In this examination’s findings, the VA examiner found pain on examination, but it did not result in or cause functional loss. Although not during repeated use over time testing, the VA examiner found pain significantly limits functional ability with flare-ups, estimating further limitation in range of motion findings of flexion at 0 to 70 degrees and extension at 70 to 0 degrees. The Veteran reported that during flare-ups he has more pain and limitation of movement, but remains independent in his activities of daily living. Based on these findings, no higher rating is warranted under Diagnostic Codes 5260 and 5261. The VA examiner found no past or current “shin splints” (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment for a higher rating under Diagnostic Code 5262. The foregoing summary of the record of examination does not show any finding throughout the appeal period which warrants a disability evaluation higher than the current evaluation of 20 percent. The Board has reviewed and considered the findings of no less than 5 VA examinations over the course of the appeal period and looked to the criteria of not just the assigned Diagnostic Code 5257, but to the criteria of 7 additional related or analogous diagnostic codes for knee disorders for any possibility of a higher disability evaluation. Nonetheless, as the Board has set forth in the above summary of the VA examinations, the findings on examination do not satisfy the numerous and varied evaluative criteria in Diagnostic Code 5257 and in the various related or analogous diagnostic codes. For these reasons and based on the objective medical evidence, the Board finds the preponderance of the evidence does not support an increased disability evaluation in excess of 20 percent for left-knee osteochondritis. Left-knee degenerative joint disease The Veteran’s left-knee degenerative joint disease is rated under Diagnostic Code 5010, which directs the adjudicator to rate arthritis as degenerative arthritis, under Diagnostic Code 5003. That diagnostic code in turn directs that, when substantiated by x-rays, degenerative arthritis will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. The joint is the knee and, as shown above, Diagnostic Codes 5260 and 5261 provide the relevant rating criteria for limitation of motion. In briefly looking farther into the record prior to the commencement of the appeal period for this claim, the Board notes that in its April 2000 decision, the Board considered June 1994 x-rays, which demonstrated the presence of left-knee degenerative joint disease. Based on that finding, the Board granted a “separate rating of 10 percent for the service connected degenerative arthritis of the left knee with functional limitation of motion.” The AOJ’s rating decision later in April 2000 in turn granted service connection for left-knee degenerative joint disease with an evaluation of 10 percent, “assigned for painful or limited motion of a major joint or group of minor joints and may also be applied once to multiple joints if there is no limited or painful motion. A 20 percent evaluation is not warranted unless X-ray evidence shows involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations.” In summarizing again the relevant findings above, the February 2005 VA examination’s x-rays revealed minimal osteoarthritis of the left-patellofemoral joint. In the April 2008 VA examination, the Veteran denied any symptoms of systemic inflammatory arthritis. As stated, x-rays showed mild medial and lateral left-knee joint space arthrosis, which the April 2008 VA examiner also characterized as no more than very mild arthritis “that may be age appropriate.” In both the September 2016 and October 2019 VA examinations, available imaging studies did not document degenerative or traumatic arthritis. Nonetheless, a November 2019 VA left-knee x-ray showed mild tricompartmental degenerative change in the left knee, notably in the patellofemoral compartments, but no acute fracture or dislocation. However, the Veteran is already rated at 10 percent, based on June 1994 x-ray evidence. Under Diagnostic Code 5003, the disability evaluation made in consideration of limitation of motion under Diagnostic Codes 5260 and 5261. Therefore, a higher rating for further findings of arthritis in the above VA examinations is not permitted, as an additional rating for the Veteran’s arthritis would constitute the evaluation of the same disability and symptomatology under multiple diagnoses, that is to say, by “pyramiding” one effectively identical diagnosis on top of another. 38 C.F.R. § 4.14. See also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Put another way, as just stated, Diagnostic Code 5003 first directs the rater to the appropriate diagnostic codes to determine the limitation of motion of the specific joint or joints involved. This was done in the April 2000 rating decision. After a disability rating is then assigned, no “extra” rating for arthritis is available. Additionally, even if there were no painful motion findings, the alternative under Diagnostic Code 5003 of a 20 percent rating based on x-ray evidence of arthritis involving “2 or more major or minor joints, with occasional incapacitating exacerbations,” is not applicable, as the knee is considered for VA rating purposes as only one joint. For these reasons and based on the objective medical evidence, the Board finds the preponderance of the evidence is against the claim for an initial disability evaluation in excess of 10 percent for left-knee degenerative joint disease. Compensation Under 38 U.S.C. § 1151 Under 38 U.S.C. § 1151, VA compensation shall be awarded for a qualifying additional disability or a qualifying death of a Veteran in the same manner as if such additional disability were service-connected. A disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the Veteran’s willful misconduct and either: 1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, either by a Department employee or in a Department facility, and the proximate cause of the disability or death was either A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or B) an event not reasonably foreseeable; or 2) the disability or death was proximately caused by the provision of training and rehabilitation services by the Secretary as part of an approved rehabilitation program. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing medical treatment proximately caused the additional disability, it must be shown that the medical treatment caused the additional disability; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the medical treatment without the veteran’s informed consent. 38 C.F.R. § 3.361 (d)(1). Benefits may also be paid where residuals result in an event that was not reasonably foreseeable. Id. To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Informed consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in 38 C.F.R. § 17.32 (b), such as in emergency situations. 38 C.F.R. § 3.361 (d)(1). Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Failure to advise a patient of a foreseeable risk can be considered a minor, immaterial deviation under the regulation if a reasonable person in similar circumstances would have proceeded with the medical treatment even if informed of the foreseeable risk. See McNair v. Shinseki, 25 Vet. App. 98 (2011). VA regulations provide that informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient or the patient’s surrogate of the proposed diagnostic or therapeutic procedure or course of treatment. The practitioner, who has primary responsibility for the patient or who will perform the particular procedure or provide the treatment, must explain in language understandable to the patient or surrogate the nature of a proposed procedure or treatment; the expected benefits; reasonably foreseeable associated risks, complications or side effects; reasonable and available alternatives; and, anticipated results if nothing is done. The patient or surrogate must be given the opportunity to ask questions, to indicate comprehension of the information provided, and to grant permission freely without coercion. The practitioner must advise the patient or surrogate if the proposed treatment is novel or unorthodox. The patient or surrogate may withhold or revoke his or her consent at any time. 38 C.F.R. § 17.32 (c). 4. Entitlement to compensation for expressive aphasia under 38 U.S.C. § 1151. After suffering what appeared to be a left-hemisphere stroke immediately following a February 2010 hernia operation at VA, the Veteran’s differential diagnosis of that event stated “most likely generalized seizure with post-ictal aphasia (expect patient’s symptoms to continue to improve) vs. less likely stroke visit. TIA [trans-ischemic attack] (CTH/CTA unremarkable).” He was discharged in March 2010, exhibiting appropriate bowel and voiding function, adequate pain control, ambulating without assistance, and showing improved aphasia. The Veteran in his July 2020 correspondence has since asserted that he further developed muscular weakness, memory impairment, and diminished cognitive function. He further asserts the stroke is the related to anesthesia and/or stresses of surgery, such an event is not reasonably foreseeable and there is a causal connection, as the stroke is a complication of the surgery, before which the Veteran was otherwise healthy, all within the meaning of § 1151. He adds that the July 2016 Statement of the Case (SOC) “notes that tests indicate a patent foramen ovale [congenital hole or passage between the heart chambers] [PFO], but PFO does not cause stroke. It was not the cause of stroke… again leaving only the anesthesia and stresses of surgery. Clearly, ‘PFO does not cause stroke’ does not disprove the instant claims. Benefit of the doubt must be resolved in favor of the claimant.” In an April 2010 VA neuropsychology consult, the treatment provider noted the Veteran has experienced problems with aphasia, characterized as conduction aphasia (fluent output but with frequent phonemic paraphasia, relatively intact comprehension) since that time and was being followed closely by Speech Therapy. The treatment provider further noted from the Veteran’s medical history that he exhibits “circumlocution as the veteran attempts to self-cue for his deficits in word retrieval, difficulties with reading comprehension and the ability to structure writing, and difficulties with sentence repetition. The veteran’s difficulties with reading and speech comprehension are much milder than his expressive language problems and judged to be relatively spared in comparison with other domains of language.” The treatment provider concluded that the Veteran’s “difficulties likely stem in large part from the recent stroke, however previous neuroimaging did indicate mild atrophy and it is possible he had some mild cognitive difficulties prior to the stroke that were subclinical and not noticeable by the veteran until the additional cerebral insult of his recent stroke.” An April 2010 Summary of Results for Neuropsychology Evaluation by the Veteran’s VA neuropsychologist stated the Veteran was now enrolled in Pittsburgh VA’s Program for Intensive Residential Aphasia Treatment and Education (PIRATE program). She apprised the Veteran of common symptoms and difficulty regarding aphasia, such as already stated, mild difficulty with comprehension, as well as a mild cognitive difficulty beyond a language disorder, including memory, multi-tasking, mental fatigue, possible attention deficiency, and a general need for more rest. In regard to the above, she also stated practical steps to address these difficulties. She further noted that the Veteran was already showing signs of improvement. In a VA May 2010 neurology consult, the treatment provider noted that the Veteran’s past medical history was significant for alcohol abuse, hypertension, and hypercholesterolemia and, from the Veteran’s reports, his “mother had a stroked at age 59, father had stroke in the late 60s and had a history of hypertension.” Later records in October 2019 contain the Veteran’s further report that his mother has a history of blood clots. Significantly, in a May 2010 VA hematology/oncology consult, the Veteran reported his expressive aphasia has since resolved due to rehabilitation. The treatment provider found on examination the Veteran’s “cranial nerves II through XII are intact. He has symmetric facial movements. He has occasional dysarthria; however, no actual expressive aphasia. His gait is not ataxic. Otherwise, no focal neurologic deficits.” In the course of continued aphasia therapy at VA, a November 2010 diagnostic impression stated mild aphasia complicated by anomia [unable to recall the names of everyday objects], deficits in auditory working memory, and difficulty with repetition. Physical examination of the Veteran showed, although awake, alert, oriented to time, place, person, and situation, and able to follow 3-step commands, but with additional effort, the Veteran’s fluency was impaired, he was able to respond in simple sentences, he had difficulty in finding words and responding in more complex sentences, he could name simple but not more complex objects, and he had difficulty with repetition. The neurologist assessed the Veteran with status post probable embolic stroke with the presence of positive lupus anticoagulate and a patent foramen ovale. He added that although the Veteran has not had other thrombotic events, extensive work up did not identify any other cause of the stroke. In a July 2016 VA medical opinion, the VA examiner opined that the Veteran’s claimed stoke with residual aphasia was not caused by or worsened by VA treatment. However, due to the various contradictions apparent in the medical evidence of record, the Board in June 2018, finding the July 2016 opinion inadequate, remanded the claim for a new VA examination, eventually conducted in November 2019, with an accompanying opinion. February 2019 treatment notes from the state prison in Somerset County, Pennsylvania show that the Veteran reported a history of a stroke in 2010, but with no residual effects. Other relevant findings in the evidence of record during the appeal period include August 2019 through July 2020 VA pharmacy notes showing the Veteran denied signs and symptoms of stroke, including one-sided weakness, blurred vision, and numbness and tingling in the extremities. In October 2019, the Veteran specifically denied deep vein thrombosis and pharyngoesophageal symptoms and he reported no stroke symptoms. VA primary care notes in August and September 2019 noted that the Veteran’s expressive aphasia was being followed by the Speech Language Pathology division, but has now improved. Although VA treatment notes from February 2020 note aphasia as a continuing neurocognitive disorder, “especially with numbers, ” a treatment provider in a February 2020 VA radiation oncology consult noted, “No aphasia during our interview.” As directed in the Board’s June 2018 Remand, in November 2019, the Veteran underwent a VA examination for central nervous system and neuromuscular diseases, in which the VA examiner stated a 2010 diagnosis of thrombosis, TIA or cerebral infarction. The VA examiner noted the medical history, as reported by the Veteran, indicates the current symptoms to be speech communication, memory, reading and writing are affected and the impact of the condition is “everything, the Veteran cannot understand instructions and he cannot add numbers.” The VA examiner further noted that the medical history indicates the Veteran does not require continuous medications for control. The VA examiner found signs and symptoms did not indicate muscle weakness in the extremities, there were no pharynx/larynx or swallowing conditions, no respiratory conditions, no sleep disturbances, no bowel function impairment, no voiding dysfunction showing either leakage, frequency, infections or obstruction, or erectile dysfunction. On neurologic examination, she found normal speech, normal gait, normal strength in all relevant body segments, and normal deep tendon reflexes in all relevant muscle groups and body-segments. She further found no depression, cognitive impairment or dementia, or any other mental health conditions attributable to a central nervous system disease. She observed the Veteran used no assistive devices. However, the VA examiner found functional impact to activities, ability to work, based on the Veteran’s reports of difficulty with speech, remembering things, communicating, writing the wrong things down, asking people to repeat, and forgetting what he is saying. In her remarks she noted the Veteran’s further reports that he has not been working for over 10 years, he worked in a sedentary position at a post office in Pittsburgh, he is presently not employed, he reports he has aphasia since the stroke in 2010, and he has difficulties with memory and communication, which is as likely to impact his ability to communicate which impacts ability to perform occupational and employments activities. She further remarked that this is a subjective history of aphasia and memory impairment. She added, “However[,] exam is normal.” A second November 2019 VA examiner opined that it is less likely as not (less than 50 percent probability) that the Veteran suffered additional disability (stroke/aphasia) as a result of medical treatment at the Pittsburgh VA Medical Center on February 16, 2010. He explained: Veteran had a recurrent suprapubic incisional hernia that needed repair. Operative management was discusse[d], as well as the risks, benefits, alternatives, complications associated with operative repair. Veteran wished to proceed with surgery. Surgery was performed without incidence; however, postoperatively, Veteran was unresponsive in PACU [post-anesthesia care unit]. Neurology was consulted, the Veteran was transferred to ICU [intensive care unit]. Subsequent MRI showed acute infarct from which Veteran developed aphasia. Workup for etiology of stroke was initiated with positive findings of a PFO [patent foramen ovale]. Reference: 02-23-10 Pittsburgh VAMC general surgery note includes…. After the patient was seen in the general surgery clinic, operative management was discussed. The patient is aware of the risks, benefits, alternatives, complications associated with operative repair, and wishes to proceed at this time. PROCEDURE: On 2/16/10 open repair of suprapubic recurrent incisional hernia using 15 x 15 proceed mesh. HOSPITAL COURSE: The patient tolerated the procedure well. However, during the recovery in the PACU, he was noted to have unresponsiveness and a questionable seizure. A stat neurology consult was called, and the patient was immediately transferred to the ICU. An MRI of the brain did demonstrate a left posteroparietal cortical and subcortical abnormal density that was consistent with an acute infarct.... To continue to work up the etiology of the stroke, bilateral carotid duplexes were obtained, demonstrating less than 50% stenosis bilaterally. Additionally, a TEE [transesophageal echocardiography] was done, which did not show any clot or thrombus. However, it was positive for a PFO and abnormal central wall motion, as well as RV [right ventricle] dilatation. IN MY OPINION, AFOREMENTIONED NARRATIVE DOES NOT REPRESENT ANY WRONGDOING ON THE PART OF VA ATTENDING PERSONNEL. 05-05-10 Pittsburgh VAMC neurology note in[d]i[c]ates Veteran had risk factors for stroke unrelated to surgical procedure that include history of alcohol abuse, hypertension, and hypercholesterolemia, WHICH IN MY OPINION, CONFOUNDS THE ETIOLOGY OF THE STROKE. Note also states, “Status post probable embolic stroke with the presence of positive lupus anticoagulant and a patent foramen ovale. Although the pt [patient] has not had other thrombotic events, extensive work up did not identify any other cause of stroke,” WHICH IN MY OPINION, INDICATES NO OTHER CAUSE OF STROKE OTHER THAN POSITIVE LUPUS ANTICOAGULANT AND PATENT FORAMEN OVALE. Reference: 05-05-10 Pittsburgh VAMC neurology note includes: PAST MEDICAL HISTORY: Significant for history of alcohol abuse, hypertension, and hypercholesterolemia. ASSESSMENT: Status post probable embolic stroke with the presence of positive lupus anticoagulant and a patent foramen ovale. Although the pt has not had other thrombotic events, extensive work up did not identify any other cause of stroke. Follow-up 07-14-10 Pittsburgh VAMC neurology note includes, “TEE revealed a significant left-to-right shunt through a patent foraminal ovale... and second opinion from hematology was obtained and repeat hypercoagulability studies revealed that the lupus anticoagulant was no longer positive,” WHICH IN MY OPINION, INDICATES THAT CAUSE OF THE STROKE IS MORE LIKELY THAN NOT FACILITATED BY THE LEFT TO RIGHT SHUNT THROUGH A PATENT FORAMEN OVALE. Reference: 07-14-10 Pittsburgh VAMC neurology note includes: CHIEF COMPLAINT: The patient is a 46-year-old man who returns to followup due to left hemispheric stroke with residual aphasia. TEE revealed a significant left-to-right shunt through a patent foraminal ovale. Hypercoagulability screening done in the postoperative setting including a positive lupus anticoagulant.... A second opinion from hematology was obtained and repeat hypercoagulability studies revealed that the lupus anticoagulant was no longer positive. Pathophysologically, a patent foramen ovale can facilitate a blood clot going to the brain and causing a stroke. Reference: https://www.heart.org/en/health-topics/congenital-heart-defects/about-congenital-heart-defects/patent-foramen-ovale-pfo. “For the vast majority of the millions of people with a PFO, it is not a problem, even though blood is leaking from the right atrium to the left. Problems can arise when that blood contains a blood clot. “Blood clots form in our veins all the time,” said Dr. David Thaler, associate professor of neurology at Tufts University School of Medicine and director of the Comprehensive Stroke Center at Tufts Medical Center in Boston. “These are tiny blood clots of just a few millimeters that travel from all over the body into the vena cava where they enter the right upper chamber of the heart.” From there they are pumped into the right ventricle, from where they enter the lungs. These tiny blood clots (individually called a venous thrombus) get filtered by the tiny capillaries in the lungs, after which the freshly oxygenated blood enters the left atrium, then the left ventricle. From the left ventricle, the blood is pumped out into the miles of blood vessels that feed oxygen and nutrients to every cell in our bodies. “Our lungs normally filter out these tiny clots, but a 2mm thrombus in the brain can cause real havoc” Dr. Thaler said. That can happen when someone has a PFO or ASD. “PFOs don’t actually cause strokes, but they provide a portal through which a thrombus might pass from the right to the left side of the circulation,” said Dr. Patrick O’Gara, professor of medicine at Harvard Medical School and executive director of the Shapiro Cardiovascular Center. Depending on whether the clot takes a right or left turn as it exits the heart, it can travel to the brain and cause stroke or TIA. Statistically speaking, the odds of this happening are low, but it can happen.” Undated DVA Hearing is acknowledged. 06-26-18 BVA REMAND is acknowledged, specifically, Dr. SH[’]s testimony that includes, “She testified that the Veteran suffered a left parietal infarct and that an investigation into the cause of the stroke had shown the believed cause to be a patent foramen ovale, or a hole in the heart, which allowed a small thrombus in the surgical setting to travel into his brain,” WHICH IN MY OPINION, SUPPORTS THE PATENT FORAMEN OVALE FACILITATED THE STROKE. The July 2016 VA opinion in the 06-26-18 BVA REMAND is acknowledged. CONCLUSION: Therefore, in consideration of aforementioned narrative, specifically that Veteran had a patent foramen ovale, which is a defect unrelated to any surgical intervention, that facili[t]ated his stroke, in my opinion, it is less likely than not Veteran has suffered additional disability as the result of medical treatment. Based on the medical evidence and the November 2019 VA examiner’s review of the record for his opinion, there is no discernible error made by VA in any of the procedures pertaining to the February 2010 hernia surgery, nor has the Veteran identified a specific instance of a clinical error or a questionable surgical procedure. The November 2019 VA examiner in the rationale for his opinion tracked relevant segments of the record and assessed them as he went in order to opine whether VA’s procedures or the conclusions made from them by its medical professionals were sufficient and correct. The evidence shows the Veteran’s congenital heart defect (patent foramen ovale) most likely facilitated the possibility of a stroke. Additionally, the record shows that, in the May 2010 VA hematology/oncology consult, the Veteran reported his expressive aphasia had since resolved due to rehabilitation and, on examination, the treatment provider found “no actual expressive aphasia” and “no focal neurologic deficits.” Moreover, state prison medical records show the Veteran himself, when reporting a history of stroke in 2010, further reported there were no residual effects. Additionally, August 2019 through July 2020 VA pharmacy notes show the Veteran reported no signs and symptoms of stroke and in October 2019, the Veteran specifically denied pharyngoesophageal symptoms and any stroke symptoms whatsoever. In a February 2020 VA radiation oncology consult, the treatment provider noted, “No aphasia during our interview.” Lastly, the November 2019 VA examiner for central nervous system and neuromuscular diseases, after noting the Veteran’s reports of symptoms, on examination, concluded, “However[,] exam is normal.” Nothing in the record establishes VA hospital care, medical or surgical treatment, or examination to have exhibited carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, nor did additional disability result from an event not reasonably foreseeable. Accordingly, the preponderance of the evidence of record is against a finding of entitlement to compensation under 38 U.S.C. § 1151. 5. Entitlement to TDIU on an extraschedular basis. A finding of TDIU is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. §§ 3.340 (a)(1), 4.15. 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 age or to the impairment caused by non-service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. 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 and of itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the veteran, in considering his or her service-connected disabilities, can perform the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled 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, the disability shall be ratable at 60 percent or more. If there are two or more such 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. 38 C.F.R. § 4.16 (a). The combined rating is achieved by “adding” the disability ratings together. However, this is not the conventional addition of numerical values. The efficiency of the individual for employment purposes is not reflected as a numerical value equivalent to the assigned disability rating; in terms of actual efficiency, the number will be lessened under the regulation. However, VA recognizes that earning capacity is affected exponentially as a less severe service-connected disability is added to the most severe service-connected disability, thereby reflecting the ever-diminishing efficiency of the individual. See 38 C.F.R. § 4.25. The United States Court of Appeals for the Federal Circuit has held that determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the VA Regional Office. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Additionally, “substantially gainful employment” is defined as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to the veteran’s earned annual income. See Faust v. West, 13 Vet. App. 342 (2000). The determination as to whether TDIU is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). As stated, consideration may be given to level of education, special training and previous work experience in arriving at a conclusion, but not to age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran’s earned income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Marginal employment, odd-job employment and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. See 38 C.F.R. § 4.17 (a). The Board has reviewed all the evidence in the Veteran’s claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. The Board first notes again that the Veteran’s service-connected left-knee osteochondritis is currently rated at a 20 percent disability evaluation, service-connected left-knee degenerative joint disease is rated at 10 percent and service-connected left-knee scars has been assigned a noncompensable disability evaluation. Combined, the Veteran’s service-connected disabilities are at 30 percent. However, the combination does not satisfy the regulatory threshold of one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). That notwithstanding, it is the policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16 (b). Therefore, although the schedular criteria for TDIU, as set out in 38 C.F.R. § 4.16 (a), are not met, a total rating on an extraschedular basis may nonetheless be granted in exceptional cases (and pursuant to specifically prescribed procedures) when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b). To accord justice, therefore, in the exceptional case where the schedular ratings are found to be inadequate, the Director of the Compensation Service, upon field-station submission, is authorized to approve an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. Neither the Regional Office (RO) nor the Board is permitted to assign an extraschedular rating in the first instance. Floyd v. Brown, 9 Vet. App. 88, 95 (1996)). However, the Board may review the later determinations of the Director of the Compensation Service. Anderson v. Shinseki, 22 Vet. App. 423, 427. The Veteran’s service-connected disabilities, employment history, education and vocational attainment, and all other factors bearing on the issue will be considered. 38 C.F.R. §§ 3.341, 4.16 (b), 4.19. The Veteran’s two Applications for Increased Compensation Based on Unemployability (VA Form 21-8940, dated and received by VA in June 2004 and March 2005, show the Veteran became too disabled to work as a United States Postal Service mail handler sometime in 1994, last having worked full-time in May 1994, reportedly due to the service-connected knee disorders precluding securing or following any substantially gainful occupation. On the earlier form, he added muscles and arthritis. The Board will note here that, of the above-stated disorders, the Veteran is service-connected only for the two left-knee disorders. The record shows the Veteran’s application for TDIU, dated June 2004, was received by VA in July 2004. However, as entitlement to TDIU is part-and-parcel of an ongoing increased rating claim, the appeal period begins with the filing of his March 2005 Notice of Disagreement (NOD), appealing the February 2005 denial of an increased ratings for the two left-knee disorders. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The period for the Board’s consideration of relevant evidence begins approximately a year prior to March 2005. Looking to the Veteran’s work experience, training and education, a Certificate of Release or Discharge from Active Duty (Form DD 214) shows the Veteran’s was as a “Field Artillery Battery Man.” However, in his August 2007 Board hearing testimony, the Veteran testified that the Marines put enlisted personnel where needed and his duties appear to have included embarkation, loading ships and planes, artillery, military police, camp services, special services, and driver. The Veteran further testified that after separation from active service, he worked as a guard for Fitness USA, as a cash-register clerk at G&C vitamin store and then was brought into the United States Postal Service, all approximately within 18 months of separation from active service. Regarding education, on each Form 8940, the Veteran has circled numbers indicating he completed a high-school education. On the March 2005 Form 8940, over the numbers indicating years of college-level education, a handwritten notation, presumably the Veteran’s, states “classes,” indicating the Veteran enrolled in some college-level classes. The Veteran’s August 2007 Board hearing testimony confirmed this. The Board will note again that the Veteran’s service-connected left-knee scars have received a noncompensable disability evaluation. The record pertaining to the service-connected left-knee disorders has been summarized in the first section of this decision and the extent of left-knee functional impairment has been set forth and is discussed at length. In addition, in the February 2005 VA general medical examination, the VA examiner made the following findings and comments regarding employability: The veteran previously worked in a physical position requiring prolonged standing which caused Increased pain to his knees. The veteran was not able to continue that job due to the fact that it caused increased knee pain. The veteran is able to sit but would require periodic breaks where he could stretch and stretch the knees. It seems that due to his knee problems and hernia surgeries that he has had difficulty with physical employment. The veteran seems able to sit which may deem him appropriate for some type of sedentary employment. In the April 2008 VA examination for joints, the VA examiner stated his opinion as follows: OPINION: My opinion is that in regards to his left knee that he should be able to obtain or maintain employment consistent with his education which is high school plus a few college classes and occupational experience even if this does mean a sedentary job. He lives by himself. He is able to do all his activities in daily living including driving shopping and et cetera. So my rationale is minimal disability seen on exam. A very mild disease on x-ray. The ability to do his activities of daily living including driving should allow him to do a sedentary job[.] I would say that only in terminal flexion from 120 to 130 degrees he has any evidence of pain. There is no evidence of fatigue weakness or lack of endurance following repetitive use[] I described above and therefore I can find no structural abnormalities of his left knee other than very mild arthritis on x-ray that may be age appropriate that would have any functional impact on his ability to obtain gainful employment even if that employment is sedentary. The March 2014 VA examiner’s opinion on individual employability states: The patient is currently incarcerated. He last worked in janitorial service prior to incarceration. As this is physical work, it [is] highly unlikely the patient could go back to that type of work. He cannot stand and/or walk for extended periods and should not attempt climbing. [H]e has no contraindication, based on his knee disability, to sedentary employment. The September 2016 VA examiner for knee and lower leg conditions stated the functional impact on the Veteran’s ability to perform occupational tasks to be he would not be candidate for employment requiring running, kneeling/squatting and/or prolonged walking. In the October 2019 VA examination, the VA examiner offered the following opinion regarding individual employability: The Veteran’s SC [service-connected] knee condition would not prohibit him from maintaining work, especially in a sedentary capacity. The Veteran’s knee condition would make any type of physical work prohibitive. However, he would be able to maintain sedentary function such as office work, answering phones without significant accomodation. For this examination, the left knee was stable, without significant tenderness. The record does not show that he is getting any current care for the left knee which would impact his ability to attend work. His medications include NSAIDS [nonsteroidal anti-inflammatory drugs] and low dose tramadol which would not significantly impact his ability to maintain work as side effects are minimal. He is not currently using any assistive devices for ambulation and was able to walk more than 50 feet twice on observed ambulation without instability or loss of pace. He is independent in ADLS [activities of daily living], IADLS [instrumental activities of daily living] including driving which is consistent with the ability to maintain work in a sedentary environment. Additionally, the Board has considered carefully the Veteran’s August 2007 Board hearing testimony and statements of his representative, given on the Veteran’s behalf. In his testimony, the Veteran expressed his eagerness to return to some kind of work, but then posed the question, “who’s going to hire a man who has to get up and stretch his knee every 45 minutes at least, walk around and not being a productive member of the workforce.” The Veteran also testified that, when he could no longer perform the duties of mail handler, “I would have had to give up to transfer to another craft that didn’t know if I could handle it there, and they would have to accept you even to work that craft.” The Board understands this to mean, although he might be assigned a different employment designation with different tasks, he would be uncertain if he could perform those unfamiliar tasks. The Board believes it has grasped both points. However, as already stated at the beginning of this decision, the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough to warrant TDIU. A high rating in and of itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the veteran, in considering his or her service-connected disabilities, can perform the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). By reasonable extension to the Veteran’s second point above, the same applies. If the Veteran feels even if he is able to obtain a different position in the postal service, but he is uncertain of his future performance and, therefore, he will not seek a different opportunity on offer in the postal service, this perception of such difficulty to obtain something “suitable” is not in and of itself enough to warrant TDIU. The Veteran’s representative pointed out that, having earned approximately $30,000 a year in the postal service, “he’s not going to sit there… and have [to] take a position at $20,000. It’s not going to pay the bills. It’s not going to cover like his house bills, his car payments. That does cause a financial hardship on him.” The Board notes, as stated earlier, that “substantially gainful employment” is defined as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to the veteran’s earned annual income. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran’s earned income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Marginal employment, odd-job employment and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. See 38 C.F.R. § 4.17 (a). However, no evidence establishing the foregoing has been submitted for the Board to review and consider. The Veteran, in effect, has concluded first that he unable to do any work, then has stated, if there were lesser employment, he would not take it. As such, the record offers no basis on which the Board can make a fact-based, adjudicatory determination of any past or recent employment which may have been marginal. At the August 2007 Board hearing, the Veteran’s representative asserted that a new VA examination “is in order to assess the effect of the left-knee disorders have “on his back and his other knee as well, and a clear statement of what the possibility is of him securing employment.” However, the record shows since the hearing there have indeed been examinations, which have produced finding for both knees in September 2016 and as recently as October 2019, as well as April 2009 and October 2019 examinations for lumbar-spine. As the record now stands after these examinations, the Veteran is not service connected for right-knee disorder, as secondary and/or aggravated by left-knee disorder, nor has a lumbar-spine disorder been service connected on the same basis. Moreover, as just summarized above, there have been numerous VA knee examinations which have included individual employability assessments and opinions. The summary of the record shows that no findings in the record for left-knee osteochondritis and for left-knee degenerative joint disease satisfy the criteria under the relevant several diagnostic codes for a higher evaluation. Additionally, the Board notes 4 out of the 5 employability opinions in the VA examination for knee between February 2005 and October 2019 state unequivocally that the Veteran retains functionality and capacity for sedentary employment. The September 2016 VA examiner stated, “he would not be candidate for employment requiring running, kneeling/squatting and/or prolonged walking,” and the Board will conclude from this what is self-evident, that he did not exclude sedentary tasks. However, the Board further notes the “concept” sedentary work is absent from 38 C.F.R. § 4.16, the pertinent regulation addressing and implementing TDIU. As sedentary work is not addressed in that regulation, it follows that it remains undefined and, at the very least, some explanation should be provided to supply the reasoning as to how the above conclusions of medical professionals as to the Veteran’s remaining capacity for sedentary work relate to the medical and vocational evidence of record, as well as the Veteran’s specific history of education and work. The United States Court of Appeals for Veterans Claims (the Court) has held “the meaning of sedentary work must be determined from the particulars of the medical opinion in which the term is used.” Withers v. Wilkie, 30 Vet. App. 139, 147 (2018). Looking to the opinions regarding employability set forth above, the defining information provided in the February 2005 opinion is the Veteran can sit but would require periodic breaks during which “he could stretch and stretch the knees.” The April 2008 VA examiner twice mentioned the Veteran can do all activities of daily living, including driving. From this central finding, he concluded “this should allow him to do a sedentary job, further finding “only in terminal flexion from 120 to 130 degrees he has any evidence of pain.” The March 2014 VA examiner found the Veteran “has no contraindication, based on his knee disability, to sedentary employment.” The October 2019 VA examiner found no left-knee instability and noted the Veteran has no current care for left knee, his only medications are nonsteroidal anti-inflammatory drugs and tramadol, he uses no assistive devices, and the VA examiner twice observed the Veteran walk 50 feet without instability or loss of pace. He further noted the Veteran “is independent” in activities of daily living, including driving. He concluded that these findings and observations are consistent with the ability to work in “a sedentary environment.” As a factual finding, the Board concludes from the above opinions, first, “sedentary work” is when the Veteran would be comfortable, but not necessarily pain-free; it is an environment consistent with the performance of routine activities of daily living; being sedentary would not exclude walking, commensurate with the level of disability described by the October 2019 VA examiner; and it would not exclude driving. In short, what the Veteran can do and does each day to maintain his standard of personal efficiency and well-being, while avoiding exacerbating left-knee pain and limited movement, is not inconsistent with occupational tasks which would require similar or identical mental and physical facility, performed under the same self-imposed restrictions pertaining to the left knee. The Board therefore finds the Veteran’s remaining capacity for sedentary work was reasonably arrived at by the VA examiners and their conclusions correspond with the medical evidence of record, as well as with the Veteran’s education, training and occupational experience. As such, “sedentary work,” as they understand it, is consistent with what is provided in the regulation addressing TDIU. See 38 C.F.R. § 4.16. Additionally, the Veteran’s prospects of sedentary employment are further enhanced by an educational history which includes not only completion of high school, but enrollment in college-level classes. Once again, this is consistent with an identifiable functional capacity to perform sedentary work. However, the Board is mindful that greater specificity is necessary for this determination, as, for example, the sedentary work of a truck driver may demand greater physical exertion, particularly so in the lower extremities, than the sedentary work of a computer programmer. Nonetheless, what would qualify a prospective employee for the latter or similar position, beyond upper-extremity dexterity, would be, by way of example and in the broadest sense, the ability to organize both material accessible on databases or “hard-copy” files, but also such an ability regarding one’s thoughts. Additional education, that is to say, “higher” education, would have, at the very least, introduced an enrollee to relevant thought processes. Lastly, in considering the Veteran’s vocational training since the determination of service connection for his left-knee disorders, although the Veteran filed a VA Application for Vocational Rehabilitation in May 1985, there is no further documentation in the record showing the Veteran in fact ever took advantage of VA’s vocational rehabilitation program or a similar employment eligibility program implemented by the Social Security Administration, from which the Veteran received a January 1996 fully favorable decision for benefits, which considered, among other disabilities, the Veteran’s left-knee disorders. Yet, such programs exist to provide expert guidance on how most to leverage training, experience and education skills for prospective employment after disabilities have been incurred. The Board finds the preponderance of the evidence does not show that left-knee disorders in conjunction with the Veteran’s other service-connected disabilities (left-knee scars) produce total occupational impairment. Additionally, in regard to extraschedular consideration, for the reasons already stated and which address the Veteran’s specific points brought out during the Board hearing, there are no exceptional aspects associated with the Veteran’s disabilities. They are serious and preclude occupational tasks regarding standing and walking, whether prolonged or not, and a series of other maneuvers pertaining to bending the knees, but, according to examination reports and opinions of 5 VA medical professionals over the course of nearly 15 years, as well as the Board’s considerations as set forth at great length above, sedentary work remains a feasible and appropriate opportunity for employment. After considering the totality of the record, the Board finds the preponderance of the evidence reflects that the Veteran’s service-connected disabilities alone do not preclude him or an average person from securing and following a substantially gainful occupation, nor does the record reveal exceptional aspects associated with the Veteran’s disabilities to warrant referral to the Director of the Compensation Service for extraschedular consideration under 38 C.F.R. § 4.16 (b). The Board has already addressed much of the Veteran’s lay evidence, given as testimony in the August 2007 Board hearing. However, the Board will further state that it has also carefully considered the May 2008 lay statement of L.J. and any other lay statements of the Veteran, as well as his numerous reports to treatment providers, as they appear throughout the record. The Board is well aware that lay persons are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran and others are competent to provide statements of symptoms which are observable to their senses and there is no reason to doubt their credibility. However, the lay evidence of L.J., of the Veteran, and, as shown above, the Veteran’s Board hearing testimony, must in turn be weighed against other evidence, as all relevant evidence of varying kinds must be considered. The Board has assigned substantial probative value to the findings of the February 2005, April 2008, March 2014, September 2016, and October 2019 VA examination reports and opinions, as they were conducted by medical professionals after objective examinations and assessments of the Veteran, they indicate a thorough review of the Veteran’s medical history and their orthopedic findings have exhibited unvarying consistency. See generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in assessing the adequacy of an opinion is whether the examiner was informed of the relevant facts in rendering a medical opinion). The Veteran is competent to report left-knee pain, but the record does not indicate he possesses the highly specialized education, training and clinical experience to be able to identify with precision greater left-knee disability, based on the rating criteria in the various diagnostic codes discussed above. Moreover, he is competent to report expressive aphasia, but, for the same reason, is not competent to determine the origin and cause of that disorder; nor without assertions based on his direct observations and understanding, is he competent to judge the sufficiency of hospital care, medical or surgical treatment or examination, or identify carelessness, negligence, lack of proper skill, or error in judgment in implementing that care, treatment or examination.   The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. As the preponderance of the evidence is against the claims, the doctrine is not applicable and the claims must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Franke, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.