Citation Nr: 21011097 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 10-38 154 DATE: February 26, 2021 ORDER Entitlement to a rating greater than 40 percent for residuals of a right femur fracture with right knee and hip disability, is denied. Entitlement to a compensable disability evaluation for residuals of a fracture, right tibial plateau, is denied. Entitlement to a compensable rating for fracture of condyloid process, left mandible, is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. FINDINGS OF FACT 1. Residuals of a right femur fracture with right knee and hip disability are manifested by impairment of the tibia and fibula productive of nonunion with loss motion due to pain, but flexion no worse than 130 degrees, extension no worse than 0 degrees, no ankylosis of the hip or knee, no flail joint, hip flexion no worse than 90 degrees, hip extension no worse than 10 degrees, hip abduction no worse than 30 degrees, hip adduction no worse than 15 degrees, hip external rotation no worse than 15 degrees, and hip internal rotation no worse than 19 degrees; no nonunion of the femur with loose motion or without loose motion, no fracture of the surgical neck with false joint, and leg length discrepancy no greater than 2 centimeters. Also, no functional loss on flare-ups, no pain on nonweight bearing or passive motion, no fatigability, no weakness, no incoordination, no use of assistive devices or braces. 2. Residuals of a fracture, right tibial plateau, is manifested by no objective instability or subluxation on testing and only intermittent instability or buckling on subjective account, no locking, no meniscal condition, no effusion, no ankylosis, flexion no worse than 130 degrees, extension no worse than 0 degrees, and no functional loss on flare-ups, no pain on nonweight bearing or passive motion, no fatigability, no weakness, no incoordination, no use of assistive devices or braces. 3. Fracture of the condyloid process, left mandible, is healed without residuals; loss of use of masticatory function is not attributable to the service-connected fracture of the condyloid process, left mandible. 4. The Veteran’s service-connected disabilities do not meet the threshold requirements for TDIU, and they do not render him unemployable warranting referral to the Director of Compensation Services for extraschedular consideration. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 40 percent for residuals of a right femur fracture with right knee and hip disability have not been met. 38 U.S.C. § §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § § 3.102, 3.159, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5299 – 5262 (2019). 2. The criteria for a compensable disability evaluation for residuals of a fracture, right tibial plateau, have not been met. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010 – 5260 (2019). 3. The criteria for a compensable disability evaluation for fracture of the condyloid process, left mandible, have not been met. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.150, Diagnostic Codes 9999 – 9904 (2019). 4. The criteria for TDIU on a schedular basis are not met and referral for extraschedular consideration is not warranted. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1965 to June 1969. This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from an August 2008 rating decision issued by the Agency of Original Jurisdiction (AOJ). The Veteran testified before the undersigned Veterans Law Judge at an October 2018 hearing at the Board. A copy of the transcript is of record. The matter was previously before the Board in February 2014, July 2019, and October 2020. A supplemental statement of the case was most recently issued in November 2020. The case has since been returned to the Board for appellate review. The Board notes that the Veteran’s claims were most recently remanded so that the AOJ could make a records request to obtain any records pertaining to the Veteran from the Social Security Administration (SSA) for his knee, hip, and dental disorders. A review of the Veteran’s claims file indicates that the AOJ requested the Veteran’s records from the SSA in October 2020, and that the SSA responded that the SSA does not have any medical records pertaining to the Veteran and that the Veteran is not in receipt of Social Security Disability Insurance benefits. The Board finds that there was substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2019). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability evaluations are determined by application of the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In addition, when assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent (“flare-ups”) due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. When evaluating musculoskeletal disabilities, VA must consider whether a higher evaluation is warranted, where the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups. See 38 C.F.R. § § 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Nevertheless, pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Moreover, functional impairment must be supported by adequate pathology. Id.; Johnson v. Brown, 9 Vet. App. 7, 10 (1996) (both citing to 38 C.F.R. § 4.40). 1. Entitlement to an increased disability evaluation for residuals of a right femur fracture with right knee and hip disability, currently rated as 40 percent disabling. The Veteran is currently assigned a 40 percent disability rating for his residuals of a right femur fracture with right knee and hip disability pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5299 - 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. Unlisted disabilities requiring rating by analogy will be coded first with the numbers of the most closely related body part and “99.” 38 C.F.R. § 4.27 (2019). Under Diagnostic Code 5262, a noncompensable disability evaluation is assigned where there is impairment of the tibia and fibula without evidence of malunion of the tibia and fibula. A 10 percent disability evaluation is warranted where there is malunion of the tibia and fibula with slight knee or ankle disability. A 20 percent disability evaluation is warranted where there is malunion of the tibia and fibula with moderate knee or ankle disability and a 30 percent disability evaluation is warranted for malunion of the tibia and fibula with marked knee or ankle disability. For a 40 percent disability evaluation, nonunion of the tibia and fibula, with loose motion, necessitating a brace, is required. There is no higher evaluation available under this rating code. The Board notes that this rating provision was amended effective February 7, 2021, however, the new amendments do not provide for a rating higher than 40 percent either. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5262). Additionally, there is a Diagnostic Code governing impairment of the femur, Diagnostic Code 5255, this provision provides for a 60 percent rating for fracture of the surgical neck of the femur with flail joint, a 60 percent for fracture of the shaft or anatomical neck with nonunion without loose motion, weightbearing preserved with aid of a brace, and an 80 percent rating for fracture of the shaft or anatomical neck with nonunion with loose motion (spiral or oblique fracture). 38 C.F.R. § 4.71a, Diagnostic Code 5255 (2020). The Board notes that this Diagnostic Code was amended effective February 7, 2021, under this amendment malunion of the femur is evaluated under Diagnostic Codes 5256, 5257, 5260, or 5261 for the knee or Diagnostic Codes 5250-5254 for the hip, whichever provides the higher evaluation. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5255). Under these provision, to warrant a rating greater than 40 percent, the Veteran must show extension limited to 45 degrees rated as 50 percent disabling, (Diagnostic Code 5261); or ankylosis of the knee in flexion between 20 degrees and 45 degrees rated as 50 percent disabling or ankylosis in flexion at an angle of 45 degrees of more rated as 60 percent disabling (Diagnostic Code 5156). 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5261. With regard to the hip, the only provisions allowing for a rating greater than 40 percent are a flail joint warranting an 80 percent rating (Diagnostic Code 5254) and intermediate or unfavorable ankylosis warranting 70 and 90 percent ratings respectively (Diagnostic Code 5250). 38 C.F.R. § 4.71a, Diagnostic Codes 5250, 5254). Additionally, under Diagnostic Code 5275 governing shortening of the lower extremity, a 50 percent rating is assignable for a lower extremity 3.5 to 4 inches (7.6 centimeters to 8.9 centimeters) shorter and a 60 percent rating is assignable for a lower extremity over 4 inches (10.2 centimeters) shorter. 38 C.F.R. § 4.71a, Diagnostic Code 5275. After a review of all of the evidence, the Board finds that the weight of the evidence is against a grant of a disability rating in excess of 40 percent for the Veteran’s residuals of a right femur fracture with right knee and hip disability. Significantly, the Board finds that the September 2007, May 2008, September 2010, and February 2020 VA examination reports reflect that the Veteran’s residuals of a right femur fracture with right knee and hip disability are productive of degenerative joint disease of the right hip, with decreased range of motion and pain on motion without functional loss. None of the examinations or the available treatment records indicate any ankylosis of the knee or hip. Thus, a higher rating under Diagnostic Codes 5250 or 5256 is not available. Additionally, the worst extension of the knee noted was 0 degrees, thus, a higher rating under Diagnostic Code 5261 which requires a limit of 45 degrees is not appropriate. Further, there is no evidence of fracture of the anatomical neck, false joint, flail joint, or nonunion of the femur, warranting a higher rating under Diagnostic Code 5255. Finally, while it was noted that the Veteran’s right leg was shorter than his left leg, the largest difference measured was at the February 2020 examination, and it noted only a 2 centimeter difference which does not meet the criteria for a higher rating under Diagnostic Code 5275. As such, the Board finds that a 40 percent disability evaluation contemplates the Veteran’s report of pain and limitation of motion of the right hip. The Board has considered whether additional functional impairment due to factors such as pain, weakness and fatigability demonstrate additional limitation of motion or function to warrant a higher rating. See 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca at 206-07. To the extent that the Veteran claims that his pain upon motion is the equivalent of limited motion, the Board finds that the Veteran’s subjective complaints of pain have been contemplated in the current rating assignment; the VA examination reports indicate that the Veteran complained of pain, but physical examination did not demonstrate limitation of motion, incoordination, weakness, or fatigability. See Mitchell v. Shinseki. Further, the Veteran did not report flare-ups, and there was no pain on weight bearing, no atrophy, and normal muscle strength. Therefore, the lay and medical evidence demonstrates that the Veteran’s symptoms do not result in additional functional limitation to a degree that would support a rating in excess of the 40 percent disability rating. The evidence of record reveals manifestations consistent with a 40 percent evaluation for the entire rating period on appeal for residuals of a right femur fracture with right knee and hip disability. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 2. Entitlement to an increased disability evaluation for residuals of a fracture, right tibial plateau, currently rated as noncompensable. The Veteran is currently assigned a noncompensable disability rating for his residuals of a fracture, right tibial plateau, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5299 – 5257. See 38 C.F.R. §§ 4.20, 4.27 (2019). The Board notes that impairment of the tibia and fibula are generally rated under Diagnostic Code 5262, governing the evaluations for these conditions. However, the Veteran is already in receipt of the highest rating under this provision for his residuals of a fracture of the femur. Thus, to assign another rating under this provision would constitute impermissible pyramiding. 38 C.F.R. § 4.14. The Board notes that there is no evidence that the Veteran has an ankle disability, thus, a compensable rating under Diagnostic Code 5271 is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Turning to the Diagnostic Codes governing evaluation of the knees, as noted above, the Veteran has no ankylosis of the knee, so a compensable rating under Diagnostic Code 5256 is not assignable. 38 C.F.R. § 4.71a, Diagnostic Code 5256. There is no evidence of a meniscal condition, effusion, or locking warranting a compensable rating under Diagnostic Codes 5258 and 5259. 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259. A compensable rating under Diagnostic Code 5260 requires flexion limited to 45 degrees, and a compensable rating under Diagnostic Code 5261 requires extension limited to 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. The greatest limitation of flexion reported for the Veteran’s right knee was 130 degrees, and the greatest limitation of extension reported was 0 degrees. Thus, a compensable rating under these provisions is not warranted. Diagnostic Code 5003 provides that degenerative arthritis substantiated by x-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion. A 20 percent evaluation is warranted for x-ray evidence of involvement of 2 or more major or minor joints, with occasional incapacitating exacerbations. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. However, the Veteran’s painful motion is already contemplated in his 40 percent rating under Diagnostic Code 5262, and he has not reported experiencing any incapacitating exacerbations with regard to his right knee. Thus, a compensable rating under this provision is not warranted. With regard to instability, under Diagnostic Code 5257, governing recurrent subluxation and lateral instability, a 10 percent rating is assigned for mild impairment, a 20 percent rating is assigned for moderate impairment and a 30 percent rating is assigned for severe impairment. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020). The Board notes that these provisions were amended effective February 7, 2021, as of this date a 30 percent rating is assigned for recurrent subluxation or instability: Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation, a 20 percent rating is assigned for recurrent subluxation or instability with one of the following: (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation. (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation, a 10 percent rating is assigned for recurrent subluxation or instability with sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. For patellar instability, a 30 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker, a 20 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker, and a 10 percent is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2): A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). In VAOGCPREC 23-97 (July 1, 1997; revised July 24, 1997), VA’s General Counsel held that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, respectively. With regard to the Veteran’s current noncompensable disability rating under Diagnostic Code 5257, the Veteran reported at his May 2008 and September 2010 examinations that he had buckling of the knee and intermittent instability of the knee. No instability was noted by the Veteran at his February 2020 examination. None of the VA examinations conducted in September 2007, May 2008, September 2010, and February 2020 demonstrates objective medical evidence of instability of the right knee, all instability testing was negative, an no subluxation or instability was noted on objective examination. The Veteran denied using any assistive devices or braces. Given this evidence, the Board finds that a compensable rating for instability of the right knee is not warranted. The Board recognizes the Veteran’s reports of buckling and intermittent instability, however, these reports weighed with the objective evidence do not establish mild instability. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018) (the CAVC found that nothing in 38 C.F.R. § 4.71a Diagnostic Code 5257 “provides that objective medical evidence is required or is to be favored over lay evidence” and that lay evidence is not “categorically less probative than medical evidence” on the question of knee instability). The Veteran’s self-reports of instability fail to show more than occasional problems with giving way up to 2010 and were not noted in 2020 or any treatment records. While this evidence has probative value, in viewing the overall disability picture, the Board does not find that even considering this evidence, mild instability has been shown when considering this evidence in conjunction with the objective evidence and the lack of lay indication of instability after 2010. Thus, the Board finds that the current rating adequately compensates the Veteran for his right knee instability. Finally, with regard to functional loss, the Veteran is already being compensated for pain in the 40 percent rating assigned under Diagnostic Code 5262. As noted above, the examination reports showed no functional loss, no loss of range of motion upon repetitive use, no flare ups, no fatigability, no weakness, no incoordination, no pain on nonweight bearing, no pain on passive motion, no atrophy and normal muscle strength. Thus, the Board finds that additional compensation for functional loss of the right knee is not warranted. There is no indication that he had additional functional impairment. See DeLuca, citing 38 C.F.R. §§ 4.40, 4.45, and 4.59. In sum, a compensable disability rating for residuals of a fracture, right tibial plateau, is denied. 3. Entitlement to an increased disability evaluation for fracture of condyloid process, left mandible, currently rated as noncompensable. The Veteran is currently assigned a noncompensable disability rating for his fracture of the condyloid process, left mandible pursuant to Diagnostic Code 9999 – 9904, as analogous to DC 9904 for malunion of the mandible. Prior to September 10, 2017, Diagnostic Code 9904 provided for a noncompensable (zero percent) rating for slight displacement of the mandible; a rating of 10 percent is assigned for moderate displacement; a rating of 20 percent is assigned for severe displacement. A Note to Diagnostic Code 9904 states that the rating is dependent upon degree of motion and relative loss of masticatory function. The Board notes that as of September 10, 2017, the language of Diagnostic Codes for dental and oral conditions were revised to ensure that the rating schedule uses current medical terminology and to provide detailed and updated criteria for evaluation of dental and oral conditions for disability rating purposes. Specific to Diagnostic Code 9904, a noncompensable rating is warranted for displacement, not causing anterior or posterior open bite. A 10 percent rating is warranted for displacement, causing moderate anterior or posterior open bite. A 20 percent rating is warranted for displacement, causing severe anterior or posterior open bite. The Veteran has not been notified as to the recently changed regulations and the RO has not adjudicated the Veteran's claim under these new regulations. As any changes to Diagnostic Code 9904 represent only a clarification of the rating language and, as will be discussed in greater detail below, the Veteran’s current problems are fully medically attributable to poor dental care, the Board does not find that the Veteran is prejudiced by the Board proceeding with a decision in this case. The Veteran was afforded VA dental examinations in April 2008 and February 2020. At the April 2008 VA examination, examination showed the loss of teeth #1, 3, 5, 6, 11, 13, 14, 15, 16, 17, 19, 29, 31, and 32; there were caries present on #7, 21, and 30, root tips present on #6, 20, and 30, and crowns on #4 and 12. The VA examiner noted that the Veteran had poor oral hygiene, with moderate to advanced periodontitis. X-rays showed moderate to advanced bone loss at the root tips and that the mandibular jaw fracture healed within normal limits. Examination showed that there was no limitation upon opening, no evidence of popping or clicking indicative of temporomandibular joint (TMJ) disease; the TMJ was negative to palpation. There was deviation upon closing, where the mandibular jaw protrudes then places posteriorly to close at same interincisal location; anteriorly, the Veteran had a class I occlusion. At the February 2020 VA examination, x-rays showed that the Veteran is missing teeth #1, 3, 5, 11, 13, 14, 15, 16, 17, 19, 24, 25, 29, 31, and 32, and that he had caries present, with moderate to advanced horizontal bone loss and root tips present at #6, 7, 20, 21, 30. The mandibular jaw fracture healed within normal limits and the right and left condyle are within normal limits; there was no evidence of pathology on either side. The VA examiner noted that the Veteran asserts that he has “misalignment” of the teeth due to his service-connected fracture of the condyloid process, left mandible, but concluded that the Veteran’s “misalignment” was not caused by or a result of the Veteran’s service-connected left mandibular fracture; the VA examiner concluded that the Veteran’s complaint of misalignment and/or malocclusion of teeth and the breaking down of the Veteran’s teeth is due to a lack of adequate dental care resulting in loss of teeth to caries and periodontal disease. The VA examiner pointed out that the Veteran is missing posterior teeth, resulting in lack of posterior occlusion, and causing loss of anterior teeth, due to his poor oral health and resulting advanced periodontal disease. The VA examiner also noted that the Veteran’s extraoral examination was within normal limits; the Veteran’s TMJ was negative to palpation, and there was no popping or clicking of TMJ. The Veteran did not experience limitations on opening and closing, and there were no limitations on inter-incisal range of motion and no limitations on lateral excursions. The inter-incisal range of motion measured 35mm, right lateral excursions were over 4mm, and left lateral excursions were over 4mm as well. The Board finds that the weight of the evidence demonstrates that the Veteran’s manifestations of his service-connected fracture of the condyloid process, left mandible, most closely approximates the diagnostic criteria for the currently assigned noncompensable disability rating. The Board recognizes that there is significant loss of mastication and “misalignment” due to posterior occlusion and loss of anterior teeth; however, both VA examiners concluded that the Veteran’s complaints were entirely unrelated to his service-connected fracture of the condyloid process, left mandible, which was described by both VA examiners as well healed and without limitation on opening and closing, and that there was no pain, popping, or clicking of the TMJ. To this point, the Board reiterates that the Veteran’s posterior occlusion and loss of teeth is entirely the result of the Veteran’s periodontal disease due to poor oral health. In light of the foregoing, the Board finds that a compensable rating under DC 9904 is not warranted. Similarly, the Board finds that no other Diagnostic Code would provide for a compensable rating. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). TDIU 4. Entitlement to TDIU VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, by reason of his service- connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. A TDIU may be granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining or obtaining of substantially gainful employment. If there is only one service-connected disability, it must be ratable at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there must 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). For purposes of this section, disabilities of both upper or lower extremities will be considered a single disability. 38 C.F.R. § 4.16(a)(1). Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. Unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992). “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.’ 38 C.F.R. § 4.16(a) (2019). The Veteran seeks entitlement to TDIU based on his service-connected disabilities. As discussed above, the Veteran is in receipt of a 40 percent disability evaluation for his residuals of a right femur fracture with right knee and hip disability, a noncompensable disability evaluation for his fracture of the right tibial plateau, and a noncompensable disability evaluation for his fracture of the condyloid process, left mandible; he also in receipt of a noncompensable disability evaluation for residuals of a fracture of the 4th metacarpal of the left hand. A combined disability evaluation of 40 percent is in effect. See 38 C.F.R. § 4.25. As such, the Veteran does not meet the schedular criteria for TDIU. VA’s General Counsel has concluded that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that “unemployability” is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992). For a Veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other Veterans with the same disability rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the particular Veteran is capable of performing the physical and mental acts required by employment, not whether that Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). At the most recent, February 2020 VA examinations, the VA examiners found that the Veteran’s residuals of a right femur fracture with right knee and hip disability, fracture of the right tibial plateau, and fracture of the condyloid process of the left mandible had no functional impact on his ability to work. Moreover, the Veteran submitted a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) with accompanying statement, wherein he reported that he had a college education and that he worked as an antique clock dealer. The Veteran has since reported that he is unemployed. Based on the evidence of record, the Board finds that the Veteran’s service-connected disabilities of residuals of a right femur fracture with right knee and hip disability, fracture of the right tibial plateau, fracture of the condyloid process of the left mandible, and fracture of the 4th metacarpal of the left hand do not render him unable to obtain or sustain substantially gainful employment. The evidence of record supports a finding that the Veteran, without regard to advancing age and nonservice-connected disabilities, is capable of performing the physical and mental actions required by employment. While his knee and hip conditions may impair some physical labor, the Veteran’s work history does not indicate that his work experience is limited to physical labor. Further, his educational background indicates the ability to perform tasks in a sedentary occupation. Thus, the Veteran’s service-connected disabilities for not render him unable to obtain or retain substantially gainful employment nor do they render him unemployable such that referral for extraschedular consideration of unemployability is warranted. 38 C.F.R. § 4.16. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hallie E. Brokowsky, 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.