Citation Nr: 21001675 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 16-30 468 DATE: January 11, 2021 ORDER A disability rating in excess of 10 percent for status post right fibular fracture with tendonitis, degenerative arthritis, and shin splints (“right leg disability”) is denied for the entire initial rating period prior to July 27, 2020. A 30 percent disability rating for the right leg disability is granted from July 27, 2020. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. REFERRED The issues of entitlement to service connection for right hip, right ankle, and right foot disabilities were raised in a July 2019 statement and are referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDINGS OF FACT 1. Prior to July 27, 2020, the Veteran’s right leg disability manifested no more than slight knee disability. 2. From July 27, 2020, the Veteran’s right leg disability manifested marked knee disability. 3. The Veteran’s only service-connected disability is the right leg disability, evaluated as 10 percent disabling prior to July 27, 2020, and as 30 percent disabling thereafter, and the evidence does not indicate that he is rendered unable to secure or maintain substantially gainful employment as a result of his service-connected disability. CONCLUSIONS OF LAW 1. Prior to July 27, 2020, the criteria for an initial disability rating in excess of 10 percent for the right leg disability were not met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5010-5262. 2. Resolving reasonable doubt in favor of the Veteran, the criteria for a 30 percent disability rating for the right leg disability have been met from July 27, 2020. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5010-5262. 3. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the Appellant in this case, had active service from June 1980 to April 1987. This matter comes before the Board of Veterans’ Appeals (BVA or Board) from a January 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran provided testimony at a July 2019 videoconference hearing before the undersigned Veterans Law Judge at the Montgomery RO. A transcript of the hearing is associated with the claims folder. In December 2019, the Board remanded the case for further development. The development requested having been completed, the case is now appropriate for appellate review. Disability Rating 1. A disability rating in excess of 10 percent for status post right fibular fracture with tendonitis, degenerative arthritis, and shin splints (“right leg disability”) is denied for the entire initial rating period prior to July 27, 2020. 2. A 30 percent disability rating for the right leg disability is granted from July 27, 2020. The right leg disability claim has a unique procedural history. In April 2010, the Veteran filed an initial claim of entitlement to service connection for a right leg disability. In a July 2010 rating decision, the RO denied the claim. The Veteran filed a request for reconsideration of the July 2010 rating decision in July 2011, as well as a VA Form 21-526 in September 2011. In a July 2013 rating decision, the RO denied reopening of the claim of entitlement to service connection for a right leg disability, finding that no new and material evidence had been received to demonstrate a nexus to service; however, the accompanying Codesheet of the same date lists “status post right fibular fracture” as a service connected disability, with a noncompensable, or zero percent, rating, assigned from September 29, 2011, the date the VA Form 21-526 was received. The February 1, 2013 notification letter also indicates that service connection for a right leg disability was granted, and that a noncompensable disability rating was assigned. In August 2013, the Veteran filed a request for an increased rating, and in a January 2014 rating decision, the RO continued a noncompensable disability rating. The Veteran filed a timely notice of disagreement, and in a June 2016 Statement of the Case (SOC), the RO granted a 10 percent disability rating for the right leg disability, effective from April 8, 2010, the date of the Veteran’s initial claim for service connection. The RO explained that the new effective date (April 8, 2010) was based on the fact that the Veteran had filed his claim for an increased rating (August 8, 2013) within one year of the grant of service connection in the January 2013 rating decision. The Board agrees with this characterization of the claim and has therefore considered this as an initial disability rating claim. In an October 2020 Supplemental Statement of the Case (SSOC), the RO granted a higher 20 percent disability rating, effective from July 27, 2020. In sum, the Veteran in is receipt of a 10 percent disability rating for his right leg disability from April 8, 2010, and a 20 percent disability rating from July 27, 2020. He contends that he is entitled to higher ratings due to the pain and functional limitations he experiences as a result of his right leg disability. For the reasons discussed below, the Board finds that the weight of the evidence is against the assignment of a disability rating in excess of 10 percent for the right leg disability prior to July 27, 2020; however, the evidence is at least in equipoise as to whether a 30 percent disability rating is warranted thereafter. Disability evaluations (ratings) are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). Painful motion is considered limited motion at the point that the pain actually sets in. See VAOPGCPREC 9-98. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to the affected joints. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. 38 C.F.R. § 4.59. The diagnostic codes relevant to knee disabilities are 5003, 5010, and 5257-5261. 38 C.F.R. § 4.71a. The VA General Counsel has interpreted that a veteran who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257. See VAOPGCPREC 23-97. Likewise, the VA General Counsel has also interpreted that, when X-ray findings of arthritis are present and a veteran’s knee disability is evaluated under DC 5257, the veteran would be entitled to a separate compensable evaluation under DC 5003 if the arthritis results in limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98. Furthermore, to warrant a separate rating for arthritis based on X-ray findings and limited motion under DCs 5260 or 5261, the limited motion need not be compensable but must at least meet the criteria for a zero-percent rating. A separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. DC 5010 is for arthritis due to trauma, substantiated by X-ray findings and provides for rating as degenerative arthritis. 38 C.F.R. § 4.71a, DC 5010. DC 5003 provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200, etc.). When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Also relevant to this case is DC 5262. Under this diagnostic code, which contemplates tibia and fibula impairment, malunion with a slight knee or ankle disability warrants a 10 percent rating; malunion with a moderate knee or ankle disability warrants a 20 percent rating; and malunion with a marked knee or ankle disability warrants a 30 percent rating. Evidence of nonunion of the tibia and fibula with loose motion requiring a brace warrants a 40 percent evaluation. 38 C.F.R. § 4.71a. Reviewing the most relevant evidence of record, at the outset, the Board notes that in 2009, the Veteran suffered a right hemisphere cerebrovascular accident (CVA), which resulted in significant functional limitations. To the extent that the Board is unable to distinguish functional limitations resulting from the CVA versus the right leg disability, the Board has attributed any such limitations to the right leg disability. 38 C.F.R. § 3.102; see also Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam) (when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability). A March 2010 Compensated Work Therapy medical evaluation note indicates that the Veteran was not restricted with regard to heavy lifting (greater than 50 lbs.), sitting, standing, walking, climbing stairs, bending/stooping/kneeling, and pulling/pushing. On his May 2010 application for Social Security Disability benefits, the Veteran indicated that since his stroke in 2009, he had difficulty with lifting, squatting, bending, standing, reaching, walking, kneeling, and stair climbing because he had limited use of his left side. At a June 2010 VA knee examination, the Veteran reported right knee pain and stated that he had intermittent right knee problems since his fibula fracture in service. Since his right hemisphere CVA in 2009, he reported increased problems with pain in ambulation in the right knee due to increased reliance on the right side of his body. The course since onset was progressively worse. He took several pain medications with fair response. He reported right knee pain, stiffness, and decreased speed of joint motion, but denied deformity, giving way, instability, weakness, incoordination, episodes of dislocation or subluxation, locking episodes, effusions, inflammation, or flare-ups. There were no constitutional symptoms of arthritis. The Veteran was able to stand for 15 to 30 minutes and unable to walk more than a few yards. He did not use any assistive devices. On physical examination of the right knee, there was tenderness, pain at rest, and guarding of movement. The Veteran had an antalgic gait, which was attributed to the CVA and not the right leg disability. There was also crepitus, but no clicks or snaps, grinding, instability, or meniscal abnormalities. There was subpatellar tenderness. Right knee flexion was to 110 degrees and extension was unlimited, with objective evidence of pain (with no notation as to at what point the pain began). Following three repetitions, flexion was limited to 105 degrees and extension remained unlimited. The examiner stated that this additional limitation was due to fatigue. An x-ray study showed mild narrowing of the medial tibiofemoral joint space. The examiner diagnosed mild degenerative arthrosis of the right knee, resulting in right knee pain, with no effects on sports, recreation, traveling, feeding, bathing, grooming, or driving, and mild effects on chores, shopping, and exercise. The examiner stated that most of his limitations in activities of daily living were due to residuals from his stroke, and not his right knee disability. The examiner provided a negative nexus opinion with regard to the right knee arthritis, reasoning that both knees showed arthritis, that no residuals of the in-service right fibular fracture were seen on x-ray study, and that the arthritis was more likely the result of usual age-related changes in the knees. In a July 2010 letter, the Veteran stated that, due to his stroke, he carried most of his body weight on his right side, which caused increased right knee pain. Due to his right knee pain, he stated he was unable to lift or carry things and required help to do many of the tasks he used to perform independently. On a September 2011 VA Form 21-526, the Veteran stated that he had right knee pain, resulting in difficulty moving, and that he used a walking stick and a knee brace. He reported chronic right knee pain when walking. A February 2012 VA treatment note indicates the Veteran reported some knee pain and burning down his right leg. There was mild crepitus in the right knee, with no tenderness to palpation. He was given a trial of naproxen for joint pain consistent with degenerative joint disease, and the clinician recommended walking with cane to ease burden of compensation for left leg weakness. An April 2012 VA treatment note indicates he was trained in the use of a knee brace. The Veteran was afforded another VA knee examination in January 2014. He reported increased pain and stiffness since the last examination. He denied flare-ups. Flexion was to 115 degrees with pain beginning at 100 degrees, and extension was unlimited with no objective evidence of painful motion. After three repetitions, range of motion remained the same and there was no additional functional loss. Functional impairment of the right knee included pain on movement. There was tenderness to palpation of the right knee. Joint stability testing was normal. There was no evidence or history of recurrent patellar subluxation or dislocation, and there were no shin splints. There were no meniscal conditions. The Veteran used a brace and a cane constantly; the brace was used for right knee pain, and the cane was used for stroke residuals. The examiner stated that the knee condition did not impact the Veteran’s ability to work. An August 2016 VA treatment note indicates the Veteran began acupuncture treatment for his right knee pain. An April 2018 VA treatment note indicates the Veteran reported intermittent pain and swelling in his right knee and stated that he wore a right knee brace on a daily basis when he walked outside. His pain was treated with hydrocodone as needed. A July 2019 letter from the Veteran’s attorney indicated that the Veteran’s knee disability affected his ability to walk and stand. At the July 2019 Board hearing, the Veteran testified that he experienced a lot of pain in his right leg, as well as stiffness in the morning; sometimes he was unable to get up because the right leg was numb. He testified that the right knee popped, especially with weather changes, and that he had difficulty kneeling. He stated that he had used a cane and brace on a daily basis for many years. At home, he sat in a recliner most of the day and sometimes got others to help him with preparing meals, washing clothes, and other household chores, which he was unable to do due to his right leg pain. He took medication for pain relief a couple of times a day. He denied having any falls lately. Pursuant to the Board’s December 2019 remand, the Veteran was afforded another VA knee examination in July 2020. Diagnoses were right knee strain (7/23/86), right knee tendonitis (7/27/20), right shin splints (7/27/20), degenerative arthritis (2010), and fracture of the right fibula (7/23/86). The examiner noted that the Veteran sustained a fracture of the right fibula in 1986 during active service. Service treatment records also noted a small fracture of the right tibia, swollen and painful knee with abrasion, and possible tear of lateral collateral ligament. In 2010, the Veteran was diagnosed with mild degenerative arthritis of the bilateral knees. Current symptoms included daily pain in the right knee, mostly below the knee, achy in quality, ranging from 8/10 to 10/10, intermittent swelling of the right knee, shin splints, imbalance, and weakness of the right lower leg. The Veteran stated that he needed to use a cane, and that the knee gave way and popped sometimes. He reported numbness and tingling in the right foot, and stinging pain in the right foot; the examiner noted that he had been diagnosed with Parkinson’s disease. The Veteran stated the right leg pain flared up twice a month, usually if he stood and walked more than usual. When these flare-ups occurred, he had to stay in bed for a couple of days and take pain medicine. With regard to functional loss, the Veteran stated he was unable to run, stoop down too low, squat or kneel, climb stairs, walk more than 50 yards, or stand for more than a couple of minutes, and that he needed help to carry things. He said that he stayed in a recliner most of the time but got up every 30 minutes or so to stretch. He stated he could not walk on uneven ground, and that his mom helped him get around the house. On physical examination, flexion of the right knee was to 52 degrees, and extension was unlimited. The examiner stated that range of motion itself did not contribute to functional loss. There was pain in both flexion and extension and the examiner stated that such pain did cause functional loss. There was tenderness at the medial and lateral joint line, over the patella and patellar tendon, moderate in severity. There was pain with weight-bearing and crepitus. After three repetitions, flexion of the right knee remained at 52 degrees, and extension was limited to 3 degrees. The examiner stated that pain, fatigue, weakness, and lack of endurance all caused additional functional loss after repeated use. The examiner estimated that flexion would be limited to 45 degrees and extension to 5 degrees after repeated use over time and during flare-ups. Additional factors contributing to disability included less movement than normal due to ankylosis, adhesions, etc., weakened movement due to muscle injury or peripheral nerve injury, swelling, deformity, instability of station, disturbance of locomotion, interference with sitting, interference with standing, interference with taking stairs, climbing ladders, walking on uneven surfaces, lifting and carrying heavy loads, stooping, squatting, and kneeling. Weakened and painful limitation of motion was noted. Swelling/deformity of the right knee was noted. Diagnosed conditions interfered with prolonged sitting, standing and walking, with taking stairs, climbing ladders, walking on uneven surfaces, lifting and carrying heavy loads, stooping, squatting, and kneeling, and caused imbalance. There was some muscle weakness, but this was attributed to Parkinson’s disease and status post CVA. There was no muscle atrophy. There was no ankylosis. There was no history of recurrent subluxation or lateral instability, but there was intermittent right knee swelling. Joint stability testing was normal. With regard to the Veteran’s right shin splints, the examiner stated that it affected knee range of motion but not the ankle, and that the Veteran experienced pain in anterolateral lower right leg, worse with prolonged standing and ambulation. There were no meniscal conditions. The Veteran used a brace and cane constantly due to his diagnosed knee conditions. The examiner noted that a June 2010 x-ray study showed degenerative joint disease of the right knee, directly related to his diagnosed conditions. With regard to the effect on occupational tasks, the examiner stated that the diagnosed conditions interfered with prolonged sitting, standing and walking, taking stairs, climbing ladders, walking on uneven surfaces, lifting and carrying heavy loads, stooping, squatting, kneeling, working on heights, operating machinery and driving for extended periods of time. Correia criteria were addressed, as the examiner noted pain when the right knee was used in non-weight-bearing, and passive range of motion was noted to be 0 to 55 degrees. The examiner stated that the diagnoses of shin splints, knee strain, knee tendonitis, and degenerative arthritis were added as related to the service-connected diagnosis of right fibular fracture, reasoning that the current findings and diagnoses were consistent with the mechanism of injury to the right knee and the right lower extremity as documented in the service treatment records. Degenerative arthritis developed after the trauma due to increased wear and tear of the joint. On the question of whether the Veteran is entitled to a higher rating for his right leg disability, the Board notes that arthritis and limitation of motion, including motion limited by pain and other orthopedic factors indicated at 38 C.F.R. §§ 4.40, 4.45, 4.59, and DeLuca are to be rated as part of one disability. See 38 C.F.R. § 4.71a, DCs 5014, 5003. Instability of the knee, which does not include painful limitation of the knee as part of the rating criteria, is a distinct disability. See VAOPGCPREC 23-97 and 9-98. In this case, the right leg disability has been evaluated under DCs 5010-5262. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. See 38 C.F.R. § 4.27. The hyphenated diagnostic codes in this case indicate that traumatic arthritis, under DC 5010, was the service-connected right leg disorder, while the residual condition is impairment of the tibia and fibula, which is evaluated under 38 C.F.R. § 4.71a, DC 5262. The Board notes that the right leg disability was previously evaluated under DCs 5260-5262, with DC 5260 contemplating limitation of flexion of the knee. After a review of all the evidence, lay and medical, the Board finds that the weight of the evidence is against a disability rating in excess of 10 percent for the initial rating period prior to July 27, 2020. Namely, prior to July 27, 2020, the weight of the evidence is against a finding of moderate knee disability. Prior to July 27, 2020, the right leg disability manifested knee flexion limited to no worse than 100 degrees, and unlimited extension, taking painful motion and limitation following repetitive use into account. Such limitation in flexion and extension does not even meet the criteria for noncompensable disability ratings under DCs 5260 and 5261, respectively. Moreover, joint stability testing was consistently normal, nor were there reports of instability. The 2010 VA examiner stated that most of the Veteran’s limitations in his activities of daily living were attributable to his CVA and not the service-connected right leg disability. The 2014 VA examiner also stated that the right leg disability had no impact on the Veteran’s ability to perform occupational tasks, and attributed the use of a cane for ambulation to the non-service-connected CVA. Thus, the Board finds that the weight of the evidence is against a finding that the Veteran’s right leg disability manifested moderate knee disability at any time prior to July 27, 2020, and, therefore, is against a disability rating in excess of 10 percent prior to July 27, 2020. However, after a review of all the evidence, lay and medical, resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence is at least in equipoise as to whether there has been marked right knee disability since July 27, 2020, and, therefore, finds that a 30 percent disability rating is warranted from that date. From July 27, 2020, the right leg disability manifested knee flexion to no worse than 45 degrees, and extension to no worse than 5 degrees, taking painful motion and limitation following repetitive use into account. Such limitations in flexion and extension would equate to a 10 percent disability rating under DC 5260 for limitation of flexion and a noncompensable disability rating under DC 5261, weighing against a finding marked knee disability. Moreover, while the Veteran reported occasional giving way of the right knee at the July 2020 VA examination, joint stability testing was negative. However, the 2020 VA examiner described extensive limitations due to the right leg disability, including limitations in prolonged sitting, standing and walking, with taking stairs, climbing ladders, walking on uneven surfaces, lifting and carrying heavy loads, stooping, squatting, and kneeling, and stated that the right leg disability caused imbalance. In light of these limitations as well as the Veteran’s description of chronic pain, even with consideration of the evidence weighing against a higher rating, the Board has resolved reasonable doubt in favor of the Veteran and finds that a 30 percent disability rating for the right leg disability is warranted from July 27, 2020. In addition to the reasons weighing against the grant herein, the Board finds that an even higher 40 percent rating is not warranted as there is no evidence of nonunion of the tibia and fibula. The Board has considered whether any alternate diagnostic codes might serve as a basis for a higher rating for any part of the initial rating period on appeal. However, the evidence has not demonstrated knee ankylosis, a meniscal condition, or genu recurvatum; thus, DCs 5256, 5258, 5259, and 5263 do not apply. In addition, as noted above, although the Veteran reported that his right knee sometimes gave way at the 2020 VA examination, joint stability testing has been consistently negative throughout the initial rating period; therefore, DC 5257 does not provide for a higher rating. Finally, for the reasons discussed above, DCs 5260 and 5261, for limitation of flexion and extension, respectively, do not provide for higher ratings. There are no other applicable codes available for consideration. In denying an even higher disability rating, except as otherwise provided herein, the Board has considered the Veteran’s statements that his right leg disability is worse, as well as his reports of pain and functional limitations. While he is competent to provide evidence regarding matters that can be perceived by the senses, he is not shown to be competent to render medical opinions regarding whether his symptoms meet the next higher rating criteria under VA regulations. Such competent evidence concerning the nature and extent of the Veteran’s leg disability has been provided by the medical personnel who have examined him during the current appeal. The medical findings (as provided in the examination reports and clinical records) directly address the criteria under which this disability is evaluated. The specific clinical measures of ranges of motion, including examiners’ findings and opinions regarding additional limitations of motion due to such factors, have been weighed and considered by the Board. Such specific measures and findings are of more probative value in determining specific ranges of motion than are general histories or general descriptions of symptoms of pain or limitations, such as this Veteran’s report of pain and functional limitations. Thus, the overall evidence does not show that pain or other factors have resulted in additional functional limitation or instability such as to enable a finding that the disability picture more nearly approximates a disability rating in excess of 10 percent under DC 5262 prior to July 27, 2020, or in excess of the 30 percent disability rating assigned herein from July 27, 2020. The Board emphasizes that, despite the Veteran’s contention of a debilitating right leg disability, the 10 percent and 30 percent disability ratings indicate a significant impact on his functional ability. Such disability evaluations assigned by VA recognize his painful motion and functional limitations, indicating very generally a 10 and 30 percent reduction in his ability to function, respectively, due to his right leg disability. The critical question in this case, however, is whether the problems he has cited meet even higher levels under the rating criteria. For reasons cited above, the Board finds they do not. In sum, the weight of the evidence is against a disability rating in excess of 10 percent for the right leg disability prior to July 27, 2020. However, resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence is at least in equipoise as to whether a 30 percent disability rating is warranted for the right leg disability from July 27, 2020. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and, hence, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). TDIU 3. A TDIU is denied. The Veteran contends that he is unable to work due to his service-connected disability. For the reasons discussed below, the Board disagrees and finds that a TDIU is not warranted. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). 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). Consideration may be given to his or her level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Substantially gainful employment is work that is more than marginal, which permits the individual to earn a “living wage.” See Moore v. Derwinski, 1 Vet. App. 356 (1991). In reaching a determination of TDIU, it is necessary that the record reflect some factor which takes his case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15; Van Hoose, 4 Vet. App. 361. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994). In this case, the Veteran contends that he is unemployable due to his service-connected disability. In his September 2011 VA Form 21-526, he stated he was unable to work due to his right knee pain, and that since 1987, he had only worked about two years due to his chronic pain while walking. He has not submitted a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, despite the RO’s request that he provide the information contained in that form in a June 2020 letter. However, at the July 2019 Board hearing, he testified that he last worked in 2015. In addition, the Social Security Administration (SSA) awarded him Social Security Disability (SSD) benefits effective from April 27, 2010, and on his application for SSD benefits, he indicated that he had last worked in 2008 as a pipe layer. Service connection is in effect only for the right leg disability discussed herein, evaluated as 10 percent disabling prior to July 27, 2020, and as 30 percent disabling thereafter. Thus, the combined schedular rating criteria for consideration of TDIU under 38 C.F.R. § 4.16(a) are not met because he does not have one service-connected disability with an evaluation of at least 60 percent, or two or more disabilities with a combined rating of at least 70 percent with one disability rated at 40 percent. A TDIU evaluation can still be awarded if it is established by the evidence of record that the service-connected disability has rendered a veteran unable to secure and follow substantially gainful employment. If this is established, the case is to be sent to the Director of the Compensation Service for extraschedular consideration. See 38 C.F.R. §§ 3.340(a), 3.341(a), 4.16(b). After a review of all the evidence, the Board concludes that the weight of the evidence demonstrates that referral to the Director of Compensation Service for consideration of an extra-schedular TDIU is not warranted for any part of the period on appeal. In this regard, the preponderance of the evidence is not indicative of a finding that the Veteran was unable to secure or follow substantially gainful employment due to his service-connected disabilities. As noted above, a March 2010 Compensated Work Therapy medical evaluation note indicated that the Veteran was not restricted with regard to heavy lifting (greater than 50 lbs.), sitting, standing, walking, climbing stairs, bending/stooping/kneeling, and pulling/pushing. Further, the clinician indicated that, in view of the Veteran’s medical history, medications, and areas reported as “limited” or “restricted,” no special accommodations were needed regarding his ability to work. On his May 2010 application for Social Security Disability benefits, the Veteran indicated that since his stroke in 2009, he had difficulty with lifting, squatting, bending, standing, reaching, walking, kneeling, and stair climbing because he had limited use of his left side, a residual of his 2009 non-service-connected CVA. An August 2010 SSA Disability Determination and Transmittal indicates that the Veteran was awarded SSD benefits effective from April 27, 2010, for primary diagnoses of affective/mood disorders and secondary diagnoses of psychoses and paranoid features. The accompanying SSA Explanation of Determination indicates that SSA determined that the Veteran’s stroke, depression, and anxiety caused severe impairment and that those impairments significantly affected his ability to perform work-related activities. There was no mention of the right leg disability in its determination explanation. Similarly, an August 2010 Alabama Disability Determination Service Vocational Rationale Form indicates that the Veteran’s past work would be ruled out because he would not respond appropriately to his supervisor or coworkers and would miss 3 to 4 days of work per month due to his symptoms of mental impairment. None of the Veteran’s treating or examining physicians have indicated that his right leg disability prevents him from working. For instance, as noted above, the June 2010 VA examiner stated that most of his limitations in his activities of daily living were due to his CVA. The January 2014 VA examiner stated that the right leg disability did not impact his ability to work. Further, even though the 2020 VA examiner listed a number of physical limitations, discussed in detail above, due to the right leg disability, he did not indicate that the Veteran was prevented from working. In sum, the percentage criteria set forth at 38 C.F.R. § 4.16(a) have not been met, and the evidence does not demonstrate that referral under 38 C.F.R. § 4.16(b) to the Director of Compensation Service for consideration of an extra-schedular TDIU due to his service-connected right leg disability is warranted. The Board acknowledges the statements of the Veteran that he has significant functional impairment due to his service-connected right leg disability, and this is reflected in the currently assigned disability ratings. The Board does not doubt that his service-connected right leg disability causes occupational impairment. However, while the evidence certainly demonstrates that the Veteran would experience some degree of occupational impairment due to his service-connected disability, the weight of the evidence does not show that that the severity of symptoms warrants extraschedular consideration by Director of the Compensation Service. Indeed, the medical evidence and some of the Veteran’s own statements, discussed above, suggest that the non-service-connected CVA and psychiatric symptoms are the primary source of his occupational limitations. Moreover, no physician has opined that he is unemployable due to his service-connected right leg disability. As such, the preponderance of the evidence is against the Veteran’s claim. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Sherrard, 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.