Citation Nr: 21011879 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 17-02 996 DATE: March 2, 2021 ORDER Entitlement to a rating in excess of 20 percent for service-connected right knee instability is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. The Veteran’s right knee instability has been manifested by no more than moderate lateral instability. 2. The Veteran’s service-connected disabilities have not rendered him unable to secure and follow a substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial right knee disability rating in excess of 20 percent based on instability, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code (DC) 5257. 2. The criteria for a TDIU have not been met. 38 U.S.C. § 1155, 5103(a), 5103A, 5107; 38 C.F.R. § 3.102, 3.159, 3.340, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1974 to July 1976. In August 2019, a Travel Board Hearing was held before the undersigned Veterans Law Judge (VLJ). A transcript is of record. In November 2019, the Board of Veterans’ Appeals (Board) remanded this case for additional development. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The United States Court of Appeals for Veterans Claims (Court) has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when 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). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the veteran. Gilbert, 1 Vet. App. at 53. Included within 38 C.F.R. § 4.71a are multiple Diagnostic Codes (DCs) that evaluate impairment resulting from service-connected knee disorders, including DC 5256 (ankylosis), DC 5257 (other impairment, including recurrent subluxation or lateral instability), DC 5258 (dislocated semilunar cartilage), DC 5259 (symptomatic removal of semilunar cartilage), DC 5260 (limitation of flexion), DC 5261 (limitation of extension), DC 5262 (impairment of the tibia and fibula), and DC 5263 (genu recurvatum). 38 C.F.R. § 4.71a, DC 5256 provides for a 30 percent rating (and even higher ratings) for ankylosis of a knee in a favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees. Ankylosis is immobility and consolidation of a joint due to disease, injury, surgical procedure. Nix v. Brown, 4 Vet. App. 462, 465 (1993); and Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). According to DC 5257, which rates impairment resulting from other impairment of the knee, to include recurrent subluxation or lateral instability, a 10 percent rating is assigned with evidence of slight recurrent subluxation or lateral instability of a knee; 20 percent rating is assigned with evidence of moderate recurrent subluxation or lateral instability; and 30 percent rating is assigned with evidence of severe recurrent subluxation or lateral instability. Pursuant to 38 C.F.R. §§ 4.40 and 4.45, pain is inapplicable to ratings under DC 5257 because it is not predicated on loss of range of motion. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). 38 C.F.R. § 4.71a, DC 5258 provides for a 20 percent rating for a dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the knee joint. 38 C.F.R. § 4.71a, DC 5259 provides for a 10 percent rating for symptomatic residuals of removal of a semilunar cartilage. Ratings under DC 5259 require consideration of 38 C.F.R. §§ 4.40 and 4.45 because removal of a semilunar cartilage may result in complications producing loss of motion. VAOGCPREC 9-98. Thus, if there are symptoms as a residual of a meniscectomy (partial removal of semilunar cartilage in the knee) which are subluxation or instability, or limitation of motion, separate ratings for such manifestation may be assigned. However, 38 C.F.R. § 4.71a, DC 5258 provides for a 20 percent rating for a dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. A locked knee is "a condition in which the knee lacks full extension and flexion because of internal derangement, usually the result of a torn meniscus." http://medical-dictionary.thefreedictionary.com/locked+knee. Thus, locking encompasses limitation of motion such that assigning additional and separate rating for limited knee flexion or extension under, respectively, DCs 5260 or 5261 would constitute pyramiding under 38 C.F.R. § 4.14 and, as such, is prohibited. VAOPGCPRECs 23-99 and 9-93. 1. Entitlement to an increased rating for right knee instability is denied. The Veteran contends he is entitled to a higher evaluation for his service-connected right knee instability. By way of background, in the April 2016 rating decision on appeal, the Veteran was granted service connection with an initial rating of 20 percent for right knee instability under Diagnostic Code (DC) 5257. He was also granted service connection for right knee residuals of a repaired meniscus tear with an initial rating of 10 percent under DCs 5003-5260. The Veteran disagreed with the initial rating assigned for his right knee instability, but not for the right knee residuals of a repaired meniscus tear. See May 2016 Notice of Disagreement. Accordingly, only the matter of the rating to be assigned for the Veteran’s right knee instability will be addressed in this decision. More recently, the Veteran has also been granted service connection with an initial rating of 0 percent for right knee scars. See August 2020 rating decision. This was granted as a downstream issue related to the Board’s November 2019 remand. The Veteran has not disagreed with this decision; therefore, it will also not be addressed by the Board. However, it is noted that if the Veteran wishes to seek review of the August 2020 rating decision, he has one year from the date of its September 2020 notification letter to do so. Regarding the rating for the Veteran’s right knee instability, VA treatment records indicate that he began receiving treatment for his right knee in July 2017. Since that time, the Veteran has reported worsening right knee pain over the past 10 years. In addition to pain, the Veteran has displayed stiffness and crepitus on movement in the right knee. Additionally, the records indicate that VA clinicians have treated the Veteran with corticosteroid injections and that the Veteran uses a cane to assist with ambulation. The treatment records reflect that the Veteran has been given diagnoses of right knee osteoarthritis, mild bony enlargement in the right knee, and a prior right knee meniscectomy. Finally, the treatment records indicate that the Veteran stopped working due to back and knee pain. See VA Treatment Records, received January 2020. In April 2016, the Veteran underwent a VA examination to evaluate his knee condition. At the time, the Veteran was diagnosed with knee instability and a right knee meniscal tear. The Veteran reported increasing pain and instability, and flare-ups that occurred with walking, steps, and uneven ground. He also reported functional loss, which he described as instability and pain with decreased flexion. On examination, the Veteran’s initial range of motion of the right knee was found to be 110 degrees of flexion with normal extension. Pain was noted on the examination and was determined to contribute to functional loss. Specifically, pain, instability and weakness with flexion were recorded. There was evidence of pain on weight bearing, and objective evidence of crepitus. No objective evidence of localized tenderness or pain on palpation of the join or associated soft tissue was noted. Range of motion in the right knee after repeated use was the same as the initial range of motion, but pain, fatigue, weakness and lack of endurance were noted to limit functional ability with repeated use over a period of time. The Veteran reported flare-ups, and the examination was conducted during a flare-up. However, the range of motion was described as the initial range of motion with pain, weakness, and lack of endurance contributing to functional loss during flare-ups. The Veteran was also noted to have swelling, instability of station, and disturbance of locomotion with his right knee. A reduction in muscle strength was noted with right knee strength rated at 2/5 for flexion and 4/5 for extension; however, no muscle atrophy was recorded. No ankylosis was found during the examination. Joint stability testing showed no history of recurrent subluxation, but a moderate history of lateral instability was noted in the right knee. Specifically, lateral instability was recorded at 2+ (5-10 millimeters). The examination found no recurrent patellar dislocation, stress fractures, chronic exertional compartment syndrome or any other tibial and/ or fibular impairment. The Veteran was noted to have torn his right meniscus and had frequent episodes of joint locking, pain, and effusion. Additionally, he had meniscal surgery in 1975. Lastly, it was noted that the Veteran constantly used a brace and cane to assist in locomotion. See April 2016 VA Examination. At the August 2019 Board hearing, the Veteran testified that he had knee instability and that he attended a VA clinic every six months for knee injections and used a cane to assist with ambulation. The Veteran reported that his knee would “give out” on him and that he could not stand for long periods of time as a result. The Veteran also claimed that his knee condition required him to remain seated and as a result he did not do much because he could not go outside much, and when he did, he could not even mow his yard. He also contended that he had lost his job due to his knee condition. Finally, he alleged that his knee condition had worsened since his April 2016 VA examination. See August 2019 Board Hearing. In December 2019, the Veteran underwent another VA examination to evaluate his knee condition. The examiner noted diagnoses of a right knee meniscal tear, right knee anterior cruciate ligament tear, right knee instability and residuals of a repaired meniscus tear. During the examination, the Veteran reported right knee pain, swelling, and instability. He also flare-ups in the right knee described as increased pain and swelling in the knee, and reported functional loss with walking, standing, and kneeling. On examination, the Veteran’s initial range of motion was recorded at 80 degrees of flexion and 0 degrees of extension. Additionally, range of motion was noted to contribute to functional loss with walking, standing and kneeling. Pain on flexion and extension were also noted. Evidence of pain with weight bearing and objective evidence of crepitus were recorded during the examination. The Veteran was able to perform repetitive-use testing with at least three repetitions. After three repetitions, range of motion was recorded at 70 degrees for flexion and 0 degrees for extension. Pain was noted to contribute to functional loss after repeated use over a period of time. The Veteran reported flare-ups, however the examination was not conducted during one. Nonetheless, range of motion during flare-ups was described as 70 degrees for flexion and 0 degrees for extension. Additionally, pain was found to contribute to functional loss during flare-ups. Muscle strength testing was performed, which revealed a reduction in muscle strength that was found to be entirely due to the Veteran’s claimed condition. Flexion and extension strength were recorded at 4/5. No ankylosis was recorded. Joint stability testing showed no history of recurrent subluxation in the right knee or a history of lateral instability in the knee. However, a history of recurrent effusion was noted and described as swelling in the right knee. Joint stability testing showed normal anterior, posterior and medial instability, but recorded lateral instability. Specifically, lateral instability was recorded at 2+ (5-10 millimeters). No recurrent patellar dislocation was noted on the examination. The Veteran was determined to have a meniscal condition. A meniscal tear, frequent episodes of joint pain, and frequent episodes of joint effusion were noted on the examination. Additionally, the examiner noted that the Veteran underwent a right meniscectomy in 1975. Lastly, the Veteran was reported to use a cane for stability secondary to knee pain and instability. See December 2019 VA Examination. In a separate medical opinion, the December 2019 VA examiner noted the Veteran was service-connected for a right knee residual meniscectomy with instability and that a June 2015 MRI had shown the right knee to be positive for advanced degenerative arthritis. The examiner explained that knee instability could also be caused by degenerative changes in the knee joint and that as degeneration continued, the condition would only progress and increase knee instability. In the Veteran’s case, the examiner noted the examination was not conducted during a flare-up or after repeated use over time; however, the Veteran complained of increased pain with swelling during flare-ups and repetitive use over time. The frequency of his right knee flare-ups was monthly and lasted from 3 days to a week. It was characterized by increased pain and swelling, and was alleviated by rest and pain medication. The severity was moderate to severe, and functional loss was noted with walking, standing, and kneeling. As for the Veteran’s right knee instability, the examiner noted that the Veteran complained of chronic pain, swelling, and instability secondary to the meniscus tear with repain. The increased pain and swelling during flare-pus would result in limited range of motion of the right knee with instability. Right knee range of motion with wear bearing was noted to be 80 degrees for flexion and 0 degrees for extension; non-weight bearing range of motion was 90 degrees for flexion and 0 degrees for extension. The Veteran’s right knee instability was described as moderate and noted to result in functional loss with walking on uneven terrain, standing, climbing up and down stairs. The knee instability was also associated with an increase in fall risk. See December 2019 VA Medical Opinion. In September 2020 and November 2020, the Veteran submitted the reports from an MRI of the right knee conducted in March 2015 which showed large joint effusion, an ACL tear that was noted to be probably chronic, a medial meniscal tear, presumed post surgical changes to the lateral meniscus, and degenerative arthritis; and from a September 2020 x-ray of the right knee which showed advanced osteoarthritic narrowing of the lateral (outside portion) of the joint, and was noted to be similar to a 2017 study. In light of the evidence of record and based on the legal criteria above, the Board finds that a higher rating is not warranted for the Veteran’s right knee instability. The Board acknowledges the Veteran’s contention that his knee instability has worsened since the April 2016 VA examination. See August 2019 Board Hearing. The Veteran was provided a VA examination in December 2019, as a result. The findings from both those examinations, as well as the Veteran’s VA treatment records, do not show that his right knee instability has been manifested by greater than moderate lateral instability. In the Veteran’s April 2016 VA examination, lateral instability was recorded at 2+ (5-10 millimeters). Additionally, the lateral instability was described as “moderate”. Results from the December 2019 VA examination similarly showed lateral instability at 2+ (5-10 millimeters). In the December 2019 VA medical opinion, the examiner also described the Veteran’s knee instability as moderate, while noting that this was associated with an increase in fall risk and would result in functional loss when walking on uneven terrain, standing, climbing up and down stairs. Although laypersons are sometimes competent to provide etiology and diagnosis, see Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007), here, the specific lateral instability test results shown on examination are more probative as to the severity of the Veteran’s right knee instability for VA purposes than the Veteran’s general lay assertions. In September 2020 and November 2020, the Veteran submitted additional medical evidence, as noted above, to support his claim for a higher disability rating. However, apart from showing the diagnoses associated with his right knee disability, these diagnostic reports do not include findings related to the severity of the Veteran’s right knee instability. Finally, it is noted that during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board has considered the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021, with the criteria that is more favorable to the Veteran applied. As of February 7, 2021, under the amended criteria for DC 5257, recurrent subluxation or instability that is manifested by unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutches, walker) and bracing for ambulation warrants a 30 percent rating. Where there is a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation; or there is an unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation, a 20 percent rating is warranted. Where there is a 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 or bracing for ambulation, a 10 percent rating is warranted. 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 30 percent rating is warranted. 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, a 20 percent rating is warranted. 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, a 10 percent rating is warranted. The Veteran’s disability, as evaluated under the pre-February 7, 2021, criteria is discussed above. Under the criteria in effect from February 7, 2021, it is not shown that a rating higher than 20 percent would be warranted for the Veteran’s right knee instability either. The VA treatment records and VA examination reports support that the Veteran uses a cane for his right knee instability; however, apart from the single notation during the April 2016 VA examination that he also used a brace, it is not otherwise shown by the record that he has been prescribed a brace by his medical provider. In fact, his VA treatment records are silent for such a prescription and at the August 2019 Board hearing, the Veteran also only testified to using a cane to assist with his ambulation. This finding was reiterated during the December 2019 VA examination where it was also reported the Veteran used only a cane. 2. Entitlement to a TDIU. 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. 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability 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. 38 C.F.R. § 4.16(a). In such an instance, 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, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. The Board must evaluate whether there are circumstances in the veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU. 38 C.F.R. § §§ 3.341(a), 4.19; see Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). In August 2016, the Veteran filed an application for increased compensation based on unemployability VA Form 21-8940. In the application, the Veteran claimed that he was unable to secure or follow substantially gainful employment due to knee pain, hip and back pain, depression, and anxiety. The Veteran is service connected for right knee instability (20 percent), right knee residuals of a repaired meniscus tear (10 percent), and right knee scars (0 percent). As the combined evaluation is 30 percent, the Veteran has not met the schedular criteria for a TDIU. The Board notes, however, that even though the Veteran does not meet the schedular criteria for consideration of a TDIU, the Board must still consider whether referral for extraschedular consideration under 38 C.F.R. § 4.16(b) is warranted. Under the extraschedular provision of 38 C.F.R. § 4.16(b), a claimant must show that he is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities in order to warrant a referral to the Director, Compensation Service, for extraschedular consideration. The record reflects that the Veteran graduated high school. See January 2020 VA Treatment Record. Following his separation from the military in July 1976, he worked as a shipping supervisor for Monterey Mushrooms until 2014 or 2015 when he was let go after 38 years on the job. The Veteran’s duties at Monterey Mushrooms included supervising the shipping the department, and loading and unloading trucks. See Medical Treatment Records Furnished by Social Security Administration (SSA); see also August 2019 Board Hearing. Review of the Veteran’s VA treatment record reveals that on numerous occasions he complained of right knee pain on weight bearing and stiffness on movement. Additionally, the records show that the Veteran underwent injections to treat his right knee condition. The Veteran also uses a cane to assist with ambulation. Lastly, the treatment records also show that the Veteran suffers from various nonservice-connected disabilities, including chronic obstructive pulmonary disease (COPD), depression, hypertension, alcohol abuse, tobacco abuse, and degenerative disc disease. See January 2020 VA Treatment Record. In December 2019, the Veteran underwent a VA examination to evaluate the severity of his right knee condition. During the examination, the Veteran claimed that his right knee condition had worsened. Furthermore, he indicated that his symptoms consisted of right knee pain, instability, and swelling. The Veteran claimed functional loss consisting of limitations in walking, standing and kneeling due to his knee condition. The Veteran was also noted to use a cane for stability. See December 2019 VA Examination. In the Veteran’s August 2019 Board hearing, he claimed that he could no longer work due to his knee condition. Additionally, he stated that he was unable to stand for long periods of time and remained seated at most times as a result. In the hearing, the Veteran contended that he was let go from his job due to his knee condition; however, he also reported that he was not let go from the company until after he broke his right leg while on the job. Furthermore, the Veteran appears to contend that the company used his right leg break as an excuse to fire him for his knee condition. After being let go by Monterey Mushrooms, the Veteran stated that he looked for a new job in the area but could not find one because there were not many jobs available that he was qualified for, aside from farm labor. See August 2019 Board Hearing. Following his separation from Monterey Mushrooms, the Veteran was admitted to a psychiatric facility after calling a suicide hotline and making allegations that he was going to shoot both himself and several supervisors at his work whom he felt pushed him out of his job. See Medical Records Furnished by SSA. In March 2015, the Veteran was determined to be disabled by the Social Security Administration (SSA) for back disorders and substance addiction disorders. See Medical Records Furnished by SSA. VA treatment records provide further insight regarding the Veteran’s substance use. Specifically, a March 2019 treatment record indicates that the Veteran reported to VA clinicians that he consumed nearly a case of beer per day and used marijuana. See January 2020 VA Treatment Records. The Board acknowledges the March 2015 SSA disability determination, which shows that the Veteran’s SSA disability award was based on disorders of the back and substance addiction disorders; however, this determination was based on conditions that are not service connected. In spite of the Veteran’s report that he no longer works due to his knee condition, the evidence of record indicates that the Veteran stopped working due to nonservice-connected back, substance abuse, leg conditions, and his right knee disorder. Although SSA disability determinations are made using different criteria than that which the Board relies upon, the Board finds it highly probative that the Veteran was determined to be disabled for substance and back conditions rather than disabilities of the knee. Additionally, the Veteran reported that he was not fired from his job until after he broke his leg, which is not a service-connected condition. Lastly, in his August 2016 application for compensation based on unemployability, the Veteran claimed that he was unable to work due to knee pain, hip and back pain, depression and anxiety. Notably, the Veteran is not service connected for hip and back pain, depression or anxiety. Accordingly, the weight of the evidence suggests that his nonservice-connected problems affect his ability to work more so than his knee disabilities. The Veteran’s right knee disabilities result in symptoms inclusive of instability, pain with decreased flexion, swelling, and functional loss with walking, standing, and kneeling. He also uses a cane to assist with ambulation. The Board acknowledges that these result in occupational impairment; however, the evidence of record does not show that his service-connected right knee conditions would preclude him from acquiring substantially gainful employment given his prior work experience as a supervisor. The Board emphasizes that the assigned disability rating is already meant to compensate the Veteran for the average impairment of earning capacity resulting from his service-connected right knee condition. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Accordingly, the Veteran's overall disability rating does not meet the criteria for a schedular assignment of a TDIU, and the weight of the evidence does not indicate that the Veteran is rendered unable to secure or follow a substantially gainful employment due to the effects of his service-connected disability alone, so as to require referral to the Director of Compensation Service for extraschedular consideration. Thus, as a preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine is inapplicable, and his claim of entitlement to a TDIU must be denied. See 38 U.S.C. § 5107(b) 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Talton, John H. 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.