Citation Nr: 0001213 Decision Date: 01/14/00 Archive Date: 01/27/00 DOCKET NO. 95-31 067 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a nervous disorder. 2. Entitlement to an increased evaluation for a low back disability, currently evaluated as 40 percent disabling. 3. Entitlement to an increased evaluation for a right knee disability, currently evaluated as 10 percent disabling. 4. Entitlement to a total disability evaluation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: John Stevens Berry, Attorney WITNESSES AT HEARING ON APPEAL Appellant and Mr. [redacted] ATTORNEY FOR THE BOARD B. N. Booher, Associate Counsel INTRODUCTION The veteran had unverified service from September 1972 to August 1976. This appeal comes before the Board of Veterans' Appeals from August 1998 and July 1999 rating decisions by the Department of Veteran's Affairs (VA) Regional Office (RO) in Lincoln, Nebraska which denied the benefits sought on appeal. FINDINGS OF FACT 1. The veteran does not have a current diagnosis of any type of nervous disorder. 2. The veteran's low back disability is currently manifested by degenerative disc disease, degenerative joint disease and intermittent episodes of back pain. 3. The veteran's right knee disability is currently manifested by degenerative joint disease, no more than slight limitation of flexion and subjective complaints of pain. 4. The veteran has a high school education, completed one year of college, and was last employed on a full-time basis in approximately December 1994/January 1995. 5. The veteran's service-connected disabilities do not preclude him from obtaining or retaining some form of substantially gainful employment. CONCLUSIONS OF LAW 1. The veteran's claim of entitlement to service connection for a nervous disorder is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. The criteria for an evaluation in excess of 40 percent for a low back disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5293 (1999). 3. The criteria for an evaluation in excess of 10 percent for a right knee disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5260 (1999). 4. The criteria for entitlement to TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlement to service connection for a nervous disorder. The veteran contends that he is entitled to service connection for a nervous disorder. The VA may pay compensation for "disability resulting from personal injury or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in the active military, naval or air service." 38 U.S.C.A. § 1110 (West 1991). However, the threshold question that must be answered in this case is whether the veteran has presented a well-grounded claim for service connection. A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. In this regard, the veteran has "the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a) (West 1991); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). If the evidence presented by the veteran fails to meet this threshold level of sufficiency, no further legal analysis need be made as to the merits of the claim. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). For a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service disease or injury and the current disability. Where the determinative issue involves medical causation, competent medical evidence to the effect that the claim is plausible is required. See Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997). For disorders subject to presumptive service connection, the nexus requirement may be satisfied by evidence of manifestation of the disease to the required extent within the prescribed time period, if any. See Traut v. Brown, 6 Vet. App. 495, 497 (1994); Goodsell v. Brown, 5 Vet. App. 36, 43 (1993). A claimant may also establish a well-grounded claim for service connection under the chronicity provision of 38 C.F.R. § 3.303(b) (1999), which is applicable where the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during an applicable presumption period, and that same condition currently exists. Such evidence must be medical unless the condition at issue is one which under case law, lay observation is considered competent to prove its existence. If the chronicity provision is not applicable, a claim still may be well- grounded pursuant to the same regulation if the evidence shows that the condition was observed during service or any applicable presumption period and continuity of symptomatology was demonstrated thereafter, and includes competent evidence relating the current condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). In this case, service medical records are negative for any complaints of or diagnosis of any type of nervous disorder. Additionally, the veteran has not submitted any medical evidence which establishes that he currently suffers from or has been diagnosed with any type of nervous disorder. Because the veteran has not submitted any evidence to show that he currently has a nervous disorder, his claim must be denied as not well grounded. The Board is unaware of any outstanding evidence which could serve to well ground the veteran's claim, such as medical evidence which establishes that he has been diagnosed with a nervous disorder that has been shown to be related to his period of active service. Should the veteran obtain such evidence, he may request that the RO again consider his claim for service connection. See 38 U.S.C.A. § 5103 (West 1991); McKnight v. Gober, 131 F.3d 1483, 1484-85 (Fed. Cir. 1997). II. Entitlement to an increased disability evaluation for a low back disability, currently evaluated as 40 percent disabling. The veteran's claim for an increased evaluation for a low back disability is well grounded within the meaning of 38 U.S.C.A. § 5107(a). The United States Court of Appeals for Veterans Claims (the "Court") has held that a mere allegation that a higher rating is justified due to an increase in severity of the service-connected condition is sufficient to render the claim well grounded. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 631-32 (1992). The Board is also satisfied that in the present case, all relevant facts have been properly developed and that the duty to assist the veteran has been met. 38 U.S.C.A. § 5107(a). 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.A. § 1155; 38 C.F.R. §§ 3.321, 4.1-4.14. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making a disability evaluation. 38 C.F.R. § 4.1 (1999). However, the current level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45. Painful, unstable, or maligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. By rating decision dated April 1994, the RO granted service connection for the veteran's low back disability and assigned a 20 percent disability evaluation pursuant to Diagnostic Code 5293, with an effective date of December 29, 1993. By rating decision dated August 1995 the RO continued the veteran's 20 percent evaluation. In a June 1998 rating decision the RO increased the veteran's disability evaluation to 40 percent with an effective date of November 22, 1994. The veteran's 40 percent disability evaluation was continued by a rating decision dated August 1998. Under the facts of the present case, the Board would normally also consider DC 5295. However, the veteran is already receiving the maximum benefit to which he would be entitled under DC 5295 and additional analysis under this code is therefore not necessary. The veteran's low back disability is currently evaluated as 40 percent disabling under Diagnostic Code (DC) 5293. DC 5293 provides for a 40 percent evaluation for intervertebral disc syndrome manifested by severe; recurring attacks with intermittent relief of intervertebral syndrome. A higher 60 percent evaluation is appropriate for pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief. In VAOPGCPREC 36-97 (December 12, 1997), the acting VA General Counsel held that: (1) DC 5293 involves loss of range of motion and, therefore, 38 C.F.R. §§ 4.40 and 4.45 must be considered when a disability is evaluated under this diagnostic code; (2) When a veteran receives less than the maximum evaluation under DC 5293 based upon symptomatology which includes limitation of motion, consideration must be given to the extent of the disability under 38 C.F.R. §§ 4.40 and 4.45, even though the rating corresponds to the maximum rating under another diagnostic code pertaining to limitation of motion; and (3) The Board must address entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b)(1) if there is evidence of "exceptional or unusual" circumstances indicating that the rating schedule, including 38 C.F.R. §§ 4.40, 4.45, and 4.71a, may be inadequate to compensate for the average impairment of earning capacity due to intervertebral disc syndrome, regardless of the fact that a veteran may have received the maximum schedular rating under a diagnostic code based upon limitation of motion. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). The pertinent evidence of record shows that in November 1994, the veteran complained of low back pain and reported experiencing acute episodes of back pain that lasted 3 to 4 days. In December 1994, an MRI scan revealed central left posterior herniations at L4-L5 and L3-L4, moderate degenerative disc disease at L4-L5 and L5-S1 and moderate sized central posterior osteophyte at L5-S1. Also in December 1994, the veteran reported that he had not been able to work for one year due to his back pain. He also indicated that he experienced constant pain confined to his low back. During a hearing held before the RO in April 1996, the veteran testified that he was out of work quite frequently due to back pain. The veteran also testified that after leaving his employment with Cashway in January 1995, he was unable to obtain additional employment due to his back disability. The veteran indicated that he experienced acute periods of back pain approximately every 2 months. Mr. [redacted] [redacted] testified on behalf of the veteran at the hearing and he indicated that the veteran walks with a limp due to his back pain. In May 1997, the veteran was afforded a VA examination. The VA examination report indicates that the veteran continued to be unemployed due to his back pain. He presented with complaints of episodes of back pain. Physical examination revealed no abnormality of the musculature. The veteran had forward flexion to 60 degrees, backward extension to 20 degrees and lateral flexion and rotation to the left and right within normal parameters. The examiner indicated that there was objective evidence of pain with attempted forward flexion. Specifically, the examiner indicated that the veteran utilized his palms on the front of his legs to help righten himself after bending. There did not appear to be any neurological involvement. The veteran was diagnosed with long-standing degenerative disc disease. In September 1997, the veteran was denied Social Security and Supplemental Social Security Income Disability benefits. It was indicated that while the veteran could not return to his previous employment as a truck driver, he was capable of attempting some type of light duty work involving light lifting, occasional bending and occasional kneeling. A May 1997 letter from Anne M. Liska, PA-C with High Plains Family Medicine indicates that the veteran had received treatment for chronic back pain. Treatment records from North Park Therapy dated December 1997 reflect that the veteran's back pain had improved. X-rays of the veteran's lumbosacral spine taken in April 1998 showed degenerative changes of the lumbosacral spine, unchanged from previous x-rays taken in May 1997. An April 1998 evaluation report from Debra A. Mowry, D.O. with Kearney Orthopedic & Fracture Clinic, indicates that the veteran reported that he was not experiencing back pain at the time of the examination, but that he experienced back pain with radiation into the right leg every 2-3 months with a duration of 2-3 days. The veteran denied numbness in the lower extremities except for some numbness in the toes. He also indicated that he did not need to use a back or leg brace or any other assistive device to ambulate. Physical examination revealed that the veteran was able to forward flex and touch his fingertips to the floor. He had extension to 6 degrees, right side bending to 4 degrees and left side bending to 6 degrees. Sensation to pinprick was intact diffusely throughout the lower extremities. Dr. Mowry's impression was degenerative disc disease by history. In December 1998, the veteran had an MRI scan of the lumbar spine. The MRI revealed mild central disc protrusion with associated diffuse disc bulging and associated osteophytes at L4-5, diffuse disc bulging with bilateral neural foraminal stenosis at L5-S1 and L2 vertebral body hyperintense on T1 and T2, most likely representing a fatty island. There were degenerative changes at L5-S1, but there was no evidence of spondylolysis or spondylolisthesis. An April 1999 report from Dr. Mowry shows that the veteran indicated that his back pain was more noticeable. Dr. Mowry noted that the veteran was spending his time doing his hobbies which include building toys and performing yard and garden work. Physical examination revealed flattening of the lumbar spine with a decrease in normal lumbar curvature. The veteran had forward flexion to 98 degrees, extension to 10 degrees, right side bending to 5 degrees and left side bending to 8 degrees. Dr. Mowry's assessment was probable degenerative arthritis and she indicated that the veteran's exam was essentially the same as it had been the previous year. During an April 1999 VA examination, additional x-rays were taken. The x-rays revealed degenerative disc disease at L4- L5 and L5-S1. Further, the veteran reported that he had presented to the emergency room with acute low back pain on 2-3 occasions during the previous year. A VA treatment record dated June 1999 indicates that the veteran reported that his back went out approximately once every month. A September 1999 VA examination report reflects diagnoses of degenerative disc disease and degenerative joint disease of the lumbar spine. The veteran and his representative argue that the veteran received an inadequate VA examination and have requested the Board to remand this portion of the veteran's appeal in order for the veteran to be scheduled for a more comprehensive examination. After careful review of the record, the Board finds that while the VA examinations afforded the veteran in connection with his claim for an increased disability evaluation for his low back may not be comprehensive, the veteran has submitted other comprehensive examination reports from a private physician as well as recent treatment records which provide sufficient evidence for the Board to review and adjudicate the veteran's appeal. The evidence of record shows that since November 1994, the veteran has experienced intermittent, acute episodes of back pain. In April 1998, the veteran reported experiencing episodes of back pain approximately once every 2-3 months with a duration of 2-3 days. In April 1999, the veteran described his back pain as being more noticeable, and he reported presenting to the emergency room on 2-3 occasions over the course of a year with back pain, but Dr. Mowry opined that the veteran's physical examination was essentially the same as it had been in April 1998. There is no evidence of record that establishes that the veteran experiences sciatic neuropathy with characteristic pain, demonstrable muscle spasm, absent ankle jerk or other neurological findings appropriate to a diseased disc with little intermittent relief. Rather, the evidence shows no neurological involvement and intermittent periods of back pain with periods of time during which the veteran does not experience back pain. As such, the Board finds that the preponderance of the evidence is against entitlement to a rating in excess of 40 percent at this time. Further, while there is evidence of pain on motion as shown by the examiner's comment that the veteran was required to use his palms on the front of his legs to help righten himself after bending, there is no clinical evidence that there is such additional functional loss due to pain (or fatigue, weakness or incoordination) so as to meet the criteria for a rating in excess of the current 40 percent under DC 5293. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). Finally, the Board has considered whether the evidence of record presents such an exceptional or unusual disability as to warrant an extra-schedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b)(1). In the instant case, the assigned 40 percent disability evaluation reflects that there is significant interference with employment. However, there is no current medical or other evidence that the veteran's low back disability results in more than marked interference with employment or that such effect on employment cannot be compensated under the schedular criteria. There is no evidence that the veteran's low back disability has necessitated frequent periods of hospitalization. Further, the evidence does not reflect any unusual factor which renders impracticable the application of the regular schedular standards to the veteran's claim. Consequently, the Board determines that the criteria for assignment of an extra-schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 157 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). The Board emphasizes that it does not doubt the sincerity of the veteran's claim and that the veteran's low back disability results in significant impairment. However, under the applicable diagnostic criteria which the Board must consider, the preponderance of the evidence is against entitlement to a rating in excess of 40 percent at this time. It follows that the reasonable doubt provisions of 38 U.S.C.A. § 5107(b) do not otherwise permit a favorable resolution of this portion of this veteran's appeal. The veteran may always advance a new claim for an increased rating should the severity of the disability increase in the future. III. Entitlement to an increased disability evaluation for a right knee disability, currently evaluated as 10 percent disabling. The veteran asserts that the evaluation assigned to his right knee disability does not reflect accurately the severity of his symptomatology. As previously indicated, the veteran's assertion of an increase in the severity of his disability is sufficient to establish a well-grounded claim for a higher evaluation pursuant to 38 U.S.C.A. § 5107 (West 1991). Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 631-2 (1992). Having examined the record in support of this claim, the Board also finds that the VA has obtained and fully developed all relevant evidence necessary for the equitable disposition of the veteran's claim. When the veteran was originally granted service connection, his right knee disability was evaluated under DC 5010 and described as degenerative arthritis and chondromalacia of the knee. DC 5010 provides that arthritis due to trauma, substantiated by x-ray findings, will be rated as degenerative arthritis. The criteria for degenerative arthritis are set forth in DC 5003. DC 5003 provides that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasms, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation will be assigned where there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups. A 20 percent evaluation will be assigned where there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. The shoulder, elbow, wrist, hip, knee, and ankle are considered to be major joints for the purpose of rating disability for arthritis. 38 C.F.R. § 4.45, Part 4, Diagnostic Code 5002 (1999). In reviewing this appeal, the Board will also consider diagnostic codes 5257, 5260, and 5261. A 10 percent evaluation is warranted pursuant to DC 5257 with slight impairment of either knee, including recurrent subluxation or lateral instability. A 20 percent evaluation requires moderate impairment, and a 30 percent evaluation requires severe impairment. Under DC 5260, limitation of motion must be objectively confirmed by findings such as swelling, muscle spasms, or satisfactory evidence of painful motion. A 10 percent evaluation will be warranted where flexion is limited to 45 degrees, and where it is limited to 30 degrees, a 20 percent rating will be assigned. If the flexion is limited to 15 degrees, a 30 percent evaluation should be awarded. Diagnostic Code 5261 provides that where extension is limited to 10 degrees, a 10 percent rating will be assigned, and where it is limited to 15 degrees, a 20 percent rating will be assigned. For a 30 percent evaluation, extension must be limited to 45 degrees. Under 38 C.F.R. § 4.71a, Plate II (1999), a normal range of motion for the knee is from 0 degrees extension to 140 degrees flexion. These evaluations include an assessment of the impact of the disability on the veteran's daily life, including pain. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 1998); 38 C.F.R. §§ 4.10, 4.40, 4.45, Part 4, 5257, 5010, 5260, 5261 (1999). Further, as with the veteran's low back disability, the Board must also consider whether the veteran's right knee disability causes function loss pursuant to 38 C.F.R. §§ 4.40, 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). By rating decision dated April 1994, the veteran was granted service connection and a 10 percent disability evaluation with an effective date of December 29, 1993 for degenerative arthritis and chondromalacia of the right knee. In an August 1998 rating decision, the RO continued the 10 percent disability evaluation. Thereafter, the veteran requested an increased evaluation for his knee disability. The relevant evidence of record shows the following. X-rays taken during an April 1998 VA examination revealed degenerative joint disease involving all three compartments of the right knee joint, the most severe involving the lateral compartment. The veteran's knee was also examined by Dr. Mowry with Kearney Orthopedic & Fracture Clinic in April 1998. At the time of the examination the veteran indicated that he was not experiencing any difficulties with his knee. However, he stated that he typically experienced pain with extensive bending, or walking. Physical examination revealed crepitus with range of motion of the knees bilaterally. No erythema, warmth, or edema of the knees was noted. The right knee revealed a hyperplasia of the medial condyle. Extension of the right knee lacked 4 degrees of full extension, the veteran had flexion to 42 degrees. The veteran was diagnosed with degenerative arthritis of the right knee by history. The veteran was examined by Dr. Mowry again in April 1999. At that time, the veteran reported occasional right knee pain that was not as noticeable as his back pain. Physical examination showed crepitus of the right knee with range of motion. Warmth and increased edema of the right knee were not noted. Likewise, Dr. Mowry indicated that there was no laxity of the medial or lateral ligaments of the right knee and that the veteran was able to ambulate without an assistive device. Dr. Mowry's diagnosis was probable degenerative arthritis. During a general April 1999 VA medical examination, x-rays were taken of the veteran's knee. These x-rays demonstrated moderately severe degenerative disease including hypertrophic bony changes and cystic change of the lateral femoral condyle. The diagnosis was degenerative disease of the right knee. The veteran was afforded another VA examination in September 1999. The veteran reported experiencing ongoing right knee pain and indicated that he used crutches when he experienced knee pain. The veteran denied experiencing any buckling or locking of his knee. Physical examination revealed some tenderness over the medial aspect and crepitus. The veteran had extension to 0 degrees and flexion to 110 degrees. X- rays of the right knee were compared with those of April 1999. The examiner noted moderate to severe tricompartmental degenerative changes of the right knee with some narrowing of the lateral compartment as well as osteophytosis, subchondral sclerosis and subchondral cyst formation particularly within the lateral femoral condyle. However, this was thought to be relatively unchanged from the appearance of the knee in April 1999. There was no evidence of acute fracture, dislocation or effusion. The veteran was diagnosed with degenerative joint disease of the right knee with significant right knee patella femoral disease. Based on a review of the aforementioned evidence, the Board concludes that the veteran is not entitled to an increased disability evaluation for his right knee disability. In April 1998, the veteran had almost full extension of the right leg and flexion to 42 degrees. In April 1999, the veteran had slightly limited flexion of the knee and full extension of the right leg. Further, he did not have any laxity of the knee. A review of the evidence and the pertinent diagnostic codes shows that the veteran is entitled to no more than a 10 percent disability evaluation under DC 5260. The Office of General Counsel has issued two opinions indicating that a veteran who has arthritis and instability of the knee may be evaluated separately under Diagnostic Codes 5003 and 5257 provided additional disability is shown. VAOPGCPREC 23-97 (July 1, 1997) (23-97); VAOGCPREC 9-98 (August 14, 1998) (9-98). Additional disability is shown when a veteran meets the criteria for an evaluation under either DC 5260 or 5261, which include flexion limited to 60 degrees or extension limited to 5 degrees, or when there is painful motion such that it adds to the actual limitation of motion shown under DC 5260 or DC 5261. 9-98 at 1-4. A separate evaluation may also be granted under DC 5003 and 38 C.F.R. § 4.59, when a veteran technically has full range of motion that is inhibited by pain. 9-98 at 4; see also Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). While the veteran has been shown to have arthritis, he is not currently impaired by instability or subluxation. Therefore, a separate evaluation is not warranted. Likewise, the veteran is not entitled to an evaluation in excess of 10 percent pursuant to 38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. at 206, because there is no evidence that his right knee pain causes functional loss other than the slight limitation of motion already noted. Finally, the Board has also considered whether the evidence of record presents such an exceptional or unusual disability as to warrant an extra-schedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b)(1). There is no current medical or other evidence that the veteran's knee disability results in more than marked interference with employment or that such effect on employment cannot be compensated under the schedular criteria. There is no evidence that the veteran's knee disability has necessitated frequent periods of hospitalization, nor is there any evidence that reflects any unusual factor which renders impracticable the application of the regular schedular standards to the veteran's claim. Consequently, the Board determines that the criteria for assignment of an extra-schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 157 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). IV. Entitlement to a total disability evaluation based on individual unemployability (TDIU). The veteran claims that his service-connected disabilities, a low back disability and a right knee disability, render him unemployable. The Board finds that the veteran's claim is well grounded, and that the VA has fulfilled its duty to assist the veteran by obtaining and fully developing all relevant evidence necessary for the equitable disposition of his claim. A total disability evaluation may be assigned where the schedular evaluation is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more (in pertinent part, disabilities of both lower extremities or affecting a single body system, e.g., orthopedic, will be considered one disability) and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (1999). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 4.15, 4.17. Marginal employment, including at odd jobs or at less than half the usual remuneration, will not be considered incompatible with a determination of unemployability. 38 C.F.R. § 4.17(a). To warrant a total rating based on individual unemployability, the veteran's service-connected disabilities must be severe enough, in light of his educational background and employment history, to render him unable to secure and follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 3.341, 4.16. The veteran is currently service connected for a low back disability, evaluated as 40 percent disabling and a right knee disability, evaluated as 10 percent disabling. The veteran's combined evaluation is 50 percent. Thus, the veteran does not satisfy the minimum percentage requirement for individual unemployability under 38 C.F.R. § 4.16(a). However, the question remains whether his disabilities render him unable to obtain and retain substantially gainful employment. In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the United States Court of Appeals for Veterans Claims (known as the united States Court of Veterans Appeals prior to March 1, 1999) discussed the meaning of "substantially gainful employment." In this context, it noted the following standard as set forth in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. The veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The veteran's application for TDIU benefits reflects that he left his last job due to his low back disability. He also indicated that he has attempted to obtain employment, but has been unable to do so. The veteran has a high school education and attended college majoring in accounting and minoring in music. He also has training in general electronic technology and truck driving. He earned credits toward certification in natural gas compression and took classes in order to obtain a pilot's license. The veteran was last employed in December 1994 as a route deliveryman for Cashway, Inc. He has also been employed in skilled and semi- skilled manual labor. An April 1996 VA vocational rehabilitation report reflects that the veteran has hobbies including rebuilding antique cars, cabinetry finish work and woodworking such as making toys, but he had been unable to engage in these activities due to limited space. The report also indicates that considering the veteran's self-reported limitations, he would be unable to maintain employment due to the frequency of his absences from work and physical limitations including limited sitting, standing, walking, and lifting. However, it was also indicated that considering the veteran's medical records, the veteran could consider some type of light duty work where he could alternate his sitting and standing and limit repetitive lifting. It was specifically suggested that the veteran is qualified for employment in light carpentry and maintenance work, light custodial work, work as a truck dispatcher, or work dealing with on-the-job safety and risk management. In September 1997 the veteran's claim for Social Security disability benefits was denied. In the decision denying his claim, it was indicated that while the veteran may not be capable of performing his previous jobs as a truck driver or a delivery man, his disabilities do not prevent him from performing other types of work that involve only light lifting and occasional bending and kneeling. During an April 1999 VA examination the veteran indicated that he believed he was able to work as a carpenter or a truck driver, however his back disability limits his ability to be a permanent employee. He further indicated that he had been denied employment on numerous occasions due to his back disability. A September 1999 VA examination report reflects that the veteran reported performing intermittent carpentry work. Overall, the evidence of record in this case does not support the veteran's contention that his service-connected disabilities, in and of themselves, are of such severity as to preclude his participation in all forms of substantially gainful employment. While the Board appreciates the veteran's difficulties in seeking employment, the fact that a veteran is unemployed or has difficulty obtaining employment is insufficient to establish unemployability. The relevant question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Specific types of employment have been identified as being within the veteran's capabilities. The Board therefore concludes that the preponderance of the evidence is against the veteran's claim that his service- connected disabilities render him unable to obtain or retain substantially gainful employment. Accordingly, entitlement to TDIU is not warranted. Because the preponderance of the evidence is against the veteran's claim, this doctrine is not for application in the instant case. Gilbert v. Derwinski, 1 Vet. App. at 55; 38 U.S.C.A. § 5107(b) (West 1991). ORDER 1. Entitlement to service connection for a nervous disorder is denied. 2. Entitlement to an increased evaluation for a low back disability is denied. 3. Entitlement to an increased evaluation for a right knee disability is denied. 4. Entitlement to a total disability evaluation based on individual unemployability is denied. WARREN W. RICE, JR. Member, Board of Veterans' Appeals