Citation Nr: 21031741 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-13 320 DATE: May 24, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for a left knee disability (Degenerative Joint Disease (DJD), i.e., arthritis) prior to November 13, 2012 and from January 1, 2013 through September 23, 2013, and to a rating higher than 30 percent since November 1, 2014 is denied. [In the interim, the Veteran twice had temporary 100 percent convalescent ratings for this left knee disability under 38 C.F.R. § 4.30 owing to left knee replacement initially as of November 13, 2012 and again as of September 24, 2013.] Entitlement to a total disability rating based on individual unemployability (TDIU) from November 1, 2014 to July 30, 2017 and since April 2, 2018 is granted, subject to the statutes and regulations governing payment of compensation. FINDINGS OF FACT 1. Prior to November 13, 2012 and from January 1, 2013 to September 23, 2013, the Veteran's left knee disability caused pain but did not result in limitation of flexion to 45 degrees or less, in limitation of extension to 10 degrees or more, and did not involve instability, dislocated semilunar cartilage, impairment of the tibia or fibula, ankylosis, or genu recurvatum.. 2. On September 24, 2013, the Veteran underwent surgery for total left knee replacement; he consequently had a temporary 100 percent rating from that date until November 1, 2014, so for over a year following that surgery. 3. Since November 1, 2014, the Veteran's left knee disability has not been manifested by chronic residuals consisting of severe painful motion or weakness in the affected extremity, or evidence of ankylosis, limitation of extension to greater than 30 degrees, or nonunion with loose motion of the tibia and fibula requiring a brace. 4. From November 1, 2014 to July 30, 2017 and since April 2, 2018, thus excluding when he had a 100 percent convalescent rating and received Special Monthly Compensation (SMC) because of the 100 percent rating with additional service-connected disability independently ratable as at least 60-percent disabling, his service-connected disabilities have precluded him from obtaining and maintaining substantially gainful employment consistent with his level of education, prior work experience and training. CONCLUSIONS OF LAW 1. Prior to November 13, 2012, and from January 1, 2013 through September 23, 2013, the criteria are not met for a rating greater than 10 percent for the left knee disability. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5003, 5260 and 5261. 2. Since November 1, 2014, the criteria are not met for a rating greater than 30 percent for the left knee disability, status post left knee replacement. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5055. 3. From November 1, 2014 to July 30, 2017 and since April 2, 2018, the criteria are met for entitlement to a TDIU. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This appeal to the Board of Veterans' Appeals (Board) originated from an August 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Board remanded these claims back to the RO for further development and consideration including to obtain all outstanding treatment records, both private and VA, and to have the Veteran reexamined to reassess the severity of his left knee disability. At the time, the claim concerning his left knee disability was for a rating higher than 10 percent for this disability prior to November 13, 2012, and since January 1, 2013, because in the interim he had a temporary 100 percent convalescent rating for this disability under the provisions of 38 C.F.R. § 4.30 ("Paragraph 30"). Those remand instructions since have been completed, as directed. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). On remand, the RO (Agency of Original Jurisdiction (AOJ)) partially granted the claim for a higher rating for this left knee disability by again granting a temporary 100 percent convalescent rating under 38 C.F.R. § 4.30 this time as of September 24, 2013, and by increasing the rating for this disability from 10 to 30 percent under DC 5055 as of November 1, 2014. However, ratings higher than 10 percent continued to be denied both prior to November 13, 2012 and from January 1, 2013 to September 23, 2013, as was a rating higher than 30 percent since November 1, 2014. Since the Veteran did not receive the maximum permissible schedular rating for all the periods at issue in this appeal, the grant of a higher rating for his left knee disability did not abrogate his appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). Increased Ratings Disability evaluations 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 his 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. When the evidence contains factual findings that demonstrate distinct time periods during which the service-connected disability exhibits symptoms that would warrant different evaluations at any point during the appeal, the assignment of "staged" ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's left knee disability is now rated under DC 5055 because of the surgery for his left knee replacement, whereas it previously was rated under DC 5003 and, on referral, DCs 5260 and 5261 since involving DJD (arthritis) with consequent limitation of motion. During the pendency of this 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 pendency 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. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 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 will consider 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. The criteria that are more favorable to him will be applied. Prior to the regulatory change, Diagnostic Code 5055 provided that a 30 percent rating is the minimum rating assignable for prosthetic replacement of the knee joint. A 60 percent rating is warranted for chronic residuals consisting of severe painful motion or weakness in the affected extremity. A 100 percent rating is warranted for one year following implantation of the prosthesis. Intermediate degrees of residual weakness, pain, or limitation of motion are to be rated by analogy to Diagnostic Codes 5256, 5260, 5261, or 5262. 38 C.F.R. § 4.71a, Diagnostic Code 5055. Under Diagnostic Code 5256, a 30 percent rating is warranted for ankylosis in favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees. A 40 percent rating is warranted for ankylosis in flexion between 10 degrees and 20 degrees. A 50 percent rating is warranted for ankylosis in flexion between 20 degrees and 45 degrees. A 60 percent rating is warranted for extremity unfavorable ankylosis in flexion at an angle of 45 degrees or more. 38 C.F.R. § 4.71a, Diagnostic Code 5256. According to Diagnostic Code 5260, a 0 percent rating is warranted for flexion limited to 60 degrees; a 10 percent rating is warranted for flexion limited to 45 degrees; a 20 percent rating is warranted for flexion limited to 30 degrees; and a 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. According to Diagnostic Code 5261, knee extension limited to 5 degrees warrants a 0 percent rating. Extension limited to 10 degrees warrants a 10 percent rating. Extension limited to 15 degrees warrants a 20 percent rating. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, DC 5261. Pursuant to Diagnostic Code 5262, a 30 percent rating is warranted when there is malunion of the tibia and fibula, with marked knee or ankle disability. A schedular maximum 40 percent rating is warranted when there is nonunion of the tibia and fibula, with loose motion requiring a brace. 38 C.F.R. § 4.71a, DC 5262. As of February 7, 2021, under the amended criteria, DC 5055 provides that a 100 percent rating is warranted for four months (rather than for one year) following implantation of the prosthesis. A 60 percent rating is warranted for chronic residuals consisting of severe painful motion or weakness in the affected extremity. A 30 percent rating is the minimum rating assignable for prosthetic replacement of the knee joint. Intermediate degrees of residual weakness, pain, or limitation of motion are still to be rated by analogy to Diagnostic Codes 5256, 5260, 5261, or 5262. 38 C.F.R. § 4.71a, DC 5055. There were no changes to DCs 5256, 5260 and 5261. However, under DC 5262, a noncompensable (0 percent) rating is warranted when there is malunion of the tibia and fibula, with medial tibial stress syndrome (MTSS), or shin splints treatment less than 12 consecutive months, one or both lower extremities. A 10 percent rating is warranted for MTSS or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities. A 20 percent rating is warranted for MTSS or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. A 30 percent rating is warranted for MTSS or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities. A schedular maximum 40 percent rating is warranted when there is nonunion of the tibia and fibula, with loose motion requiring a brace. 38 C.F.R. § 4.71a, DC 5262. 1. Entitlement to an initial rating higher than 10 percent for the left knee disability prior to November 13, 2012 and from January 1, 2013 through September 23, 2013 is denied. 2. Entitlement to a rating higher than 30 percent for the left knee disability since November 1, 2014 is denied. The Veteran underwent left knee arthroscopic surgery in November 2012 and additional surgery in September 2013 for total left knee replacement, and he already consequently was granted two temporary 100 percent convalescent ratings from November 14, 2012 to December 3, 2012 and from September 24, 2013 through October 31, 2014. He therefore had the maximum permissible schedular rating of 100 percent during both of those periods and, consequently, no higher rating is possible as a matter of law during those two periods. Moreover, as dictated by the former version of DC 5055, following his left knee replacement, he also had that temporary 100 percent rating for the prescribed one year; in fact, his temporary 100 percent rating actually was slightly longer than one year since, in theory, it does not start until after cessation of an initial 100 percent convalescent rating under § 4.30, at minimum, for 30 days. Moreover, sometimes, according to the specific language of a regulatory DC, a rating will only be in effect for a prescribed period of time and, unless circumstances dictate, will be reduced at the end of the designated period usually pending reevaluation. This is the precise the situation when there has been replacement of a knee with a prosthesis since, according to the express wording of DC 5055, the 100 percent rating is for 1 year following implantation of the prosthesis, then the rating essentially is based from that point onwards on the extent of residuals. Therefore, the RO's action to assign a lesser 30 percent rating upon termination of that regulatory prescribed temporary 100 percent rating was not a "rating reduction," per se, as that term is commonly understood. See Rossello v. Principi, 3 Vet. App. 430 (1992) (wherein the Court found that a 100 percent rating for mesothelioma ceased to exist by operation of law because the applicable DC involved contained a temporal element for that 100 percent rating). The Board must consider whether a rating by analogy to a different diagnostic code is appropriate (see 38 C.F.R. § 4.20 (2016) (requiring consideration of rating by analogy when a condition is unlisted); compare Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991) (the Board has a duty to acknowledge and consider all regulations that are potentially applicable) with Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) ("[W]hen a condition is specifically listed in the Schedule, it may not be rated by analogy")). Here, though, the Board has considered the several codes in the Rating Schedule and finds no other that would provide a basis to grant a higher evaluation for the Veteran's left knee disability meaning aside from DC 5055 for his left knee replacement and, outside of that, DC 5003 since there was DJD (arthritis) in this knee before replacement of it with a prosthesis. Prior to September 24, 2013, therefore prior to his total knee replacement surgery, the Veteran's left knee disability was rated, instead, under DC 5003 for degenerative arthritis. DC 5003, in turn, specifies to rate the disability based on the extent it causes limited motion of the affected joint, so, here, since the left knee, invoking consideration of DC 5260 (for limitation of knee/leg flexion) and DC 5261 (for limitation of knee/leg extension). Also, however, according to DC 5003, when the limitation of motion of the specific joint or joints involved is noncompensable (meaning 0-percent disabling) under the appropriate DCs, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, but not to be combined. So, if a Veteran has arthritis in his knee, but it does not cause a compensable level of limitation of motion on either flexion or extension according to DCs 5260 and 5261, respectively, then he still is entitled to a 10 percent rating under DC 5003. However, no greater rating is warranted in this circumstance. The U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) explained that § 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other DCs assessing musculoskeletal function. Spurgeon v. Brown, 10 Vet. App. 194 (1997). Moreover, in Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011), the Court held that the evaluation of painful motion as limited motion only applies when limitation of motion is noncompensable (again, meaning 0-percent disabling) under the applicable DC. The Court further explained that, although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), when read together with DC 5003 regarding arthritis, it does not follow that the maximum rating is warranted under the applicable DC pertaining to range of motion simply because pain is present throughout the range of motion. See id. For rating purposes, normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II. The Board finds that the preponderance of the evidence is against a rating higher than 10 percent for the Veteran's left knee disability prior to November 13, 2012. During a July 2012 VA examination, the Veteran's left knee flexion was to 140 degrees (so he had entirely normal flexion) and without any objective evidence of painful motion. This VA examination also did not find that pain causes additional functional loss with repeated use over time. The VA examiner indicated that flare-ups did not impact the function of the Veteran's knee. An August 2012 VA treatment note revealed the Veteran had left knee pain but, upon examination, his left knee flexion still was to 130 degrees, so still nearly normal and far exceeding even the 60-degree limitation required for the most minimum 0 percent rating under DC 5260. In fact, his flexion was to more than twice that amount. A March 2013 VA treatment note indicated the Veteran experienced daily pain. A September 2013 VA treatment note indicated he suffered from chronic pain in his left knee, and he at least initially continued to complain of pain in this knee even after his left knee replacement surgery in September 2013. However, in a September 2020 VA advisory medical opinion, the VA examiner observed that, prior to September 2013, the available medical records essentially reveal a normal knee exam, with range of motion from 0 to 140 degrees (extension to flexion, so normal range of motion), with no change on observed motion, normal muscle strength, little pain and tenderness, and no instability. The VA examiner added, however, despite no loss of range or motion (ROM), the Veteran had severe arthritis, which clearly would limit prolonged standing, prolonged ambulation, stairs, and strenuous activities, including running. This VA examiner thus concluded that it was clear the Veteran's condition had progressed from 2012 leading to the total knee arthroplasty in September 2013. He explained that, as the total knee replacement is almost always done for severe symptomatology and dysfunction, it is clear the Veteran's knee condition had progressed relatively quickly from July 2012 until September 2013. But even considering that assessment, the Board finds that a disability rating higher than 10 percent prior to November 13, 2012 and from January 1, 2013 to September 23, 2013 is not warranted since there simply was not the required amount of limited motion on either left knee flexion or extension to warrant any higher rating, again, even when acknowledging the "severe" arthritis in this knee and consequent pain. 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; 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 criteria."). The Board also has considered that the Veteran's symptoms had rapidly progressed to necessitating a total knee replacement by September 2013, and the Board acknowledges the lay reports of pain associated with walking or evening standing. See June 2012 Statement in Support of Claim. The Veteran is certainly competent to report left knee pain, and there is no doubt that he experienced since he underwent surgery for a total knee replacement; however, he has been compensated at the maximum permissible 100 percent level for that surgery. Furthermore, even considering his lay reports of symptoms like chronic pain preceding that surgery, the objective medical evidence does not show limitation of motion on either flexion or extension to warrant a rating higher than 10 percent. In short, even considering his chronic pain, his flexion was not limited to 30 degrees or less (DC 5260) or his extension to 15 degrees or more (DC 5261). As well, the Board has considered other diagnostic codes pertaining to knee disabilities but finds that none are applicable in this case. There is no evidence in the record of ankylosis of the knee (DC 5256), recurrent subluxation or lateral instability (DC 5257), semilunar cartilage dislocation or removal (DCs 5258 and 5259), impairment of the tibia and fibula (DC 5262), or genu recurvatum (DC 5263). Therefore, a higher evaluation is not available to the Veteran during this period under any of these other codes. It must be remembered that he already was compensated temporarily at the 100 percent level for his earlier surgery, left knee arthroscopy, so there is no reason to assign a separate rating under the meniscal codes. See Lyles v. Shulkin, 29 Vet. App. 107 (2017). Moreover, although the Board cannot categorically give more probative weight to medical evidence over lay evidence when determining whether there is knee instability or subluxation, the fact remains that all testing for this impairment was unremarkable and he did not complaint of it. See English v. Wilkie, 30 Vet. App. 347 (2018). Accordingly, the Board finds that, prior to November 13, 2012, and from January 1, 2013 to September 23, 2013, the preponderance of the evidence is against a rating greater than 10 percent for the left knee disability. The Board also finds that a rating higher than 30 percent for this left knee disability since November 1, 2014 is not warranted. VA treatment records, VA examination reports dated in May 2018 and December 2019, as well as private treatment records indicate the Veteran regular used a knee brace for support (not malunion or nonunion), regular used a cane and walker, and had reduced range of motion but no evidence of pain with weight bearing and no additional loss after repetitions. He also denied flare-ups. He did not report instability and no gait or functional impairment was noted. Consequently, evidence of record during this succeeding period shows that he has had no more than intermediate degrees of residual weakness, pain or limitation of motion in his left knee that does not warrant the assignment of a rating exceeding 30 percent under DCs 5055, 5256, 5260, 5261, or 5262. The change in the rating criteria as of February 7, 2021, does not render a more favorable outcome, as under DC 5055 the 60 percent criteria did not change. Furthermore, DCs 5256, 5260, 5261, 5262 are inapplicable as the Veteran does not have ankylosis, a ratable limitation of extension, or impairment of the tibia and fibula. 3. Entitlement to a TDIU The Veteran also contends that his service-connected disabilities render him unemployable and, therefore, entitled to a TDIU. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU is part and parcel of an increased-rating claim when unemployability is expressly raised by the Veteran or reasonably raised by the record. Here, this derivative claim has been raised both by the record and specifically by the Veteran and, therefore, is part of this appeal. An award of a TDIU requires a Veteran be unable to obtain or maintain a substantially gainful occupation as a result of a service-connected disability or disabilities. For schedular consideration, a Veteran must meet one of the following conditions: 1) if he has just one service-connected disability, it must be rated at 60 percent or more, or 2) if he has more than one service-connected disability, at least one must be rated at 40 percent or more with additional service-connected disability sufficient to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). For purposes of determining whether these threshold minimum rating requirements are met, however, disabilities resulting from common etiology or single accident or affecting both upper extremities or both lower extremities or single bodily system will be considered as one, collective, disability. Id. During the applicable review period beginning in November 2012, the Veteran has had the following service-connected disabilities and corresponding ratings for them: Coronary Artery Disease (30 percent from July 31, 2017, 60 percent from May 25, 2018); Prostate Cancer (100 percent from July 31, 2017, 20 percent from April 1, 2018, 40 percent from May 1, 2019); Lisfranc's dislocation, left ankle (30 percent from September 22, 2004); Left Knee Replacement (10 percent from April 10, 2012, 100 percent from November 13, 2012, 10 percent from January 1, 2013, 100 percent from September 24, 2013, 30 percent from November 1, 2014); Diabetes Mellitus (20 percent from August 2007); Tinnitus (10 percent from August 2007); Bilateral (right and left) lower extremity neuropathy (both at 10 percent from July 31, 2017); noncompensable (0 percent rating) for bilateral hearing loss, left knee scar, scars status-post coronary artery bypass graft, and erectile dysfunction. Consequently, the ratings for the Veteran's service-connected disabilities meet the criteria for schedular consideration of entitlement to a TDIU beginning on November 1, 2014. However, from July 31, 2017 to April 1, 2018, he had a temporary 100 percent convalescent rating under 38 C.F.R. § 4.30. He also received SMC during that same time frame since he had a 100 percent rating on account of prostate cancer with additional service-connected disabilities independently ratable as at least 60-percent disabling. See 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). The Court has recognized that a 100 percent schedular disability rating means that a Veteran is totally disabled. See Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a Veteran to be totally disabled due to a particular service-connected disability or combination of disabilities pursuant to the Rating Schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for a TDIU moot where 100 percent schedular rating was awarded for the same period). As the Veteran had a 100 percent, i.e., total rating for his prostate cancer from July 31, 2017 to April 1, 2018, and additionally received SMC, the issue of his entitlement to a TDIU during this same period consequently has been rendered moot. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008). The Board must still consider TDIU entitlement, however, outside that window. The Board finds that the evidence indicates his service-connected disabilities, when also considering his level of education, training and prior work experience, have rendered him incapable of obtaining or maintaining substantially gainful employment. Thus, this claim must be granted. Substantially gainful employment is defined as work that is more than marginal, and that permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). 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). In making this determination, consideration may be given to his level of education, special training, and previous work experience, but not to his age or to impairment owing to non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. On March 14, 2019, so during the pendency of this appeal. the Veterans Court (CAVC) issued Ray v. Wilkie, 31 Vet. App. 58 (2019). Ray held that "substantially gainful employment," in the TDIU context, contains economic and noneconomic components; the economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. The CAVC also provided guidance as to the meaning of a veteran's ability to "secure and follow" such employment, noting that attention must be given to: the veteran's occupational history, education, skill and training; whether the veteran has the physical ability to perform occupational activities; and whether the veteran has the mental ability to perform occupational activities Here, records show the Veteran completed a semester of college and worked for Walt Disney World as an Usher, Statistical Specialist (collect and count tickets), and Receiver from August 1979 to November 2014. The record also indicates that, as part of his jobs, he had to do a significant amount of standing and walking for long periods of time. Multiple evaluations indicate the difficulty he had in attempting to perform those required tasks, especially given the limitations caused by his service-connected ankle and knee disabilities. The record also very specifically notes that he left that job because of his ankle disability particularly. He also has left and right lower extremity peripheral neuropathy owing to his type II diabetes mellitus and has coronary artery disease, status post coronary artery bypass grafting (CABG). Those disabilities are aside from his prostate cancer and other service-connected disabilities. The Court clarified in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), that the disability rating, itself, is recognition that industrial capabilities are impaired. Indeed, according to 38 C.F.R. § 4.1, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. So, above and beyond this, the record must reflect some factor that takes a particular case outside the norm in order for a claim for individual unemployability benefits to prevail. As the Court further explained in Van Hoose, the mere fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether he is capable of performing the physical and mental acts required by employment. Here, though, all things considered, the Board finds that the Veteran's service-connected disabilities especially his left ankle and knee disabilities, but also when considering his others, too, have been sufficiently severe as to render him incapable of obtaining or maintaining any form of substantially gainful (versus just marginal) employment. Accordingly, a TDIU is warranted for the occasions when he did not have a 100 percent rating and receive SMC, subject to the statutes and regulations governing the payment of compensation. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Hamm, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.