Citation Nr: 1751978 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 10-40 402 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for degenerative arthritis and meniscal tear, right knee disability prior to August 14, 2014, from October 1, 2014 to September 26, 2016 and in excess of 20 percent from September 27, 2016. 2. Entitlement to a disability rating in excess of 10 percent for degenerative arthritis and meniscal tear, left knee disability prior to August 14, 2014, from October 1, 2014 to September 26, 2016 and in excess of 20 percent from September 27, 2016. 3. Entitlement to a total disability rating based on individual unemployability. REPRESENTATION Veteran represented by: Rod Barbee, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T. Henry, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1984 to December 1987. This appeal comes before the Board of Veterans' Appeals (Board) from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In June 2012, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of this proceeding is associated with the claims file. In March 2013, February 2014 and 2016, and September 2016, the Board remanded this matter for further development. In a December 2014 rating decision, the RO granted entitlement to a temporary evaluation of 100 percent for the Veteran's left knee based on surgical or other treatment necessitating convalescence, effective August 14, 2014, an evaluation of 10 percent was assigned from October 1, 2014. In a February 2017 Supplemental Statement of the Case (SSOC), the RO increased the Veteran's disability evaluation for his degenerative arthritis and meniscal tear, for both left and right knees, from 10 to 20 percent effective September 27, 2016. The Veteran has not expressed his satisfaction with the award, nor is this the maximum benefit allowable by law. Therefore, the evaluation periods remain on appeal. AB v. Brown, 6 Vet. App. 35 (1993). FINDINGS OF FACT 1. Prior to August 14, 2014, the Veteran's bilateral knee disability manifested with range of motion limited to, at worst, 105 degrees of flexion, with pain, no indication of instability, recurrent subluxation, ankylosis, or degenerative arthritis. 2. From October 1, 2014 to September 27, 2016, the Veteran's bilateral knee disability manifested with range of motion limited to, at worst, 100 degrees of flexion, with stiffness and pain which required cortisone shots. 3. From September 27, 2016, the Veteran's bilateral knee disability manifested with range of motion limited to 130 degrees of flexion, locking and effusion. 4. The Veteran is not precluded from securing or following all forms of substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for bilateral knee disability, prior to August 14, 2014, have not been met. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes (DC) 5260, 5261 (2017). 2. The criteria for a rating in excess of 10 percent for bilateral knee disability, from October 1, 2014 to September 27, 2016, have not been met. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. §§ 4.7, 4.71a, DC 5260, 5261 (2017). 3. The criteria for a rating in excess of 20 percent for bilateral knee disability, from September 27, 2016 have not been met. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. §§ 4.7, 4.71a, DC 5260, 5261 (2017). 4. The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 Once a claim of service connection has been granted, the filing of a notice of disagreement (NOD) with the RO's rating of a disability does not trigger additional VCAA notice. See 38 C.F.R. § 3.159(b) (3). Therefore, further VCAA notice is not applicable to the Veteran's claim for an increased rating for his knee disabilities. See id.; see also, e.g., Dunlap v. Nicholson, 21 Vet. App. 112, 116-117 (2007); Goodwin v. Peake, 22 Vet. App. 128, 136 (2008) (holding that where a claim for service connection has been granted, "the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements," such as the effective date or initial rating). VA also met its duty to assist by obtaining relevant service treatment and other relevant medical treatment records and providing the Veteran with medical examinations. In June 2012, the Veteran participated in a videoconference hearing. The Veteran stated that his March 2010 examination was inadequate because the examiner did not use a "measuring device" to measure his range of motion (ROM). However, in September 2016, the Veteran was afforded another VA examination which addressed the Veteran's previous contention. The Board also finds that there was substantial compliance with the September 2016 Board remand directives. Specifically, the Board wanted to ascertain the severity of the Veteran's service connected disabilities. In September 2016, a VA examination was conducted and a medical opinion was provided. This VA examination is adequate to resolve the appeal. Accordingly, there was substantial compliance with the prior Board remand directives, and no further remand is necessary. See Stegall v. West, 11 Vet. App. 268 (1998); see D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008). Accordingly, the Board will address the merits of the claim. A. Increased Rating Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). With regard to the issues at hand, as an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects the 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. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. It should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability, and incoordination. The Veteran was rated under Diagnostic Code 5003. Pursuant to Diagnostic Code 5003, arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations warrants a 20 percent evaluation. X-ray evidence of involvement of 2 or more major joints or 2 or more minor joints warrants a 10 percent evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. Diagnostic Codes 5260 and 5261 provide for rating based on limitation of motion. For purposes of this decision, the Board notes that normal range of motion for the knee is flexion to 140 degrees and extension to 0 degrees. 38 C.F.R. § 4.71, Plate II. Evaluations for limitation of extension of the knee are assigned as follows: extension limited to 10 degrees is 10 percent; extension limited to 15 degrees is 20 percent; extension limited to 20 degrees is 30 percent; extension limited to 30 degrees is 40 percent; and extension limited to 45 degrees is 50 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Evaluations for limitation of flexion of a knee are assigned as follows: flexion limited to 45 degrees is 10 percent; flexion limited to 30 degrees is 20 percent; and flexion limited to 15 degrees is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5260. The rating schedule provides for a 10 percent rating for slight recurrent subluxation or lateral instability, a 20 percent rating for moderate recurrent subluxation or lateral instability, and a 30 percent rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under DC 5258, a 20 percent rating is assigned for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, DC 5258. Under DC 5259, a 10 percent rating is assigned for cartilage, semilunar, removal of, symptomatic. 38 C.F.R. § 4.71a, DC 5259. Diagnostic Code 5259 requires consideration of 38 C.F.R. §§ 4.40 and 4.45 because removal of the semilunar cartilage may result in complications producing loss of motion. VAOPGPREC 9-98 (Aug. 14, 1998). Therefore, a knee disability cannot be separately rated under Diagnostic Code 5259 and a limitation-of-motion diagnostic code. Additional ratings are available under DC 5256 for ankylosis of the knees, DC 5262 for impairment of the tibia and fibula, and DC 5263 for genu recurvatum. The evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The VA General Counsel has held that a claimant who has arthritis and instability of a knee may be rated separately under Codes 5003 and 5257, while cautioning that any such separate rating must be based on additional disabling symptomatology. VAOPGCPREC 23-97 (July 1997); VAOPGCPREC 9-98, (August, 1998). Moreover, the General Counsel also held more recently that separate ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5260 (limitation of flexion of the leg) and under Diagnostic Code 5261 (limitation of extension of the leg), may be assigned for disability of the same joint. VAOGCPREC 9-2004 (September, 2004). 1. Rating in excess of 10 percent prior to August 14, 2014 for a bilateral knee disability In January, 2010, the Veteran submitted an application stating that his service connected knee disabilities were more severe than the assigned disability rating reflected. The Veteran was rated under Diagnostic Code 5003. In July 2007, the Veteran had a follow up appointment to see his physician for his knees. The examiner noted that the ROM was "ok." The Veteran was taking NSAID for his knees. See Medical Treatment Record-Government Facility entered in VBMS on October 29, 2007, page 13. In November 2008 during his RMS consult, the Veteran's right knee plain films showed osteophytic spurring noted inferiorly of the patella. February 2010 MRI of the Veteran's right knee showed tearing involving the inferior articular surface of the posterior horn medial meniscus, diminutive and irregular medial meniscal body, 7 x 5 mm probable ganglion adjacent, to the anterior aspect of the ACL insertion, small joint effusion, and irregular PD signal extended to the superior articular surface of the posterior horn lateral meniscus possible tear. The examiner noted that the Veteran had normal bilateral ROM, no swelling or effusion, negative PFG test, no evidence of catching or locking on tests designed to elicit meniscal tears though there was slight pain on the right knee. There was no evidence of ACL/PCL/MCL/LCL instability or inflammation. However, the Veteran experienced bilateral tenderness at the medial joint line, right knee joint djd, and partial meniscal tear. See Medical Treatment Record-Government Facility entered in VBMS on August 31, 2010, page 5, 8. In November 2008, the Veteran was afforded a VA examination for his bilateral knee pain. The Veteran stated that standing on a concrete floor aggravated his knee condition. The Veteran was taking NSAID for his knee pain. The examiner noted that the Veteran walked with a normal gait, and there was normal weight bearing. The Veteran's right knee flexion was zero to 135 with pain and minor discomfort, extension was 130-135, zero without pain. The Veteran's passive and active ROM were the same. The Veteran did not experience additional limitations with repeated motion, crepitation, clicks or snaps, grinding, instability, patellar, meniscus, or other knee abnormality. There was no evidence of joint ankylosis. The examiner noted that the Veteran had no limitations from his knees. The examiner confirmed the Veteran's bilateral patellofemoral syndrome with normal ROM and x-rays. In January 2010, the Veteran did not experience right knee swelling, redness, or crepitation. He had full ROM and walk without any assistance. However, the Veteran continued to have problem with right knee pain especially after prolong rest or walking. See Medical Treatment Record-Government Facility entered in VBMS on March 05, 2010, pages 3-4. In March 2010, the Veteran was examined by his VAMC physician. About six months prior to seeing the physician, the Veteran began to experience insidious onset of pain in both knees (right greater than left). The pain gradually got worse. The pain was primarily along the medial joint line, but occurred in other parts of the knee. He also experienced some popping and giving way of the knee with a near fall in January 2010. There was no effusion or catching. However, he did experience tenderness along the medial joint line and pain on McMurray's testing. He had good varus valgus stability. Plain films of the Veteran's left knee showed questionable slight narrowing medial knee joint compartment, spurs at attachment of patellar tendon to inferior patella, and in the region of the tibiofibular ligament. MRI evaluation of the right knee dated February 2010 showed tearing involving the inferior articular surface of the posterior horn of the medial meniscus and small joint effusion. The examiner confirmed the Veteran's DJD both knees with degenerative tear posterior horn medial meniscus right knee. See Medical Treatment Record-Government Facility entered in VBMS on April 30, 2010, page 3. In March 2010, the Veteran was afforded a VA examination. The examiner reviewed the Veteran's medical records. The examiner noted that the Veteran did not experience giving way of the knees, instability, weakness, incoordination, effusion, episodes of dislocation or subluxation, or locking. However, the Veteran did experience stiffness and pain. The examiner noted guarding of movement and crepitation on the left knee but no clicks or snaps, grinding, no patellar or meniscus abnormality. The Veteran's left knee flexion was zero to 120 degrees and extension was normal. Right knee flexion was zero to 118 and normal extension. However, in his June 2012 videoconference hearing, the Veteran stated that the examiner did not measure the Veteran's flexion with a goniometer. In a March 2013 Board decision, the Board remanded the cases for further development to include testing with a goniometer. In July 2010, during his RMS consult, the Veteran did not experience redness, tenderness, or swelling in his left knee. He had full ROM and walked without any assistance. However, the Veteran experienced right knee pain, episodes of the knee popping, and giving way. See Medical Treatment Record-Government Facility entered in VBMS on August 31, 2010, page 5, 8. In January 2012, an emergency department note stated that the Veteran experienced pain that radiated both proximally and distally and was worsened by weightbearing and motion of the knees. The examiner stated that there was no effusion, erythema, warmth of the knee joints, or collateral or cruciate instability. However, the Veteran did experience bilateral tenderness along the medial joint lines anteriorly. There was a moderate degree of crepitus with extension and flexion against resistance. The examiner diagnosed the Veteran with osteoarthritis in both knees with acute breakthrough pain. See Medical Treatment Record-Government Facility entered in VBMS on July 19, 2013, pages 9-11. In July 2012, an orthopedic clinic note stated that the Veteran had Sunvisc-one injected into both knees, and in January 2013, the Veteran had a follow up examination. The Veteran stated that he was doing well with only occasional discomfort. His flexion was zero to 115 degrees. There was no swelling or effusion of the knees, and he walked with a normal gait. See Medical Treatment Record-Government Facility entered in VBMS on July 19, 2013, pages 66. In April 2012 during his orthopedic consult, the Veteran did not experience effusion. He had full range of motion and good stability. In his right knee, the Veteran experienced tenderness along the medial joint line and pain on patellofemoral pressure in his left knee. January 2012 X-rays views showed small patella alta, mild medial and lateral joint space narrowing of the right knee AP and lateral. See Medical Treatment Record-Government Facility entered in VBMS on July 19, 2013, page 83. In July 2012, an orthopedic surgery note stated that the Veteran experienced increasing pain and stiffness. His ROM was zero to 105 degrees. There was no swelling or effusion of the knees, and he walked with a normal gait. In September 2012, the Veteran reported that his knees were better. His range of motion was zero-115. There was no swelling or effusion of the knees, and he walked with a normal gait. See Medical Treatment Record-Government Facility entered in VBMS on July 19, 2013, page 65. In an October 2012 radiology report, the Veteran's examiner noted that the Veteran fell and injured his right knee. The examiner compared the Veteran's March 2010 knee and October 2012 condition. The Veteran's right knee was normal and unchanged with no acute bony process. There was osteophytic spurring of the patella inferiorly. The knee joint space was well maintained and the compartments were unremarkable. The ligament was normal with no osseous abnormalities identified with no significant degenerative changes. Soft tissues were negative, and there was no joint effusion. The examiner noted that the Veteran's left knee was unable to remain bent for a prolonged period of time. See Medical Treatment Record-Government Facility entered in VBMS on July 19, 2013, page 37. In February 2013, the Veteran was given Synvisc-one injections into both knees. The treatment or procedure involved removal of fluid from the knees. The Veteran walked with a guarded gait. He complained of increasing pain and stiffness in both knees and locking in his left knee. His bilateral flexion was zero to 115. There was no swelling or effusion. In March 2013, after an MRI of the left knee and Synvisc one injections into both knees, the Veteran had a follow up appointment. The Veteran stated that he experienced improvement in his discomfort. His flexion was zero to 115 degrees. There was no swelling or effusion of the knee. He was able to do straight leg raises without lag and walked with a normal gait. Review of the MRI of the left knee showed oblique tear in the posterior horn of the medial meniscus. There was also mild generalized osteoarthritis. In May 2013, the Veteran was seen for a follow-up appointment for both knees. He stated that his knees were better and stable. His flexion was zero to 115. There was no swelling or effusion of the knees. He walked with a normal gait. He wore bilateral knee sleeves. In July 2013, the Veteran was seen for a follow-up appointment for both knees. He complained of increasing symptoms of pain and stiffness. His flexion was zero to 90. The examiner found the right knee had no tenderness, catching or locking, swelling or effusion. However, the Veteran experienced slight pain. There was no evidence of instability or inflammation. But, there was bilateral tenderness at the medial joint line. The right knee joint showed degenerative joint disease and partial meniscal tearing. The Veteran had cortisoid shots into the right knee joint and was referred to PT. He had normal ROM and walked without any assistance. There was a moderate degree of crepitus with extension and flexion against resistance. There was no swelling or effusion of the knee, and he walked with a guarded gait. See Medical Treatment Record-Government Facility entered in VBMS on July 19, 2013, page 68, 70. Upon consideration of the evidence, the Board finds that the disability picture for the Veteran's bilateral knee disability does not warrant an evaluation in excess of 10 percent. Range of motion findings do not support the award of compensable evaluations under Diagnostic Codes 5260 or 5261 (2017). Here, the Veteran's flexion at its worse has been limited to 90 degrees and extension to 0. Under 38 C.F.R. § 4.71a, Diagnostic Code 5257, a 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. In January 2010, the Veteran had a near fall. In March and July 2010, the Veteran experienced giving way of the knee, and in October 2012, the Veteran fell. However, in March 2013, the Veteran was able to extend his legs and walk with a normal gait and the examiner noted that the knees were stable. Prior to the near fall and from July 2013 and throughout the appeals period, examination has consistently been negative for instability. Therefore, a 20 percent rating under DC 5257 is not warranted. See 38 C.F.R. § 4.71(a), Diagnostic Code 5256 and 5258. Additionally, the Veteran did not experience ankylosis or effusion. In February 2013, locking of his left knee was noted. However, prior to February 2013 and from July 2013 and throughout the rest of the appeals period, the record is negative for evidence of locking. The Board has also considered any additional disabilities due to pain, weakness, fatigability, or incoordination of a joint that would more nearly approximate a disability picture warranting a higher rating. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board notes that in January 2012, the Veteran experienced a moderate degree of crepitus with extension and flexion against resistance. However, neither the left nor right knee disability has been shown to produce additional impairment of extension or flexion due to pain or functional loss that would warrant ratings higher than 10 percent. See DeLuca; supra. The Board finds that the Veteran's current 10 percent disability rating for the left and right knee disabilities take into consideration and incorporates the functional loss and impairment due to pain, tenderness, and flare-ups. See Diagnostic Code 5260. The Board finds that the preponderance of the evidence is against a claim for a rating in excess of 10 percent for left and right knee disabilities. As the preponderance of evidence is against the finding for a higher rating, the Veteran's claim must be denied from January 28, 20109 to August 14, 2014. 38 U.S.C. § 5107 (b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ii. Increased rating from October 1, 2014 to September 27, 2016 for a bilateral knee disability In August 2014, the Veteran had arthroscopic partial medical menisectomy and lateral retinarcular release from his left knee. In October 2014, the Veteran was seen for his three months postop left knee at the Charlotte CBOC. He was back to his normal activities. The Veteran reported significant improvement in his knee pain. He had stopped taking flexeril. He began working at a carpet company. He did have some occasional aches and pains. His range of motion was zero to 100 of flexion. There was no swelling or effusion of the knee. While wearing knee sleeves, the Veteran walked with a normal gait. The examiner concluded that three months post arthroscopy left knee surgery had a satisfactory outcome. See Capri entered in Legacy December 02, 2014, pages 16, 22, and 43. In January 2015, the Veteran was afforded a VA examination. The examiner reviewed the Veteran's VA e-folder and performed an in-person examination. The Veteran stated that he did not experience locking or swelling in his left knee. The Veteran stated that he experienced pain, rated at 9/10, in his right knee. The pain was aggravated by climbing stairs and pivoting or twisting movements. However, the Veteran denied right knee locking or instability but noted occasional swelling. The examiner noted that the Veteran had abnormal ROM in both knees. The Veteran's flexion was zero to 130 and extension was 130 to zero. However, the abnormal ROM did not contribute to functional loss nor was there additional functional loss after three repetitions. The examiner did not find evidence of pain on weight bearing, ankylosis, recurrent effusion, recurrent patellar dislocation, or joint instability. The Veteran experienced normal muscle strength on forward flexion and extension and did not experience muscle atrophy. The Veteran experienced popping sensation palpated at lateral aspect of bilateral knee joints with flexion and extension. The examiner diagnosed the Veteran with degenerative joint disease for both right and left knee with S/P arthroscopic surgery of the left knee. In July 2015, the Veteran's ROM was zero to 100 of flexion bilaterally. There was no swelling or effusion of the knees, no inflammation or erythema. The Veteran wore bilateral knee sleeves and walked with a normal gait. The Veteran had steroid injections into both knees. In October 2015, the Veteran was seen for followup of both knees for repeat steroid injections at a VAMC orthopedic clinic. The Veteran complained of increasing pain and stiffness without swelling. He experienced increased discomfort with impact activities and prolonged standing or walking. The Veteran's ROM was zero to 110 of flexion bilaterally. There is no swelling or effusion of the knees. He walked with a cane. The Veteran had steroid injections into both knees. The examiner diagnosed the Veteran with symptomatic osteoarthritis in both knees. See Capri entered in Legacy October 26, 2015, page 3. Upon consideration of the evidence, the Board finds that the disability picture for the Veteran's bilateral knee disability does not warrant an evaluation in excess of 10 percent. Applying the findings of the VA medical records to the appropriate Diagnostic Code for limitation of motion for the knee, compensable ratings are not warranted as the Veteran's flexion at its worse has been limited to 100 degrees, bilaterally and extension to 0. The Veteran also did not show evidence of instability or inflammation. Therefore, a 20 percent rating under DC 5257 is not warranted. The Board finds that, for the rating period from October 1, 2014 to September 27, 2016, the criteria for an increased rating in excess of 10 percent for the Veteran's bilateral knee disability have not been met or more nearly approximated. A rating in excess of 10 percent (20 percent) under Diagnostic Code 5003, which in turn would be rated under Diagnostic Codes 5260 and 5261 for limitation of motion, requires flexion limited to 30 degrees or less or extension limited to 10 degrees or more. Under Diagnostic Code 5259, a maximum 10 percent rating is prescribed for removal of symptomatic semilunar cartilage. 38 C.F.R. § 4.71a. However, as the primary manifestations shown during this period are pain and limitation, which are already contemplated by Diagnostic Code 5003, a separate 10 percent rating is not warranted under Diagnostic Code 5259. 38 C.F.R. § 4.71a. The Board finds that a separate rating for instability under Diagnostic Code 5257 is not warranted. During the January 2015 VA examination, all joint stability testing were normal. Locking or effusion were also not shown. Therefore, a separate rating under Diagnostic Code 5258 is not warranted. The Board finds that no other higher or separate rating is warranted under any of the other diagnostic codes pertaining to the knee. As there is no lay or medical evidence of ankylosis, the Board finds that Diagnostic Code 5256 does not apply. Furthermore, Diagnostic Code 5262 does not apply, as there is no evidence of malunion or nonunion of the tibia or fibula of the knees. Finally, as the evidence of record does not reflect that the Veteran has genu recurvatum of the right or left knee, Diagnostic Code 5263 does not apply. 38 C.F.R. § 4.71a. See January 2015 VA examination report. The Board has also considered any additional disabilities due to pain, weakness, fatiguability, or incoordination of a joint that would more nearly approximate a disability picture warranting a higher rating. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). After his left knee surgery, the Veteran reported significant improvement in his knee. He also went back to work. The Veteran did not experience swelling or effusion, and he walked with a normal gait. The Board notes that in October 2015, the Veteran complained of increasing pain and stiffness without swelling. He was given cortisone shots. However, the Veteran's ROM was zero to 110 degrees of flexion. The knee disabilities have not been shown to produce additional impairment of extension or flexion due to pain or functional loss that would warrant ratings higher than 10 percent. See DeLuca; supra. At worst, the Veteran had flexion of 100 degrees, i.e., well beyond 30 degrees when considering pain and functional loss. The Board finds that the Veteran's current 10 percent disability rating for the right knee disability takes into consideration and incorporates the functional loss and impairment due to pain, tenderness, and flare-ups. See Diagnostic Code 5260. The Board finds that the preponderance of the evidence is against a claim for a rating in excess of 10 percent for a bilateral knee disability. As the preponderance of evidence is against the finding for a higher rating, the Veteran's claim must be denied. 38 U.S.C. § 5107 (b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). iii. Increased rating from September 27, 2016 for a bilateral knee disability In September 2016, the Veteran was afforded a VA examination. The examiner reviewed the claim files and performed an in-person examination. The Veteran stated that he was experiencing knee pain of 3/10. About four times a week, both knees had severe flare ups that lasted up to six hours. The examiner found that the Veteran had abnormal range of motion. For both knees, forward flexion was zero to 130 and extension 130 to zero. There was pain noted on the exam, but it did not result in or cause functional loss. The Veteran experienced pain with weight bearing and crepitus. The Veteran performed repetitive use testing with at least three repetitions. There was no functional loss of range of motion after the three repetitions. Muscle strength, flexion and extension for both knees were 5/5 with no reduction in muscle strength. The Veteran did not experience ankylosis, joint instability, or patellar dislocation. He had meniscus tears, episodes of pain and effusion in both knees and locking in the left knee. The Veteran used an assisted device as a normal mode of locomotion. Regarding the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing for both the right and left knees since February 2010, the examiner noted that the September 2016 VA examination was consistent with the noted bilateral knee injuries and treatments since 2008. The ROM for both knees was consistent except for the 2013 exam. The examiner stated that the record showed that the Veteran worked at night and attended the exam after working all night. The private records showed decreased ROM and an eventual menisectomy tear. After the examiner spoke with the Veteran and reviewed the medical record, the examiner stated that it appeared the 2013 ROM reflected a flare-up of the bilateral knees after working all night. The examiner diagnosed the Veteran with degenerative arthritis and meniscal tear. In February 2017, the RO increased the disability to 20 percent. The 20 percent rating was assigned for the Veteran's dislocated semilunar cartilage with frequent episodes of locking, pain, effusion into the joint, and painful motion of the knee. Twenty percent is the maximum allowed under Diagnostic Code 5258. See 38 C.F.R. § 4.71(a), Diagnostic Code 5258. For the entire rating period, the limitation of flexion has been 130 and extension to 0. Thus, compensable ratings under Diagnostic Codes 5260 and 5261 are not warranted. Additionally, the Board finds that no other higher or separate rating is warranted under any of the other diagnostic codes pertaining to the knee. Examination has been consistently negative for ankylosis or recurrent instability, malunion or nonunion of the tibia or fibula, or impairment of his tibia or fibia. See September 2016 VA examination, DC 5256, 5257, and 5262. Finally, as the evidence of record does not reflect that the Veteran has genu recurvatum of the right or left knee, Diagnostic Code 5263 does not apply. Id. Based on the evidence of record, the Board finds that the preponderance of the evidence is against a finding that an increased rating in excess of 10 prior to April 14, 2014 and from October 1, 2014 to September 27, 2016 and in excess of 20 percent for the period after September 27, 2016 is warranted. B. Entitlement to a total disability rating based on individual unemployability It is the established policy of VA that all veterans who are unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16. A finding of total disability is appropriate 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. §§ 3.340(a)(1), 4.15. "Substantially gainful" employment is employment that is "ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." See Moore v. Derwinski, 1 Vet. App. 356, 358 (1991) (adding that the definition of substantially gainful employment suggests a living wage). Marginal employment is not considered substantially gainful employment. See 38 C.F.R. § 4.16(a); see also Moore, 1 Vet. App. at 358 ("The ability to work only a few hours a day or only sporadically is not the ability to engage in substantially gainful employment."). A TDIU may be assigned if the schedular rating is less than total when it is found that the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. See §§ 38 C.F.R. 3.340, 3.341, 4.16(a). If there is only one such service-connected disability, it must be ratable at 60 percent or more. 38 C.F.R. § 4.16(a). If there are two or more such disabilities, at least one disability must be rated at 40 percent or more, and there must be sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. Id. Where applicable, disabilities resulting from a common etiology are considered a single disability for the purpose of satisfying the percentage standards set forth in 38 C.F.R. § 4.16(a). Id. Where the schedular criteria set forth above are not met, but a veteran is nonetheless found to be unemployable by reason of service-connected disabilities, VA shall submit the case to the Director of Compensation Service for extraschedular consideration. See 38 C.F.R. § 4.16(b). A TDIU claim presupposes that the rating for the service-connected condition is less than 100 percent, and only asks for TDIU because of subjective factors that the objective rating does not consider. See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). Thus, in evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341(a), 4.16, 4.19. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran's service-connected disabilities (exclusive of temporary 100 percent evaluation assigned from August 14, 2014 to September 30, 2014) include bilateral knee disabilities rated at 10 percent effective December 16, 1987 to July 30, 2008; major depressive disorder rated at 50 percent effective March 18, 2013; surgical scar with a noncompensable rating effective August 14, 2014; degenerative arthritis of the right knee rated at 10 percent effective July 30, 2008; and degenerative arthritis, left knee rated at 10 percent effective July 30, 2008 and 10 percent effective October 1, 2014. The Veteran's overall rating was 60 percent effective March 18, 2013 and 60 percent effective October 1, 2014. Prior to September 27, 2016, the service connected disabilities did not meet the percentage rating standards for a schedular TDIU. See 38 C.F.R. § 4.16(a). Nevertheless, where, as here, the Veteran's service-connected disabilities did not meet the requirements for a schedular TDIU, entitlement to a TDIU may be considered on an extraschedular basis. 38 C.F.R. § 4.16(b). As of September 27, 2016, the Veteran's disabilities did meet the percentage requirements for a schedular TDIU. In a June 2010 Statement in Support of Claim, the Veteran stated that his service-connected disabilities affected his job performance and his ability to obtain and maintain substantially gainful employment. In July 2010, the Veteran filed a claim for entitlement for TDIU. According to his TDIU application and other evidence of record, the Veteran is a high school graduate. In April 2010, the Veteran underwent a VA examination. The examiner noted that the Veteran worked in manufacturing and would experience pain with lifting and carrying. The examiner concluded that the Veteran's disabilities had a significant effect on his occupation. In January 2011, the Social Security Administration (SSA) found that the Veteran was disabled for social security purposes. See SSA/SSI Letter entered in VBMS in March 2014, page 140. The primary diagnosis was disorders of the back discognic and degenerative, and the secondary diagnosis was other and unspecified arthropathies. In March 2011, the Veteran was seen for his depression. See Medical Treatment Record-Government Facility entered in VBMS in July 2013, Salisbury VAMC dated 7/10-6-11; 2/12-12/12), page 32. The Veteran stated that he was depressed and had fleeting thoughts of suicide. The Veteran described the thoughts as sporadic. He denied having any specific plan or intent to harm himself. See id. at 33. The examiner noted that the Veteran was alert and oriented to date, time, and location. He was appropriately dress and made fair eye contact. See id. at 32. In October 2011, the Veteran was employed 30 hours at Walmart in the inventory and unloading department. See Medical Treatment Record-Government Facility: Salisbury VAMC (6/11-2/12; 12/12-7/13) entered in VBMS in July 2013, page 25. In December 2011, the Veteran's psychologist noted that because of financial difficulties, the Veteran had been working despite his chronic pain. See Medical Treatment Record-Government Facility entered in VBMS in July 2013, page 16. The Veteran was working a night shift job in an automotive manufacturing plant. See id. The Veteran stated that it was hard on him physically but identified pain from his back, hip, and shoulders as the reason. See id. During his 2012 videoconference hearing, the Veteran stated that the medication he was taking for his disabilities was affecting his productivity. The Veteran spoke to his human resources manager and supervisor, and they encouraged the Veteran to see his doctor. The Veteran stated that his doctor told him he could go back to work. Upon returning to work, the Veteran was informed that the business was closing. In January to June 2013, the Veteran attended mental health group meetings. See Medical Treatment Record-Government Facility: Salisbury VAMC (6/11-2/12; 12/12-7/13) entered in VBMS in July 2013, page 63. During the group meetings, the psychologist noted that the Veteran was avoiding depressive and unproductive ruminations. The Veteran's goal included getting his DJ business running so he could leave his unsustainable factory job. See id. The psychologist noted that the Veteran's affect was flexible and appropriate with NAD, no suicidal or homicidal ideation. See id. at 70-72, 74, 80, and 84. In January 2015, the Veteran was afforded VA examinations for his knees and his hip. The examiner noted that the Veteran worked as in a carpet manufacturing company where he had to frequently walk up and down stairs. The Veteran was also a self-employed DJ. Regarding the Veteran's hip, the examiner concluded that the Veteran's disabilities did not impact his ability to perform any type of occupational task such as standing, walking, lifting, sitting, etc. However, the examiner stated that the Veteran's knee disability had an impact on his occupation. The examiner further stated that the knee disability would limit occupational tasks that required prolonged or sustained walking, climbing, standing, but would not preclude sedentary employment. From September 27, 2016, the Veteran's service-connected disabilities included major depressive disorder rated at 50 percent, degenerative arthritis and meniscal tear, left and knees rated at 20 percent each, and surgical scar with a non-compensable rating. The Veteran's overall rating was 70 percent. From September 27, 2017, the Veteran's disabilities met the schedular criteria for TDIU. During a September 2016 VA examination, the examiner noted that the disabilities had a function impact on the Veteran's ability to work. Due to his swelling knees and missing four days of work, the Veteran stated that he was seeking a more sedentary position. The Veteran further stated that he had hoped to quit his full-time position so that he could pursue a full-time DJ career. Therefore, the evidence does not demonstrate that the Veteran's service-connected disabilities prevent him from obtaining all forms of employment. Rather, the Veteran, realizing the restrictions on his ability to perform duties that would affect his knees, took the necessary steps to secure less strenuous work. In January 2017, the Veteran reported that he recently had bilateral pain injections with good effects. The Veteran stated that he was affected by low moods and pain. However, he continued to work full-time in manufacturing. See CAPRI entered in VBMS on January 25, 2017, page 4. As the evidence demonstrates that the Veteran has maintained employment during the relevant appeal period and remained employed, the Board finds no basis upon which to find that a TDIU is warranted. The Board concludes that the Veteran's overall employment history constitutes substantially gainful employment, and thus does not warrant a TDIU for the period during which he meets the schedular criteria, nor a referral for extraschedular consideration prior to that period. The Board notes that VA is required to consider the SSA's findings. However, the Board is not bound by the findings of disability and/or unemployability made by other agencies, including SSA. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). Adjudication of VA and SSA claims is based on different laws and regulations. In this case, SSA considered a non-service connected back disability as the primary reason for awarding the Veteran benefits. However, the law is clear, and it states that only service-connected disabilities may be considered in a claim of entitlement to a TDIU. Although the Board acknowledges the Veteran experiences limitations as a result of his service-connected disabilities, the Board finds the totality of the evidence weighs against an award of a TDIU. Specifically, the evidentiary record, which includes medical evidence, opinion evidence, and the Veteran's lay assertions, demonstrates the Veteran is not precluded from working due to his service connected disabilities. ORDER An increase rating in excess of 10 percent prior to August 14, 2014 for a bilateral knee disability is denied. An increase rating in excess of 10 percent from October 1, 2014 to September 27, 2016 for bilateral knee disability is denied. An increase rating in excess of 20 percent from September 27, 2016 for bilateral knee disability is denied. Entitlement to TDIU is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs